Bombay High Court
Fr.Rodney Esperance vs Mrs.Vellie M. Andrade & Ors on 27 January, 2017
Author: A. K. Menon
Bench: A. K. Menon
ts818.88
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
SUIT NO.818 OF 1988
Vellie Mary Andrade ... Plaintiff
v/s.
Gloria Immaculate D'Sylva & Ors. ... Respondents
WITH
SUIT NO.34 OF 1989
IN
TESTAMENTARY PETITION NO.155 OF 1989
Mrs. Gloria Immaculate D'Sylva ... Plaintiff
v/s.
Mrs. Cherylanne D'Souza & Ors. ... Respondents
Mr. A. M. Vernekar for the plaintiff in Suit No.818/1988.
Mr. Denzil D'Mello with Ms. Geeta Sonawane and Mr. Austin Fernandes for
defendant no.3(ii) in S/818/1988 and for defendant no.1(a) in TS/34/89.
Ms. Snehal Paranjape a/w Mr. Shrinivasan Mudaliar and Ms. Hiral Thakkar
i/b. Federal & Rashmikant for the plaintiff in TS/34/89 and for defendant no.1
in S/818/1988.
CORAM : A. K. MENON, J.
RESERVED ON : 26 th OCTOBER, 2016
PRONOUNCED ON : 27 th JANUARY, 2017.
J U D G M E N T
1. This judgment disposes the testamentary and administration suits. It borders on prolixity, owing to the body of evidence led before the 1/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:27 ::: ts818.88 Commissioner. The lis pertains to succession to the estate of one Mrs. Anna Isabel Pereira ("Testatrix") who died in Mumbai on 10th January, 1986. She is believed to have left behind a Will forming subject matter of Testamentary Petition no.155 of 1989 filed by the Executor Fr. Rodney Esperance. The administration suit has been filed by Mrs. Vellie Andrade one of the daughters of the testatrix. Late Anna Isabel Pereira married one Ignatius A. Pereira prior to the year 1931.
Ignatius Pereira and the testatrix jointly entered into a lease agreement with the Salsette Society in respect of a plot a land situate at Bandra Gymkhana, Perry Road, Bandra on or about 26th January, 1939. The lease was for a period of 998 years having been executed jointly in favour of the testatrix and her husband. The lessees commenced construction of a house upon the plot but before its completion Mr. Ignatius A. Pereira expired on 29 th July,1941.
Sometime thereafter the testatrix moved into the house named Anthony's Cottage. The testatrix and her husband had four children, their son Raymond Pereira was the eldest born on 20 th January, 1931 followed by Etty a.k.a Etty Netto born on 18 th April, 1935, Vellie a.ka.
Vellie Andrade born on 19th May, 1937 and Gloria a.k.a Gloria Immaculate D'Sylva born on 8 th December, 1939 after her marriage to Austyn D'Sylva. Gloria D'Sylva defendant no.1 was nominated in respect of the plot on or about 2nd August, 1979. The 2/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:27 ::: ts818.88 Society accepted and registered the nomination on or about 25th January, 1980. The testatrix Anna Isabel Pereira died on 10 th January, 1986 and the Society transferred the shares to the name of Gloria on 26th July, 1986. It is an admitted fact that for a considerable length of time prior to and at the time of her demise, the testatrix lived in Anthony's Cottage along with her daughter Gloria and her husband Austyn.
2. The testatrix has bequeathed all of her right, title and interest in the leasehold plot and Anthony's Cottage constructed thereon to her daughter Gloria. Clause 9 of the Will records that during the life time of the testatrix certain jewelery that she possessed had already been given to the daughters. A sum of Rs.2000/- each has been bequeathed to the other two daughters Vellie and Etty. As far as the son Raymond is concerned, the testatrix had during her lifetime permitted him to construct two rooms atop Anthony's Cottage. Raymond was granted a life interest in the said two rooms. Raymond and his family were entitled to use said two rooms as their residence and by way of life interest.
3. When Raymond became aware of the nomination in favour of Gloria, he protested and wrote to the Society questioning their action in 3/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:27 ::: ts818.88 having noted her nomination. Correspondence ensued. It rested with Raymond contending that he would try to resolve the issue but not before the Society denied allegations made by Raymond. Later, after the demise of the testatrix, disputes arose between Raymond, Vellie and Etty on the hand and Gloria on the other in the matter sharing the estate left behind by the testatrix. Gloria relied upon the Will. The others denied its existence. Copies were then provided by Gloria but only after the others asked for copies.
4. Vellie Andrade filed an administration Suit no.818 of 1988 ("Suit 818") against Gloria, Etty and Raymond. The Plaint was declared on 11th March, 1988. It was later amended and re-declared on 5 th March, 1999. In September 1988 Testamentary Petition No.155 of 1989 ("Petition 155") was filed by the Executor named in the Will viz Reverend Father Rodney Esperance ("Fr. Esperance"). Petition 155 resulted in Raymond, Etty and Vellie filing Caveats to oppose grant of probate and affidavits in support of the Caveat. Petition 155 then came to be numbered as Testamentary Suit no.34 of 1989 ("Suit 34").
Parties having led evidence in common based on common issues in both the suits, for the sake of convenience in this judgment Gloria D'Sylva is described as the Plaintiff. Vellie Andrade and her brother Raymond and sister Etty are referred to as "the defendants"
4/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:27 :::ts818.88 The Pleadings
5. In Suit no.818 of 1988 Vellie Andrade claimed that she and her siblings defendant nos.1 to 3 are entitled to 1/4 th share each, in the plot.
The plaint proceeds on the basis that the testatrix was entitled only to 1/3rd of her husband's estate and that 2/3 rd were to be divided amongst all children i.e. plaintiff and all defendants. The testatrix was only a trustee of the shares of the plaintiff and defendants and therefore could not have nominated defendant no.1 in respect of the plot or the 2/3 rd share in it. The plaintiff further states that the testatrix's mother died without leaving a Will and that they received a photo copy of the alleged Will after it was demanded and it is denied that the writing is the Will of the testatrix. It is the plaintiffs case that the testatrix being a natural mother would never have been partial to one daughter. The plaintiff is entitled to 1/4th share just as the other siblings.
6. It is alleged that after the death of the mother Gloria has taken charge of all the assets including the said house property although the plaintiff is not aware of the remaining estate. The plaintiff had "recently" learnt that the shares of the Salsette Society have been transferred to the name of the first defendant Gloria. The nomination in favour of Gloria was bad in law and was liable to be set aside. Vellie sought a declaration that the defendants and she have 1/4 th share each. Since the Society 5/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:27 ::: ts818.88 had transferred the lease in favour of Gloria pursuant to the nomination in her favour, a declaration was also sought that the transfer of the shares of the society is bad in law and that the same should be set aside. The plaint also sought disclosure of other assets left behind by the testatrix. By an amendment paragraph 6(a) and 6(b) were added. They contain averments that on the demise of the testatrix the siblings became entitled to 1/4 th share each i.e. 1/4th share of the testatrix and 2/3 rd ; i.e. 1/6th each and 1/12th each from the plot and that parties are entitled to their share in the structure in the same ratio. Prayer clause (aa) seeks an appropriate declaration pertaining to the super structure consisting of 4 rooms, a kitchen on the ground floor and a garage on the west side.
th
7. In her written statement dated 14 February, 1990 Gloria D'Sylva who is the only contesting defendant, has contended that a suit is filed 49 years after the father had passed away on 26 th July, 1941 and that neither the plaintiff nor defendants no.2 or 3 made any claim in relation to the father's share now being referred after the children attained majority. It is the first defendant's case that when the father Ignatius is died in 1941 by the rule of survivorship, the testatrix Anna Isabel Pereira succeeded to the property and therefore by operation of law Anna Pereira being a joint tenant and succeeded to the property as 6/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:27 ::: ts818.88 sole owner. When the testatrix died on 10 th January, 1986 a nomination had already been made as of 26 th August, 1970 and was acted upon by the Society. The defendant no.1 questioned the jurisdiction of the Court to hear the suit since no notice was given to the Registrar of Co-operative Housing Societies under Section 164 of the Maharashtra Co-operative Societies Act.
8. When Suit 34 was originally filed as Petition 155, one Advocate Colaco had filed an affidavit in support. Mr. Colaco had prepared the Will apparently on the instructions of testatrix and he was an attesting witness thereto. Mr. Colaco has inter alia deposed that on 26 th September 1985 he was present along with Joyden Fernandes and Dr. Gupta when the Will was executed by the testatrix and that he assisted the testatrix to affix her left hand thumb impression to the Will. He deposed that the endorsement appearing on the Will that the testatrix was of sound and disposing mind was made by Dr. Gupta in his hand writing and that it existed at the time of execution of Will.
In other words, the endorsement was made prior to the execution of Will.
9. In the affidavit in support of the Caveat filed by Raymond, he has contended that the Will dated 26 th September 1985 was null and void.
7/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:28 :::ts818.88 The property devolves upon Raymond and three sisters. That he has 1/4th share in the property and therefore has a caveatable interest.
Raymond contends that the testatrix held 2/3rd share as guardian for each of the children. In paragraph 14 Raymond says he "does not admit" that the Will is executed on 26 th September 1985. He does not admit correctness of the schedule to the Will or the statements of the attesting witnesses. Raymond has relied upon the letters written by the society in which he inter alia states that it was agreed between his mother and him that he will have full ownership rights to the first floor premises. He relies upon the reminder sent on 31 st May 1983. The record indicates that the society replied on 14 th June 1983 but this reply has not been produced by Raymond, who by rejoinder dated 21st August 1983 stated that he will try and resolve the issues amicably and requested the society to consider the claim.
Thereafter, Raymond does not appear to have taken any steps till 28 th January 1988 when he called for the Advocate's letter to be issued to society requesting the society not to act upon any request for development. In the meantime an appeal came to be filed on 26 th July1988 against the order passed by the Revenue authorities entering the name of Gloria in the Revenue records wherein Raymond mentions that the testatrix had poor state of mind and that she has not made any Will.
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10. In her affidavit in support of the caveat dated 26 November 1992 Vellie Andrade has contended that in the last year of her life, the testatrix was bedridden, suffering from high blood pressure, diabetes, Arthritis cardiac ailments, was senile, did not have mental capacity of being of a sound and disposing mind and incapable of understanding implications of any writing and therefore incapable of making the testamentary disposition. Gloria got the Will prepared by Gloria's Advocate Mr.Colaco. Dr. Pinto was the family doctor and that Dr. Pahlajani and Dr. Kumar were specialist doctors who had attended to the testatrix's ailments. None of these persons were called to testify on her condition. Instead Dr. Gupta a "non practicing" doctor employed with Burroughs Welcome was called. The affidavit of Vellie further states that the executor Fr. Esperance was a close friend of Gloria and her husband. The attesting witness Mr. Colaco was Gloria's Advocate. The other attesting witness Joyden Fernandes was a school teacher and brother-in-law of Fr. Esperance (Executor).
11. According to Vellie,the other circumstances that evoke suspicion is that the testatrix could read and write English and an attempt seems to have been made to get her to sign on the Will. However, it appears that she either declined to sign or could not sign since she was not in proper physical and mental condition and hence is believed to 9/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:28 ::: ts818.88 have put her thumb impression. Advocate Colaco who attested the Will does not state that he interpreted and explained the contents before the execution of Will. Mr. Joyden Fernandes does not put the date on which he attested the Will. Dr. Gupta who claims to have attended the execution of the Will has also not mentioned when the certificate of physical and mental condition was issued. These are suspicious circumstances surrounding the execution of the alleged Will. The aforesaid persons having conspired in preparing and getting the Will executed. The purported Will is therefore null and void and inoperative in law.
12. According to the plaintiff, in the last year of life the testatrix was in and out of Nanavati hospital and had become senile for a year before her death and often used to say that her father and her husban d were waiting for her, alluding to the suggestion that she would not live very long. According to the plaintiff, her mother had left considerable jewellery which Gloria had taken away. The testatrix loved all her children and could not have made the Will as presently appearing and it was an unnatural document. Specific reference is made to the instance when Raymond had sought permission to build two additional rooms on the first floor, to which the testatrix reportedly said that she has four children. The transfer of the plot 10/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:28 ::: ts818.88 and shares have also been assailed and the contents of affidavit of Raymond have been adopted in this behalf. A grievance is made to the effect that even after one month of mother's demise the copy of the Will was not furnished. The Defendant nos.2 and 3 asked for a copy but Gloria did not provide a copy for two weeks. She contends that Gloria did not file any probate petition till nine months after Suit 818 was filed. Gloria has since been restrained from disposing of the property.
13.Raymond
died on or about 20.3.1983 and his widow Joyce on
28.2.1996 but despite notice, the plaintiffs took no steps to implead the children. Their daughter Cherylanne took out a Chamber Summons which was allowed on 24.7.1996 and the abatement came to be set aside. Cherylanne D'Souza and Alison Goveia were brought on record as defendant no.1(a) and (b). Cherylanne has filed the affidavit/written statement dated 14.6.2005 adopting contents of the affidavit filed by her late father.
14. Etty Netto also filed an affidavit on 24.12.1992 and in affidavit in support which proceeds on the same lines as affidavit of Vellie and Raymond. She claims 1/3rd undivided share and inter alia states that she was earning and had supported the testatrix financially at the 11/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:28 ::: ts818.88 material time since Gloria and her husband were earning paltry sums.
15. On the basis of aforesaid pleadings the following issues came to be framed in Suit 34.
"1. Does the plaintiff prove the due execution and attestation of the Will dated 26th September, 1985 ?
2. Do the defendants prove that the testatrix did not have the necessary mental capacity to make any testamentary dispositions and hence the purported will of the testatrix in null, void and inoperative in law ?
3. Whether the plaintiff is entitled to probate of the Will as prayed ?
4. What order ?"
15.Vide order dated 25.11.2004 the aforesaid issues were treated as issues in Testamentary Suit No.34 of 1989 as also Administration Suit No.818 of 1988. On 23rd February, 2012 common evidence was directed to be led by this Court since the parties in the Suit are same and the issues are also common. The parties have led extensive evidence before the Commissioner who filed his final report on 20- 12-2013. Arguments commenced before me on 3 rd October, 2016 and the matter remained part heard. Arguments were concluded on 26.10.2016.
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16. Suit No.818 of 1988 was filed first in point of time and all the parties have agreed that the evidence was being led in common, I am conscious of the fact that issues framed on 25th November, 2004 were to be treated as common issues vide order dated 23rd February, 2012. However, Order XIV mandates that the issues arise when a material proposition of fact or law is affirmed by one party and denied by the other. The Court is required after reading the plaint and the written statements to ascertain material proposition of which the parties are at variance pronounce judgment on all issues.
ig In Suit No.818 of 1988, written statements have been filed by defendant No.1 Gloria and defendant no.3 Raymond. Defendant No.3 Raymond supported the case of Vellie Andrade while reiterating the contents of his affidavit in support of caveat filed in Petition 15.
Gloria has in her written statement denied Vellie's claim in the suit and has supported the contents of Will, nomination and transfer of leasehold rights inter alia on the ground of non-joinder of the Salsette Society. In view of the above position the fact that issues were framed only in Suit No.34 of 1989 but since parties proceeded to record common evidence, the following additional issue no. 3A was framed on 20th January, 2017 :
3A. Whether the plaintiff and defendant nos.1 to 3 are entitled to 1/4th share each in the leasehold plot of land being Old 13/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:28 ::: ts818.88 Plot No.29/New Plot No.40, Kantwadi Scheme, CTS No.253, St. Paul's Road, Bandra, Mumbai 400 050 in the event it is held that the deceased - Anna Isabel Pereira had died intestate ?
Learned Counsel for the parties have during the course of submissions taken me through the evidence of the witnesses and the relevant documents.
The Evidence Evidence of Rev.Father Esperance / PW-1
17. In Suit 34, the Plaintiff (Executor) Fr.Esperance PW- has filed his affidavit of evidence dated 2.2.2005. Fr. Esperance was the principal of St. Andrew's School and according to him Gloria approached him for a teacher's job in K.G. Section in 1981 and Gloria was interviewed and appointed by Fr. Esperance. Fr. Esperance, regularly visited the testatrix since she was a pious lady. He felt sorry that towards the end she could not attend church regularly but she was happy that she could perform her religious duties due to his visits. According to Fr.
Esperance, the testatrix was not on good terms with Raymond but her relations with other daughters was cordial but Gloria was her favourite child. The testatrix was in sound state of mind and health, although she was bedridden she could understand and communicate effectively had asked Fr. Esperance whether he would act as an Executor to the Will and Fr. Esperance agreed. According to 14/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:28 ::: ts818.88 him even earlier a Will had been prepared under which one Arnold Drego was appointed Executor. However, since relations with said Drego were strained and he had become hostile, the testatrix was desirous of making new Will with same provisions and in September 1985, she informed Fr. Esperance that she would like to execute her Will soon and would informed him on telephone. He was later told that the Will was to be executed on 26th September, 1985 and that he should remain present in the evening for execution of the Will. In his further examination in chief on 11.6.2005 held at his residence Fr. Esperance identified the Will and signatures of Joyden Fernandes and Dr. Gupta. He admitted that he did not know about thumb impression since he had not seen it before. Dr. Gupta (who has endorsed sound and disposing mind of testatrix) was an efficient, honest and competent doctor known to Fr. Esperance since 1977 and was employed with Burroughs Welcome. Fr. Esperance also knew the second attesting witness Joyden Fernandes for 30 years. The testatrix knew Dr. Gupta and Joyden Fernandes since they were residents in neighborhood.
18. Fr. Esperance was thereafter cross examined. During his cross examination by both the plaintiff and other defendants, Fr. Esperance admitted that the Will had initially come into his possession about 20 15/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:28 ::: ts818.88 years ago He has suffered from some illnesses including sodium deficiency which has affected his memory and that it is possible that he cannot recall everything. He believed that the testatrix was bedridden since about 1977. He knew Gloria and all her siblings. According to Fr. Esperance Eucharist (communion) can be given to a sick person and Fr. Esperance did administer Eucharist to the testatrix. He did not visit the other sisters as much as he did Gloria nor did he mingle with Raymond except that they "helloed" each other if they met on the road.
19. The testatrix was prejudiced against her son Raymond and the other daughters Vellie and Etty. Fr. Esperance could not understand the prejudice towards the other daughters. He could not deny that the other daughters may have visited the testatrix everyday. Fr. Esperance was quite sure that the testatrix would make a Will that was satisfactory to all. Fr. Esperance knew Dr. Owen Pinto the family doctor of the testatrix till her demise. Dr.Gupta had not treated the testatrix. He reiterated in cross examination that though doctor Gupta was Medical Director with Burroughs Welcome, he would treat Fr. Esperance and others privately. Dr. Gupta was stated to be ethical mind, honest and competent and he was lived nearby a Church where Fr. Esperance was an assistant Parish Priest. He deposed that Gloria may have met Dr. Gupta at some party and may have requested Dr. 16/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:28 ::: ts818.88 Gupta to certify the condition of her mother, the testatrix. According to Fr. Esperance he only gave Dr. Gupta the address and directions to reach Anthony's Cottage on the day the Will was believed to have been executed.
20.In answer to a specific question by Mr. Vernekar, the learned Advocate appearing on behalf of the plaintiff in Suit 818, Fr. Esperance stated that he did not know what Dr. Gupta did at the house of testatrix (at the time of execution of the Will) since according to the witness the others were in a different rooms but he has admitted that Dr. Gupta was present with Fr. Esperance at the testatrix's house on the day when the Will was executed. He also did not remember who had called him to the house of the testatrix on the day when the Will is stated to have been executed and that it is possible that Gloria had called him. He admitted that Joyden Fernandes was his brother in law but did not remember having called Joyden Fernandes. Fr. Esperance admitted that Gloria's family and that of Joyden came from the same village and were known to each other quite well. In fact the flat in which evidence had been recorded was owned by Joyden Fernandes since both Fr. Esperance and Joyden Fernandes had flats in the same building. He has deposed that he was not indebted to Gloria and her family in any way and he was not aware whether the others viz.
17/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:28 :::ts818.88 Advocate Colaco, Joyden Fernandes and Dr. Gupta were in any way indebted to Gloria and her family.
21.Fr. Esperance denied all suggestions that he had joined hands with Gloria firstly by introducing Mr. Colaco, getting Joyden Fernandes as attesting witness and getting Dr. Gupta to sign as a Doctor. Fr.
Esperance stated that Gloria made up her mind to engage Advocate Colaco and to request Joyden Fernandes and Dr. Gupta to attend at the time of execution of a Will.
22. On behalf of defendant no. 2 and 3 Mr. D'Mello their learned Advocate adopted the cross examination of Fr. Esperance as conducted by Mr. Vernekar. In the course of cross examination by Mr. D'Mello a suggestion was made to the witness that he was in the habit of leaving Gloria's home late in the evening at least thrice in the week after attending parties. This was objected to on behalf of the plaintiffs as being put to the witness without any basis in the pleadings or the evidence of Raymond which Mr.D'Mello's clients had adopted. The suggestion however was denied by the witness. Fr. Esperance admitted that although aware that other sisters may also be looking after the testatrix, whenever he visited the testatrix, Gloria was the main person looking after her. He was not aware whether the testatrix would call 18/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:28 ::: ts818.88 upon her other two daughters when she was unwell and Gloria and her husband were at work. He did not know about the finances of the testatrix or her properties. Although he had never stated that the other two daughters were not taking care of their mother but it is appeared to him that Gloria was shouldering the entire responsibility. Fr.
Esperance admitted that although the relationship between the mother and the two other daughters were not at its best, he saw no reason why the testatrix would not give them their due share in accordance with law and equally rather Fr. Esperance as a layman expected that the Will made in accordance with law and that the property would be divided equally. He did not believe that apart from Gloria and her husband he had told anyone else that he was appointed as an executor of the Will. According to him when the signing process was underway, he left the premises and he believes that he left before the completion of the process he did not met with the testatrix after she had executed the Will. He admits to have wished the testatrix as stated in his affidavit in chief before she executed the will when he was told that his signature was not necessary.
23. According to Fr. Esperance he started out from St. Andrews School and went to the house of the testatrix there were not many people but he saw Joyden Fernandes and Dr. Gupta and Gloria's sisters. However 19/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:28 ::: ts818.88 later he says that he was not sure if Gloria's sisters were present.
Fr. Esperance has deposed in his cross examination that he had no occasion to meet Advocate Colaco in connection with the Will since Advocate Colaco was lived in Pune. In response to question by D'Mello as to whether Anna Isabel Pereira, the testatrix knew what she was doing. He replied that it would not be correct to say that "Anna Isabel Pereira was senile on account of old age, being bedridden with a number of illness or incapable of understanding the implications of any writing." These words are similar to those in the defendants pleadings. He denied a suggestion made by Mr. D'Mello that he was colluding to help Gloria usurp the property. Fr. Esperance denied all suggestions that he had joined hands with Gloria firstly by introducing Mr. Colaco, getting Joyden Fernandes as attesting witness and getting Dr. Gupta to sign as a Doctor. Denying such suggestion Fr. Esperance stated that Gloria made her in mind to request to Joyden to engage Advocate Colaco and request Joyden Fernandes and Dr. Gupta to attend at the time of execution of a Will.
Evidence of Colaco / PW-2 th
24. Mr.Colaco has filed an affidavit of examination in chief dated 24 March, 2005. He retired from practice in 1993 and since lived in Pune. He knew Gloria and her husband Austyn since 1985 when 20/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:28 ::: ts818.88 Gloria was working in Sacred Heart High School and Austyn was working in Air India. Gloria was introduced to him by Fr. Esperance and that she had gone to meet him in August 1985 to discuss her mother's property in the Salsette society. According to Advocate Colaco, Gloria had stated that her mother intended to make a deed of assignment so that the plot of land could he held jointly by the testatrix and Gloria so that it could pass to Gloria by survivorship. The instructions as to the deed of assignment given by the testatrix prior to August 1985 and a final decision to be conveyed through Gloria. Since the testatrix was not able to leave her residence Advocate Colaco went to her residence, she was bedridden on account of all her physical ailments.The testatrix had also requested for such a deed and accordingly a draft was prepared and sent by Advocate Colaco to the Salsette society for approval along with letter dated 19 th September, 1987. He has deposed that Salsette Society asked him to resubmit the draft with all the blanks filled in. However, thereafter Gloria had instructed him against proceeding with the deed of assignment considering cost of stamp duty and said that her mother would make a Will instead. In this connection the testatrix had wanted to meet Colaco for giving him instructions for preparing the Will. He visited the testatrix after a day or two, when he was instructed that a sum of Rs.2000/- would be bequeathed to each of the daughters Vellie and 21/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:28 ::: ts818.88 Etty. Raymond and his family could reside on the first floor portion for life. Anthony's Cottage and the residual estate would also go to Gloria and Fr. Rodney would be the sole Executor.
25. Two days thereafter, Gloria collected the draft of the Will. The following day Gloria informed him that testatrix had approved the draft and accordingly he fixed 26th September, 1985 as the date for execution of a Will. On the previous day Gloria collected the engrossed copy. Advocate Colaco further deposed that on 26 th September, 1985 he went to the St. Anthony's Cottage and Fr. Rodney and Dr. Gupta arrived there at little later. Fr. Esperance introduced Dr. Gupta to Advocate Colaco for the first time. Thereafter, the testatrix asked him to help her to execute the Will whereupon Advocate Colaco asked her whether she had read and understood the Will, to it she said "yes" and repeated her request to help her executing. Advocate Colaco then held the Will against a book for her to sign. However, since her hand was shaking he told her that she could affix her thumb impression.
Accordingly Advocate Colaco assisted the witness to affix her thumb impression on the Will. He identified the said thumb impressions as those of the testatrix and the endorsements made by him regarding the the thumb impressions. He signed as an attesting witness on page 5.
The testatrix then asked Joyden Fernandes to sign and he did so in the 22/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:28 ::: ts818.88 presence of Mr.Colaco. Advocate Colaco identified the signatures on the Will as also the endorsements.
26.During his cross examination Advocate Colaco has deposed that the testatrix had insisted on the bequest to Gloria because she alone had looked after the testatrix. The witness admitted that from time to time he had instructions from the testatrix to draft the Will till its actual execution. He had met Gloria in the matter of the Will. As regards the scribble appearing on the foot of the Will on the first page, it indicated an attempt to sign the Will. According to Advocate Colaco when he suggested her that the Will can be executed also by affixing her thumb impression she agreed.
Deposition of Joyden Fernandes /PW-3 th
27. Mr. Fernandes in his affidavit in lieu of examination in chief dated 18 January 2005 deposed that he accompanied Fr. Esperance to the house of the testatrix on 26th September 1985. Advocate Colaco and Dr. Gupta were already present at the house when he entered the room. The testatrix recognised him and smiled. He enquired about her health and she nodded her head. According to Joyden, in his presence Dr. Gupta examined the testatrix and found her capable of understanding her actions. He then proceeds to depose that 23/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:28 ::: ts818.88 Advocate Colaco read out the document and took it to the testatrix who attempted to sign it but as she was feeble, Advocate Colaco helped her affix her thumb impression. Thereafter, Advocate Colaco attested the thumb impression and then the testatrix asked Joyden Fernandes to sign which he did. It was thereafter that Dr. Gupta made his endorsement as to his opinion after examination of the testatrix. In further examination in chief as to the identity of the mark(s) on all pages of Exhibit-A, the witness confirmed that it was the left hand thumb impression of the testatrix.
ig He also confirmed that hand
written endorsement below thumb impressions were that of
Advocate Colaco. Joyden also knew Dr. Gupta since 1980-81 and
probably earlier since Dr. Gupta was treating one Fr. Marcelline
Remediou's father, who had briefly stayed in their building. In 1984 Joyden had tutored Gloria's son and he was thus in touch with Gloria. He further stated that the request to sign as attesting witness came in or about 26th September 1985 which he remembered since he and his family had shifted to his new premises just about a week earlier. The request came in the evening at about 5.30 - 6 pm while he was in tuition class. Fr. Esperance had informed him of the venue. In the cross examination he stated that he reached the venue between 5.30 and 6 pm. According to him he went on his scooter. Fr.
Esperance proceeded on his own scooter and both of them arrived 24/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:28 ::: ts818.88 together. Advocate Colaco and Dr. Gupta were also present there as were Gloria, the testatrix and probably Gloria's daughter Pearl.
According to Joyden, the testatrix was in the room which was to the left of the dining table. He went into her room after he arrived and process of the execution of the Will started immediately. The testatrix, Gloria, Colaco, Dr. Gupta and Fr. Esperance were already present in the room prior thereto when he entered. He enquired about health of the testatrix and the testatrix smiled. He could not recollect the conversation he had with testatrix. Fr. Esperance informed him that the testatrix was unwell. When Joyden left room it must have been around 6 pm. According to him Fr. Esperance was in and out of the room. He was unable to confirm whether Fr.
Esperance was in the room when the Will was executed. However, he does recall that Fr. Esperance was in house when the Will was being executed. According to Joyden, Advocate Colaco read out the Will while he was holding it. He was asked specific question whether testatrix was speaking or only nodding and smiling. The witness could not recall the testatrix having spoken (in his presence) while describing the situation in the room. She must have been in his late 70s but was not looking very feeble or weak. In further cross examination the witness confirmed that Advocate Colaco read the Will. He did not pay attention to the contents nor does he recall that 25/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:28 ::: ts818.88 Fr. Esperance was in the bedroom at that time. The witness, however, confirmed that the testatrix affixed her thumb impression in his presence but he does not recall any third party assistance. As far as Dr. Gupta is concerned, he was carrying a stethoscope and Joyden was present during clinical examination. His statement that the testatrix was of sound mind was voluntarily based on Dr. Gupta's endorsement and clearly not out of his own experience. When asked as to why he had entered date below signature of the Will. He stated that the date has already been entered by Advocate Colaco.
28.Mr. Vernekar, learned counsel appearing on behalf of the plaintiffs put his case to the witness suggesting collusion and connivance of all concerned due to incapability of the testatrix to execute the Will, and in order to help Gloria to usurp the property. The suggestion was denied by the witness.
29.The cross examination of Joyden Fernandes then continued by Mr. Denzil D'Mello, learned Advocate for defendant nos.1(a) and (b) in the Suit 818. According to him the testatrix held the Will in her hand. He was present when the thumb impressions were affixed on the document. The stamp pad was been held by Gloria in her hand.
Mr.D'Mello put a number of questions to the witness including his 26/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:28 ::: ts818.88 clients' case suggesting collusion and connivance of all concerned which suggestion the witness promptly denied. There was no re-
examination. I found the deposition of Mr. Fernandes believable although Mr. Vernekar and Mr.D'Mello sought to contend that the whole process of execution of the Will was under suspicious circumstances. The time when Mr. Fernandes claims to have left his location and the time of his arrival, spending time with the testatrix etc and the time of his departure as disclosed by the witness was full of contradictions, After all the witness was deposing to events that took place many years ago. The fact remains that the witness was consistent in saying that the execution of the Will took place in the evening hours.
Evidence of Gloria / PW-4
30. Gloria was thereafter examined. She had filed the affidavit of evidence dated 19.6.2006 wherein she deposed that the plot was jointly leased to her late parents by the Society and they had jointly taken a loan from the society for construction of a house. Gloria's mother - the testatrix has also taken loan from her sister, Mary Pereira.
Later, the testatrix had sold property at Borivali in order to repay her sister. According to Gloria after the demise of her father in 1941, they all stayed together in father's ancestral house. At one stage the 27/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:28 ::: ts818.88 testatrix has decided to give back property i.e. plot and cottage to Salsette society since she had no means to repay the loan. However, her parents and relatives convinced her to rent out the cottage, as a result she let out the cottage and was able to repay the loan by 1947.
The tenant thereafter vacated in 1949 and the family moved in cottage in October 1949. Raymond was eldest sibling in the family.
Gloria has deposed that Raymond had exhibited a violent temper. As a child he would have arguments and run away and stay away from home till relatives traced him and brought him home. Raymond decided to marry Joyce D'Souza, who was 15 years elder to him.
The testatrix was against his liaison with Joyce. Raymond left home and married Joyce. Only Etty attended the wedding. Several years later he contacted relatives of the testatrix to seek permission to build rooms above Anthony's Cottage. The testatrix initially refused to relent but on plea of the relatives in 1961 gave permission to Raymond to build a flat on terrace and also gave him a loan of Rs.2000/- which apparently Raymond has not repaid. Gloria cited instances demonstrating Raymond's short temper and act of misdemeanour one of which resulted in a police complaint being filed against Raymond pursuant to which he was summoned to police station and was warned not to obstruct repair work at Anthony's Cottage.
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31. Due to his temper the testatrix was scared of Raymond and she contacted the Chairman of Salsette Society, one Mr.J.S.Pereira and informed him of her desire to transfer plot to Gloria's name in view of Raymond's conduct. The Chairman of society suggested filing of a police complaint and accordingly Gloria filed a complaint. The Chairman also suggested nomination in favour of Gloria in respect of the shares. This was accordingly done in 1979 and the society accepted the nomination in 1980. In June, 1984, Austyn was posted to New York for three years and one Mrs. Crissy Soares ig approached the testatrix claiming to have been sent by Fr. Nereus Rodrigues seeking permission on behalf of Raymond to extend the flat that he had constructed. Gloria enquired with Fr. Rodrigues who informed Gloria that he had not sent Mrs. Soares. Further enquiries revealed that in fact Mrs. Soares had approached testatrix at the request of Joyce, Raymond's wife. In 1978, the testatrix had a heart attack and some time later fractured her femur bone and spent about one month in hospital. The testatrix was hospitalised four times for heart ailments, once for eye surgery and once for femur bone fracture, Etty and Vellie spent only one night in the hospital. Raymond did visit mother two times but did not spend even one night in the hospital.
According to Gloria, she and Austyn paid all expenses and they were not reimbursed. Raymond and sisters did not offer any money for 29/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:28 ::: ts818.88 testatrix's health care. Raymond, Etty and Vellie did not offer to look after the mother specially since the mother was confined to bed for the last six months of life.
32. Fr. Jonathan Dias was a Parish Priest, who introduced the testatrix to Fr. Esperance, who would then visit Anthony Cottage regularly and on one such occasion the testatrix asked him for help in transferring the property to Gloria and that is when he recommended Advocate Colaco. Advocate Colaco ig then spoke to the testatrix and Gloria. He suggested execution of a Deed of Assignment but since it was turning out too expensive, he suggested execution of a Will. Advocate Colaco came home and prepared a hand written Will and read it out to the testatrix who approved the same. Advocate Colaco offered to attend to the formalities and stated two witnesses were required. The testatrix had reportedly asked Advocate Colaco whether he could be one witness to which he agreed. As for the second witness, the testatrix asked Fr. Esperance, who suggested that Joyden Fernandes could be the second attesting witness. It is Advocate Colaco, who suggested that the presence of a doctor would help. Thereupon Gloria asked Dr. Pinto whether he would oblige but he refused. She then contacted Dr. Gupta through Fr. Esperance According to Gloria, Advocate Colaco gave her the typed Will. She then contacted 30/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:28 ::: ts818.88 Advocate Colaco, Fr. Esperance, Joyden Fernandes, and Dr. Gupta and fixed date for execution on 26th September, 1985.
33. On the appointed date Dr. Gupta examined the testatrix and found her all right. Advocate Colaco read out the original Will Exhibit P-
1 and gave it to testatrix, however, she could not sign. Thereafter Colaco helped her to put thumb impressions and Colaco has signed as witness to the execution of Will. It is thereafter that Advocate Colaco requested Dr. Gupta to make endorsement ig on it which he did.
According to Gloria till the testatrix died she was in her senses and capable of telling them if she needed something such as food, water, medication or any help in answering nature's call. She spent most of the time praying the Rosary and she was able to recognise and speak to people she met with. She could sit up in bed whenever she wanted.
During two months prior to her death, she was unable to feed herself.
Gloria and her daughter use to feed her. According to Gloria when the testatrix passed away she was being fed by Gloria and suddenly slumped forward. Gloria immediately informed Vellie and Etty and she also informed Dr. Pinto and Dr. Chellaramani.
Thereafter Dr. Pinto issued the death certificate. Mr. Rozario was then requested to make funeral arrangements.
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34. Gloria was cross examined on 23rd June, 2006. A suggestion made that Gloria had left matrimonial home and returned to Anthony cottage only with intention of grabbing the property was promptly denied. Gloria deposed that her mother had asked her to stay with her since Vellie and Etty had no time for her. While Vellie did not visit often, although Etty was residing only a lane away she only visited like a guest over and that too occasionally. She admitted that her attorney had advised her to file the petition and denied that Fr. Esperance had asked her to do so. According to Gloria, Etty ig was not helping mother or to meet household expenses and initially the testatrix was supported by her late husband Ignatius's ex-employee. In addition, she had let out two rooms and received rent for the same. Gloria had completed her Arts and Craft diploma in 1964 and that she started working in 1964. She also began giving tuitions and was contributing towards household expenses. Etty, Vellie and Raymond did not contribute after their marriages. A suggestion that she was appointed as the Assistant Teacher Nursery only because of Fr. Esperance was denied promptly but she deposed that she had substituted for one Ms. Teresa Delima who had undergone a cataract surgery and was asked to teach the Nursery class. The principal of that school was Fr. Alex Rebello and she was therefore not interviewed by Fr. Esperance. She admitted that Fr. Esperance had later appointed her at Sacred Heart 32/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:28 ::: ts818.88 school but she left the school in 1987. Gloria denied a suggestion made by Mr. Vernekar that Vellie, Etty had looked after the testatrix when Gloria had been to USA between 1984 and 1986. As far as Etty was concerned, Gloria deposed that their mother always felt that Etty was a "big shot". Etty did not want the testatrix to come to her home.
Gloria deposed that Advocate Colaco was also her mother's Advocate. She admitted that she had also met Colaco on some occasions for counseling and guidance. To the question whether in 1985 the testatrix was 80 years of age, Gloria replied that testatrix was in sound state of mind and though her movements were slow.
She use to sit up in bed rather than walk. To specific question whether she could speak, Gloria answered in the affirmative and that she would ask Gloria and her family exactly what she wanted.
She would also interact with the visitors. According to Gloria testatrix had given instructions to Advocate Colaco in August 1985 to draw up the Deed of Assignment. A specific question was posed to Gloria by Mr. Vernekar as to why the testatrix had decided to not to execute the Deed of Assignment after the draft was prepared. Gloria replied that the Deed of Assignment was not executed due to high cost, however, the testatrix felt that she would not live very long. She denied suggestion that the testatrix was incapable of giving instructions as to the Deed of Assignment or the Will and that it is 33/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:28 ::: ts818.88 Gloria who has done so. In further cross examination Gloria stated that she had in fact approached Dr. Pinto for endorsing and certifying the state of mind of her mother but Dr. Pinto had declined to come stating that he was a good friend of the entire family.
According to Gloria the Will was executed between 4.30 and 5.00 pm and she was in house and when asked to certify Dr. Pinto refused to come. When a suggestion was put to Gloria that Dr. Pinto did not come since he knew condition of the testatrix and refused on ground of being the friend of entire family, the correctness of the suggestion was denied. According to Gloria, Fr. Esperance after taking instructions from Mr. Colaco about the date informed Joyden Fernandes that he should be witness at the time of execution of Will.
35. As for the order in which persons arrived, she replied that Advocate Colaco came first, followed by Fr. Esperance and Joyden and thereafter Dr. Gupta arrived. Advocate Colaco Fr. Esperance, Joyden Fernandes and Dr. Gupta, Gloria and her daughter were present in the room, however, her daughter left the room. This probably explains why Advocate Colaco had deposed that there were other ladies in the room as well. According to Gloria her mother greeted those persons. She spoke to Advocate Colaco, who said that he would read out the Will and thereafter spoke to Dr. Gupta, who said that he was going to 34/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:28 ::: ts818.88 examine the testatrix. Likewise she spoke to Fr. Esperance, who was present. A specific question was asked; whether apart from saying yes, the testatrix spoke any other words to which Gloria replied in the affirmative. According to Gloria, Advocate Colaco has come with the original Will and the testatrix did not require physical help to execute the Will. She put thumb impression on the Will. She denied suggestions that the original will was lying with Gloria and that Gloria had fixed execution of the Will. The contents were read out accordingly. Gloria denied suggestion that the mother was senile as also the suggestion that a conspiracy was hatched by all the aforesaid persons. When asked how the testatrix asked Joyden to sign the Will Gloria replied that the testatrix nodded her head to Joyden to come and sign the Will. Advocate Colaco meanwhile told him to sign.
36. Cross examination of Gloria was then conducted by D'Mello. Gloria she did not disclose existence of the Will to Raymond and Etty, who came to ask her in February 1986 and only thereafter a copy of the Will was given to Vellie after taking an acknowledgment from her.
Gloria then gave the Will to Fr. Esperance at the time of applying for probate. Suggestions that her mother was not allowed to speak or meet anybody without her knowledge were promptly denied. Gloria denied suggestions that all statements made in her affidavit by way of 35/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:28 ::: ts818.88 examination in chief, alluding to the demeanor of Raymond and his wife Joyce were incorrect and stood by her deposition. It was suggested by Advocate D'Mello that Gloria had falsely deposed to the effect that as a result of Raymond's misbehavior the testatrix had been advised by one J.S. Pereira of the Society to transfer of plot since J.S. Pereira has passed away prior to 1979. This was denied. Gloria also denied having deliberately restricted siblings' contact with the mother. Finally, Gloria denied that her mother was senile, incapable of making any testamentary disposition and that the Will was in fact drawn up according to wishes of Gloria in an attempt to usurp property assisted by Fr. Esperance and his contacts including Joyden Fernandes, Dr. Gupta and Advocate Colaco.
Evidence of Dr. Gupta /PW-5 :
th
37. Dr. Gupta has written a letter dated 29 March 2006 Exhibit PW5- 1 and which was proposed to be read in evidence as his examination in chief. Understandably, there was a preliminary objection about letter being treated as his deposition. Later the witness has confirmed his authorship and its contents and ultimately the letter came to be read in evidence on or about 3 rd February 2007. In his further examination in chief Dr. Gupta was shown Exhibit P-1. He confirmed endorsement on the Will certifying the state of mind of 36/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:28 ::: ts818.88 testatrix. He further confirmed that he was a qualified consulting physician having obtained his MBBS degree and M.R.C.P. He confirmed having affixed his rubber stamp to the Will which he deposed was that of the testatrix whom he had personally examined.
Dr. Gupta then explained circumstances under which he put remark and signed. He had received message from Gloria whom he had met at Fr. Esperance's place. Dr. Gupta knew Fr. Esperance because he was the principal of St. Andrews School where Dr. Gupta's son was a student and they were on friendly terms since then.
He had visited Anthony cottage and found the testatrix in reasonably good health and her heart, pulse, blood pressure and breath were also normal. He had talked to her for about 15 - 20 minutes and found that her higher functions i.e. cognitive senses including perception, awareness, memory and her intelligence were good and sufficient to arrange for the distribution of her assets and therefore he certified her state of mind. Dr. Gupta clarified that this happen twenty years ago. He has not read the Will till it was shown to him nor was the witness aware of the date. He learnt of the litigation only when he was asked to attend as a witness and face cross examination. He provided details of degree as practice at K.E.M. Hospital for four and half years and obtaining his MRCP from Edinburgh. He claimed to have seen and treated about 30,000 patients. He joined Burroughs 37/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:28 ::: ts818.88 Welcome in 1967 but he was permitted to practice privately.
Attempts were made to question his right to practice privately. To which witness deposed that Burroughs Welcome was part of the Welcome foundation which owed 100% of the company and as a part of their business policy Burroughs welcome encouraged such practice.
38. Attempts were made to question the legitimacy of Dr. Gupta treating patients during his employment with Burroughs Welcome. There was not much headway made in this respect specially since Dr. Gupta has deposed that Welcome Foundation itself encouraged such practice and the provisions of Maharashtra Medical Council Act applies to the transfer of place or residence or practice. Dr. Gupta deposed that Gloria had informed him that the testatrix wanted to make a Will and she wanted his opinion. Dr. Gupta did not enquire of Gloria whether her mother was suffering from some ailment but he enquired from the testatrix whether she was under any care. He admitted that the testatrix was not his patient and he has never met her earlier. The sole purpose of visit was to determine medical fitness of the testatrix and nothing else. He estimated the age of testatrix as more than 70 years but he admitted later that the testatrix may have been 80 years old. He did not remember the testatrix at any time having got down 38/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:29 ::: ts818.88 from the bed. He did not remember whether she was confined to the bed or the room but he does not remember whether he had asked the testatrix whether she was suffering from any illness. Dr. Gupta has deposed that in order to assess her higher functions such as cognitive functions/senses of her ability to disposing the mind he had asked about her family but he did not remember all the details but he reached his conclusions as recorded in the opinion. Dr. Gupta did not remember the exact duration of his medical examination. He has deposed that after writing down his opinion he affixed his rubber stamp. Although he admitted that he was not super specialized in neurology, he denied the suggestion that he was not qualified to certify mental health of the testatrix. He also denied the suggestion that the Will was given to him at his residence and he endorsed the certificate without actually carrying out a medical examination of the testatrix to oblige Fr. Esperance and Gloria. He did not discuss the matter of the Will with Joyden Fernandes who was just an acquaintance of his, having met him at Fr. Esperance's birthday parties held in Joyden's flat. He admitted that he knew Fr. Esperance for about 30 years. Dr. Gupta admitted that if he had known the purpose of the visit or that Dr. Owen Pinto had declined to certify the condition of the testatrix he may not have gone but since he was informed him that it was a medical reason he did not refuse and because he had already reached 39/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:29 ::: ts818.88 the house as aforesaid, he did not decline the request. He was unaware of history of complaints of the testatrix who had not disclosed it to Dr. Gupta.
Evidence of Vellie Andrade / DW-1
39. Vellie Andrade in her affidavit in lieu of examination in chief filed in Suit 34 and Suit No.818 deposed that prior to filing a suit she had caused notice to be issued through her Advocate disputing the authenticity of the purported Will to which a reply was received from Advocate Colaco on behalf of Gloria. The same was tendered in evidence. She acknowledges the fact that the testatrix along with her late husband were joint lessees of Plot bearing Old No.29 and New No.40 in the society under an Indenture of Lease dated 14th March, 1939 for a period of 998 years from 26th January, 1939. When her father died in 1949 all the children were minors. Her brother Raymond and Etty were of an age where they would understand things and they could feel trauma, however, Gloria being a small child could not. She deposed that they looked after Gloria who grew up and created situations of misunderstandings amongst the elders from an early age. Raymond, Etty and Vellie started working at an early age after completing matriculation. Gloria was not interested 40/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:29 ::: ts818.88 in studies. She admits in paragraph 10 that it was possible for her to visit her mother on daily basis since she stayed next to Anthony's Cottage.
40. After her father's demise, the name of the testatrix continued to be retained in the record of the society. Raymond with the consent of the testatrix constructed two rooms and a bathroom on the first floor of Anthony cottage. At the time of Gloria's marriage in 1964 the testatrix was about 60 years of age being born on 19 th February, 1904. Although the testatrix had arthritis and diabetes, she was otherwise fit. Vellie use to visit the testatrix regularly. Gloria was married and had moved to her husband's residence but did not like Vellie's closeness to the testatrix and returned 3 to 4 months of her marriage. Gloria "forced her entry" into the testatrix's house and Vellie and Etty continued to visit the testatrix regularly. I must observe that there is no mention in Vellie's evidence of Raymond regularly visiting the testatrix. According to Vellie the testatrix was 82 years of age on date of her demise on 10th January, 1986 and she did not leave any Will. She disputes genuineness of the Will in respect of which no announcement was made during the month's mind of the testatrix although it was customary to do so.
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41. According to Vellie the testatrix was in poor health but she was on very good terms with Vellie, her daughters and her sister Etty. Vellie has deposed that she used to visit her mother daily. Etty, who was also close by was also visiting the testatrix very often. Taking advantage of the mental condition of the testatrix, Gloria had got the Will prepared in her favour to the exclusion of others in the family and with the assistance of Advocate Colaco. For the aforesaid reasons, he submitted that the Will is null and void and inoperative.
42.The deposition goes on to impute motives apropos involvement of Joyden Fernandes. Fr. Esperance and calling Dr. Gupta despite of the fact that Dr. Pinto was the family doctor. Vellie's evidence admits of the testatrix ability to read and write English but she was not in a proper state of mind and health and that attempts were made to get the purported Will signed by the testatrix but she either declined to sign it or could not sign it. She does not admit that the thumb impression being that of the testatrix and relies upon Advocate Colaco's deposition in his cross examination wherein he admitted having held the left hand of the testatrix, affixed thumb impressions and made endorsements thereafter. The testatrix therefore had no physical or mental incapacity to sign or even put her thumb impression on her own. Joyden Fernandes and Dr.Gupta had not put 42/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:29 ::: ts818.88 dates on which they have attested the Will. Reference is made to an incident in September 1985 when the testatrix wished Aunt Blossom "Merry Christmas" instead of "Happy Feast". Vellie admits that in the year 1961 Raymond had constructed two rooms on the first floor of Anthony's Cottage. In or around 1985 he asked for permission for building two more rooms which was declined by the testatrix by saying "I have four children".
43. Vellie has questioned mutation in the record of rights in favour of Gloria and contends that it was mutation obtained under false statement that Gloria was the sole heir of the testatrix. The City Survey Officer had issued notice to the testatrix inviting objections, if any, but no notice was issued to Vellie or Etty or Raymond. An appeal is stated to be filed against the City Survey Officer which was pending as of 2007. She has also registered a notice of Lis Pendens with the Registrar of Assurance Sub-Registrar of Mumbai in respect of Suit No.818 of 1988. She also questioned Dr. Gupta's claim to have examined the testatrix and certified her medical condition and had caused a notice to be issued to Dr.Gupta calling upon him to disclose the manner in which he assessed the condition of the testatrix but had not received any reply from Dr.Gupta.
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44.In support of Suit No.818 of 1988 Mr. Vernekar produce through the witnesses the original death certificate of Joseph Pereira of Salsette Society. Vellie's Advocate produced Lis Pendens and demand notice, annexed objections from Ms. Paranjape. All of them have since been overruled and/or not pressed. I may observe here that as far as documents are concerned despite initial objections, the marking of these documents have largely been with consent and without serious opposition.
45.It is material to note that in question No.97 Vellie was asked whether she was ever prevented by Gloria from visiting their mother, to which she answered that often she would visit between 9.30 am and 12.30 pm and the door was locked. She was given the key by her mother from the window and that she did not know why her mother was locked. Vellie could not remember the first time or last time when her mother had given her a key to enter the house. When she asked to explain why Gloria suddenly returned to her mother's house four months after marriage, she answered that no girl comes back within two three months of getting married and although Gloria had stated that nobody wanted to look after the mother, the testatrix was only 60 years old at that time and could look after herself but Gloria was interested in grabbing mother's property and hence she 44/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:29 ::: ts818.88 returned. Besides Gloria's husband's brother was an alcoholic and although her mother asked Gloria to go back, Gloria stayed back and took hold of everything which belonged to her mother. She contended that there was only one bedroom in Gloria's husband's house but admitted that she has never visited Gloria's husband's house and that her evidence was based on hearsay.
Evidence of Cherylanne:- DW-3(a)1
46. Ms. Cherylanne is the grand daughter of the testatrix, one of two daughters of Raymond and Joyce. She has deposed for herself and her sister named Alison Goveia. Their mother, Joyce Pereira passed away on 28th February, 1996. Cherylanne opposed the grant of probate on the ground that her grandmother was senile and incapable of understanding the implications of any writing and hence incapable of making any testamentary dispositions. Therefore the Will is null and void. She has deposed on the same lines as her aunt and adopted the contents of the affidavits of her father Raymond. Doubts are cast on Dr. Gupta's involvement since he had never treated the testatrix. She has deposed that she was born and brought up in St. Anthony's Cottage and she had known her grandmother from an early age and till her demise. She claims to have met her grandmother practically everyday and interacted with her in day to day matters. The grandmother was 45/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:29 ::: ts818.88 well versed in money and property matters and for many years handled the family affairs by herself. She admitted that her father's marriage to her mother had caused annoyance to the testatrix.
47.According to her aunt Gloria was driven by greed and avarice and sought to alienate her parents in the hope of inheriting grandmother's property. She contends that Gloria had fed her grandmother with stories about her parents and drew a wedge between her father and the testatrix. She contended that she had an occasion to observe the interaction between her father and testatrix at close quarters. No particulars are given of the interactions between them. She denied that her mother had sent Mrs. Crissy Soares to meet the testatrix to request for permission on behalf of her father to construct further on the first floor. She has further deposed that her grandmother willingly gave permission to her father without the intervention of any third parties.
Cherylanne has sought to dispute Gloria's deposition apropos Raymonds conduct and has averred that aunt Gloria was defaming her father in his absence. It is not understood on what basis Cherylanne could make the statement because these incidents pertain to Raymond's childhood and early married life. There appears no basis for Cherylanne therefore to contend that defamatory statements were being made about her father by Gloria taking advantage of his demise.
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48.Cherylanne's affidavit dated 31st July, 2007 was to be treated as common evidence in both the suits i.e. Suit 34 and Suit 818. There was an objection raised on behalf of the Gloria that Cherylanne has no locus to lead evidence in suit no.818 and could not therefore file affidavit of documents dated 28th July, 2012 since Cherylanne had also confirmed an affidavit of documents in 2007. Cherylanne's further examination by Advocate D'Mello pertained to tendering a death certificate of one J. S. Pereira of the Salsette Society. I have since overruled this objection.
49. Cherylanne was cross examined. She stood by her father's affidavit of evidence. She deposed for herself and on behalf of her sister. With reference to paragraph 3 of her affidavit and the statements contained therein,the witness admitted that she had no document to substantiate her contention that the testatrix was senile and incapable of understanding implications of any writing. She states has witnessed the testatrix's condition and she had memories. According to the witness there were no disputes between her Fr. Raymond and the testatrix.
Merely because he had written to the Salsette Society it is not true that there were any dispute. She admitted that contents of paragraph 3 of her affidavit of evidence is a verbatim reproduction of the contents of 47/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:29 ::: ts818.88 her father Raymond's affidavit. Although she initially admitted that there were no disputes between her father and the testatrix, she has admitted in cross examination that the letter written to the Salsette Society and which makes reference to misunderstanding between her father and the testatrix referred to "rifts brought on by Gloria". She admitted that between April 1983 to 23rd May, 1989 her father Raymond was protesting and disputing the testatrix's status as sole owner/lessee of the plot in question but contended that it was a misunderstanding and not a dispute or protest. To a question whether the testatrix was seriously ill when these misunderstandings took place, the witness deposed that the testatrix was ill all her life, physically and mentally. Later the witness deposed that her father's protest was against the society and not against the testatrix but the nomination being made by the testatrix in favour of Aunt Gloria who wanted nothing to do with her father and her two sisters whereas her father wanted the property to be divided equally between himself and his three siblings.
50. The witness admitted that she has no personal knowledge of what had transpired in 1961 when her father had constructed the additional premises on the terrace of the cottage. She reiterated that the testatrix did not have mental capacity to make the Will and that she 48/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:29 ::: ts818.88 was suffering from cardiac disease, high blood pressure and diabetes and suggested that people do not wait till that age to draw up a Will.
According to her in January 1985 when she got married, she went to seek the testatrix's blessing along with her husband but the testatrix could not recognise them although she was in her wedding gown and aunt Gloria had to hold testatrix's hand atop witness and her husband's head. According to her the testatrix displayed no emotion at that time. Cross examination has proceeded in some detail in relation to the execution of Power of Attorney in favour of the deponent as also the fact pertaining to the deponent being nominated to act on behalf of her sister. In my view these are not aspects which need to be gone into in order to decide the issues since they have no direct bearing.
51. Cherylanne had admitted that the first floor premises was constructed between 1958 and 1960. She admitted that the testatrix used to rent out rooms to paying guests and sold the produced from land to support her four children. The testatrix's sister also used to help out in particular. The first bedroom on the ground floor of the cottage was let out. Prior thereto the husband of the testatrix passed away and she received pension money. The sisters of the testatrix also helped her. She realised for the first time that the visitors were 49/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:29 ::: ts818.88 occupying the said bedroom when Aunt Gloria and her husband moved to Anthony cottage to stay with the testatrix. She claims to have been provided with information by her parents upon being old enough to understand things. According to her the testatrix accepted her mother Joyce as a member of the family and which resulted in grant of permission to her father Raymond to construct rooms on the first floor. That Aunt Gloria was vindictive, greedy and did not want to share the property with siblings. She deposed to having been present when the testatrix was fed with stories by Gloria but she did nothing about it. According to her the testatrix was fed with stories right through her growing years, teenage and thereafter, when she turned a major. She further deposed that when she visited the testatrix, aunt Gloria was always around and therefore they could not talk freely. Aunt Gloria acted like a "barricade" and there was no communication between her parents, aunts Vellie,Etty and the testatrix.
52. Cherylanne was aware that Dr. Owen Pinto was attending to the testatrix and there were medical issues and was also aware of her hospitalisation. Aunt Vellie and Etty were on good terms with Raymond and Raymond visited his sisters fortnightly. The testatrix totally became dependent on aunt Gloria since about 1972. On the 50/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:29 ::: ts818.88 aspect of monitoring conversation when they were in house the witness admitted that what she meant by "monitoring" is that she felt uneasy talking to testatrix when her aunt Gloria was around. When asked whether any written communication had taken place between the witness and testatrix she deposed that aunt Gloria would have given the note to the testatrix and the testatrix was frightened to say anything and was prevented from having conversations. A specific question was asked whether the testatrix told the witness that she was frightened to say anything. She admitted that she did not say so but the witness could see it in testatrix's eyes and facial expressions. She admitted that the testatrix had taken care of the witness and also loved other grand children. She used to play with all her grandchildren.
53. Cherylanne has further deposed that her father Raymond addressed the letters to society and controversies relating thereto were still fresh when permission was sought for construction of extension of the first floor. When the witness was asked whether the controversy relating to Raymond's letters to the society affected chances of permission sought for extension, the witness did not think so.
Permission to build was for her. She wanted to build the extension.
Thus, it becomes evident that even according to the witness she 51/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:29 ::: ts818.88 would be the beneficiary of the extension on the first floor in view of impending marriage and admittedly that Raymond's letters to the society were not the reason that the testatrix had refused permission.
She also admitted that there was no documentary evidence to support the contention that her parents paid for construction of the first floor. She admitted that the testatrix may have paid for repairs of open terrace and after her demise, aunt Gloria bore the cost but probably using testatrix's funds thus displaying animus against aunt Gloria.
54. She admitted that Raymond had not submitted any documents to Salsette Society in support of his claim of ownership of the first floor and that her father was repeatedly claiming ownership of the first floor without any supporting documents. According to her "there must have been" some papers with the Salsette Society's office. Her father Raymond had not provided any document of ownership to the Salsette Society. She admitted that in her affidavit dated 31 st July, 2007 she had not stated initially that her grandmother had become totally bedridden.
Although she stated elsewhere that her grandmother had totally dependent for her day to day needs. She was unaware when exactly her grandmother became totally dependent on Gloria.
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55. When the witness was asked to confirm that there was no physical bar by aunt Gloria or any physical restriction by aunt Gloria to anybody visiting the testatrix, the witness stated "we were never given an audience with just our grandmother and us alone" . Cherylanne confirmed that being "barred" from meeting the testatrix only meant that the deponent and other family members had no audience alone with the testatrix. In answer to the questions whether aunts Vellie and Etty were not on talking terms with each other for almost 14 years after their respective marriages, the witness said that it was not true.
She did not know anything about it but went on to state "if there was any enmity between them it was because of aunt Gloria" . The entire deposition in my view involves around two aspects one firstly the incapability to make a testamentary disposition and secondly aunt Gloria's plans "grab the property". Attempts have been made and consistently by all witnesses to paint Gloria as the villain of the piece despite almost every witness accepting the fact that Gloria alone was available to look after the testatrix.
Submissions of Counsel rd
56. Vide order dated 23 February, 2012 passed in suit no.818 of 1988 and testamentary suit no.34 of 1989 this Court recorded that the parties in both the suits are the same and the issue in the suit are 53/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:29 ::: ts818.88 common. Furthermore, the estate in the suits is the same and common evidence has been directed to be led. Accordingly common evidence had been led and completed after a several extensions.
57. As far as the various objections are raised during the hearing of the suit are concerned, on 1st October, 2016 prior to commencement of argument both counsel addressed me on the various objections taken by the parties Advocates during the recording of evidence before the Commissioner appointed by this Court. I therefore heard the parties and have recorded in my order dated 1st October, 2016 that objections raised to question nos.5, 19, 25, 27, 40, 41 in the evidence of Father Rodney Esperance PW-2 are upheld and question no.22 and 23 are overruled. Questions at page 296, 310 in the evidence of PW-1 are upheld. As far as the evidence of Joyden Fernandes is concerned, the objections raised to question no.5, 8, 12, 14, 66, 116, 117, 193, 259 to 261 are upheld. As far as the evidence of Dr. Gupta is concerned, objections in question no.20, 26, 104 and 106 are upheld. The evidence has been led accordingly. Similarly in the deposition of Advocate Colaco objections raised on page no.295, 308, 316 of vol.3 were overruled. In the deposition of Dr. Gupta objections to question nos.71, 75 to 83, 89 and 98 are all overruled.
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58.On behalf of the plaintiff Ms. Paranjape submitted that the Will was executed validly when the testatrix was fully aware of her actions and to give effect to her intentions as to succession to her estate. The allegation of mental incapacity had not been proved by the defendants despite having had sufficient opportunity to lead evidence to establish otherwise. Ms. Paranjape made references to the pleadings, Exhibits and read extensively portions of the depositions of all the witnesses .
According to Ms. Paranjape, the testatrix of sound and disposing mind when she executed the Will Exhibit P-1. She was completely in her senses although she may have required help on the physical front. She could ask for whatever she needed and the Plaintiff was always available at hand to assist her.
59.The learned counsel submitted that the testatrix herself had given instructions to prepare her Will since she believed she had to arrange for her affairs. The nomination in favour of Gloria was made many years ago in the circumstances set out in the deposition of the Plaintiff.
Later the Will was prepared as a more practical solution to ensuring the plot and cottage were transferred to Gloria. Ms. Paranjape submitted that for long years even after the Will was disclosed none of the siblings took any steps to claim the property as undivided property belonging to all of them. The Suit 818 was but an afterthought and the 55/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:29 ::: ts818.88 evidence demonstrates this.
60.In support of her case, she relied upon the following decisions :
1) 27 Indian Cases 677 Mukta Nath Roy Chowdhuri v/s. Jitendra Nath Roy Chowdhuri;
2) 25 Calcutta 912 Indian Decisions, New Series Vo.XIII Nirmal Chunder Bandopadhya v/s. Sarotmoni Debya;
3) 62 LW 700 Mt. Gomtibai v/s. Kanchhedilal
4) (2014) 4 SCC 570 Leela Rajgopal v/s. Kamala Menon Cocharan
& Ors.;
5) (2012) 4 SCC 387 Maheshkumar v/s. Vinodkumar;
6) (2007) 1 SCC 546 Gurdev Kaur & Ors. v/s. Kaki & Ors.;
7) (2005) 8 SCC 67 Pentakota Satyanarayana & Ors. v/s. Pentakota
Seetharatnam & Ors.;
8) (2204) 2 SCC 321 Uma Devi Nambiar & Ors. v/s. T. C. Sidhan
(Dead);
9) (1995) 5 SCC 215 Vrindavanibai Sambhaji Mane v/s.
Ramchandra Vithal Ganeshkar;
10) (1995) Supp. (2) SCC 664 P.P.K. Gopalan Nambiar v/s PPK
Balakrishnan Nambiar;
11) (1977) 1 SCC 369 Jaswant Kaur v/s. Amrit Kaur;
12) (1976) 4 SCC 554 Seth Beni Chand v/s. Kamla Kunwar;
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13) AIR 1959 SC 443 H. Venkatachala Iyengar v/s. B. N.
Thimmajamma & Ors.;
14) (2007) 2 Bom. C.R. 92 Pushpa Prabhashchand Jain & Ors. v/s.
Rakesh Phoolchand Jain;
15) (2010) 1 All MR 269 Savita Dattatrya Karandikar v/s. Nishikant
Sadashiv Karandikar;
16) 2015(4) Mh. L. J. 327 Madhuri Pukharaj Baldota v/s. Omkarlal
Daulatram Banwat & Ors.;
17) (2008) 4 Mah LJ 747 Sadashiv Mahadeorao Pokle v/s. Mahesh
Baban Pokle;
18) (2002) 2 SCC 85 Madhukar Shende v/s. Tarabai;
19) AIR 1967 SC 591 Pulavarthi Venkata Subba Rao & Ors. v/s.
Valluri Jaganadha Rao & Ors.;
20) AIR 1966 SC 1861 Bhagat Singh & Ors. v/s. Jaswant Singh;
21) AIR 1930 PC 57(1) Siddik Mahomed Shah v/s. Mt. Saran & Ors.;
22) (1977) 3 SCC 532 Siddu Venkappa Devadiga v/s. Rangu S.
Devadiga & Ors. and
23) (2002) 5 SCC 337 AVGP Chettiar v/s. Palanisamy Gounder.
61.In Mukta Nath Roy Chowdhuri vs. Jitendra Nath Roy Chowdhuri [27 Indian Cases 677] the Calcutta High court observed that in order to constitute a direction it is not necessary that 57/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:29 ::: ts818.88 anything should be said and if testator making his mark is assisted by other person and acquiesces and adopts it, it is just as if he had made a mark without any assistance.
62. In Nirmal Chunder Bandopadhya vs. Sarotmoni Debya [25 cal.912] the Calcutta High Court observed in the case of a testator who is unable to write and in the habit of using a name stamp which was attached by a servant through any document or paper he wished to sign, executed a will under his direction and the servant affixed the impression of his name on the document It was held that the execution of the will was proper and it came strictly in the meaning of the words used in Section 50 of the Indian Succession Act.
63. In Gomtibai vs. Kanchhedilal & Ors.[62 LW 700 ] the Court found that the propounder had the onus and burden of proving that the Will was property executed and once it was proved that the will has been executed with due solemnity by a person of competent understanding, the propounder would have discharged his onus and the burden of proving the execution of the will. The Privy Council observed that undue influence imposed amounts to coercion or fraud and its existence must be established as fact and it must also appear that it was already exercised on the testator.58/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:29 :::
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64. In the case of Leela Rajagopal and Ors. vs. Kamala Menon Cocharan and Ors. [(2014)15 SCC 570] the Supreme Court observed that in cases of execution of a Will under unusual or suspicious circumstances, allegations must be based on a cumulative effect of all the unusual features and suspicious circumstances put together and not on the basis of any single feature or circumstance. In that case no specific reason was disclosed before the trial Court as to why the sons had been excluded. The first respondent daughter had come to stay with the mother at the time of executing the will. Actually she was working outside the city where the mother was staying. The fortnight prior to execution of the Will, testator had written to one of her sons expressing her intention to partition the property equally among all the children. Further more the original copy of the Will was not produced and there were discrepancy in the evidence of the witnesses of the plaintiff as to the place of execution of the will and the plaintiff beneficiary had played a prominent part in the registration of the Will. These were found to be suspicious enough to justify a conclusion that the Will ought not to be accepted. In a challenge the High Court reversed the judgment. The Supreme Court observed that they could not fault the High Court's decision in view of the explanations that were forthcoming. A close reading of the Will 59/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:29 ::: ts818.88 indicated that it is not so clear and unambiguous, the mind of the testator was clearly discernible. The reasons for exclusion of the sons were apparent from the will. As far as place of execution was concerned there was a satisfactory explanation and the participation of the first respondent who was beneficiary, in the execution and registration of the will could not be so not found to be suspicious which would warrant an adverse conclusion. The respondent beneficiary had summoned her friend to be attesting witness and to take testator to the office of the Sub-Registrar.
ig This also did not warrant any adverse conclusion. The Will was found to be identical to an earlier Will and in respect of earlier Will no active participation was attributed to the respondent beneficiary. The change of the the attesting witness was sufficiently explained. In the circumstances the Supreme Court found that the High Court of Madras had correctly reversed the decision of the trial Court.
65. Reliance was thus placed upon decision in the case of Mahesh Kumar (supra) wherein the onus upon the propounder had been satisfactorily discharged by proving that the testator had read out and signed the will in the presence of attesting witness and examination of one of the witness was sufficient to prove the will. There is also no requirement to cancel an earlier will since the same will stand 60/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:29 ::: ts818.88 superseded by the subsequent Will. Furthermore the fact that one the propounder was present at the time of execution and he was sole beneficiary to the exclusion other sons was not a suspicious circumstance when only the propounder had looked after the parents in their old age and other sons had never bothered about them.
66. In Gurudev Kaur and Ors (supra) the Supreme Court observed that in interpreting any consideration in a challenge to the Will, the Court does not sit in appeal over the right or wrong of the testator's decision and the Court's role is limited to examining whether or not the Will was executed by the testatrix and that as a matter of test for authenticity, the Will appearing on the face of it will have been duly executed and attested in accordance with the requirements of the statute, a presumption of due execution and attestation applies. In that case the Supreme Court found that the High Court had deviated from settled principles of interpretation and that the contents of the Will have to be appreciated in context of circumstances and not vis-a-vis rules of intestate succession. The Court does not substitute its opinion for what the testator's will or intention as was manifested in the written document and from that it appears to be duly executed and attested as required by law, a presumption of due execution and attestation to the attached Will. The Court must administer justice in 61/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:29 ::: ts818.88 accordance with law and in not in accordance to the whims, desires, inclination and notions of justice. It is binding duty of the Judges to discern legislative intention in the process of adjudication.
67. In Pentakota Satyanarayana and Ors (supra) the Supreme Court had occasion to consider Section 63 of the Succession Act. The court observed that it is settled by catena of decision in each and every circumstance is not suspicious even if active participation of the propounder were found, it is not sufficient to create doubt about discriminatory capacity or genuineness of the Will. Mere presence of the beneficiary at the time of execution also does not prove that the beneficiary had taken prominent part in the execution. In that case the Supreme Court reversed the decision of the High Court and the trial Court and found that the circumstances were not at all suspicious.
The High Court had gone of the execution of one of the heirs and the bequeath in favour of a major portion to the appellant. He found that there was no legal ground to negate the will and the onus of the propounder can be discharged with satisfactory evidence that the will was signed by the testator while in sound and disposing state of mind and understanding the contents.
68. In Umadevi Nambiar & Ors.vs. T.C.Sidhan (Dead) [(2004)2 62/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:29 ::: ts818.88 SCC 321] the Court found that mere exclusion of natural heirs or reduction of their share would not by itself amount to suspicious circumstances especially if the bequest is in favour of an offspring. In the case of P.P.K.Gopalan (supra) it was held, considering the cross examination of the respondent that no attempt was made to doubt the correctness of the Will and the fact that the whole estate was given to the son depriving two daughters was not a suspicious circumstances.
69. Jaswant Kaur (supra) which was relied upon by the respondent as well, it was held that the burden of proof must be such that the evidence adduced must satisfy the Court's conscience and that the burden of proof lies on the propounder setting up the Will. In the instant case, the plaintiffs have adduced sufficient evidence on this aspect and what remains to be considered is whether the evidence adduced is of such nature that would help in establishing their respective cases. Keeping in mind the propositions laid down in the case of Venkatachala Iyengar (supra) and Seth Benichand (supra) the Will was executed five days before the death of the testatrix inheriting only the son, his third wife and her progeny and bequeathing of the properties to the first and second wives and their progeny. It was held that it was not an unnatural will. The three signatories to the Will were not labeled as attesting witnesses but the Supreme Court observed 63/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:29 ::: ts818.88 that description of a signatory to a testamentary documents was not necessary and attestation means signing of document to certify that the attester is a witness to the execution of the Will. In that case all the three signatories saw the testatrix affix her thumb mark on the Will and to sign the Will in token of attestation after the thumb mark was affixed. The Supreme Court found that there was no substance in the grievance that proof of the Will was incomplete for want of attesting witnesses' evidence. Relying upon these observations Ms. Paranjape submitted that in the present case there was no occasion to question the validity of the Will under similar circumstances.
70. In the case of Pushpa Jain (supra) a Division Bench of this Court observed that the respondents-the original defendants had contended that the testatrix was bed ridden and blind and was illiterate had put the thumb impression on the Will. The challenge was negatived on the basis that it was not unnatural for the testatrix to have bequeathed properties and business to the respondent who was her grandson since all other daughters being married and well settled and the bequest being not to a stranger but to one who was related and had lived long years with her, merely because the testatrix was bedridden was of no substance. His evidence show that she had undergone Cataract operation and wore thick glasses while testatrix in that case may have 64/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:29 ::: ts818.88 suffered Parkinson's disease that by itself would not impair her understanding, vision or hearing power. The Doctor had also certified that the testatrix was of sound mind at the relevant time.
71. In the case of Savita Karandikar (supra) a Single Judge of this Court has held that the burden of proof of execution of the Will lies on the plaintiff. The burden to disprove lies upon the defendant and mere allegations and/or averments or undue influence are not sufficient.
Similarly raising doubts about certificate given by Doctor about health and fitness without any material evidence is not sufficient and mere fact that some of the heirs were excluded from the bequeathed property will not affect the validity of the Will.
72. In Madhuri Baldota a Single Judge of this Court held that to establish unnaturalness more than kinship or lineal descent is necessary. It will be shown that relations between those excluded and testator were so close that in natural scheme of things, it was inconceivable that they should be altogether ignored and it must be shown that testator was compelled to act against his wishes and in respectful agreement with the above observations.
73. In Sadashiv Pokle (supra) a single Judge of this Court held that 65/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:29 ::: ts818.88 minor contradictions by itself cannot be held as sufficient to conclude that circumstances pointed out are suspicious.
74. In Madhukar Shende (supra) the Supreme Court observed that if evidence has to prove execution of Will is legal, convincing and satisfies the conscience of the Court and there is nothing unnatural about the transaction, mere conjecture or unfounded suspicion cannot be the basis to sway the verdict. It was further held and as evident from Section 63 of the Succession Act that there was no requirement for a Doctor to be present at the execution of the Will.
75.In the case of Bhagat Singh (supra) the dispute revolved around and arose out of a decree in a suit by the respondent for recovery of position of plots of land. Respondent alleged that the plots were owned by one Kartar Singh who have adopted by the respondent two years before his death. The Court observed that it was necessary that the person objected validity of an appointment of a heir to property on the ground of custom.
76.Siddik Mohamed Shah (supra) held that no amount of evidence could be looked into upon a plea that was never made. In Siddu Venkappa Devadiga (supra) the Supreme Court observed that a 66/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:29 ::: ts818.88 decision of the case cannot be based on grounds beyond the plea of the parties. Reversing a decision of the Bombay High Court the Supreme Court found that this Court had taken several circumstances into consideration while examining competing claims of the parties. The Court had adopted reasoning to not support the plea taken by the plaintiff. In absence of such a plea the High Court had gone wrong in ignoring this basic principle and make out entirely new case which was not pleaded. Similarly In A.V.G.P, Chettiar & Sons and Others' case (supra) ig the Supreme Court had an occasion to consider necessity of proper pleadings and held that the parties are bound to base their contentions on their pleadings. The Supreme Court reiterated the observation in Trojan and Co. Ltd. Vs. RM.N.N. Nagappa Chettiar to the effect that the decision of the case cannot be based on grounds outside the pleadings of the parties and it is case that is pleaded that must be found.
77. In Bhagatsingh and Others (supra) the Supreme Court reiterated that if a person objects to the validity of the appointment of an heir to the property on the ground of custom, the same should be pleaded and proved that the land in the suit is ancestral property.
That reliance was sought to be placed on some custom. No issue was 67/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:29 ::: ts818.88 framed with respect to specific custom which would invalidate adoption of the plaintiff.
78.In conclusion Ms. Paranjape submitted that the Will is undoubtedly valid having being prepared under instructions of the testatrix herself, to her satisfaction and executed as required by law.
79. Mr. Vernekar the learned counsel appearing for the defendant 2 and 3 took me through the pleading and depositions and pointed out discrepancies in them alluding to a conspiracy of sorts between Gloria, Fr. Espernace, Joyden Fernandes and Advocate Colaco. According to Mr. Vernekar, these persons have collectively helped Gloria to usurp the property. He submitted that the testatrix loved all her children equally and the Will Exhibit P-1 is unnatural and procured by influencing the testatrix. He further submitted that given the state of her health the testatrix was unable to comprehend the fact that her properties were being dealt with under the Will. Mr. Vernekar painstakingly took me through the relevant portions of the deposition which according to him established that the Will was not validly executed and was therefore non-est.
80. Mr. Vernekar submitted that the Will should be executed in 68/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:29 ::: ts818.88 accordance with Section 63 of the Indian Succession Act and the testator must sign or affix his mark on the Will, or it shall be signed by some other person in his presence and by his direction. The signature or mark of the testator, or the signature of the person signing for him, is required to be so placed that it should appear that it was intended thereby to give effect to the writing as a Will. The Will should be attested by two or more witnesses, but it is not necessary that more than one witness is present at the same time.
Proof of a Will has to comply strictly ig with these requirements. He submitted that in the present case these fundamental requirements has not been satisfied.
81. On behalf of defendant nos.2 and 3 Mr. Vernekar relied upon the following judgments :
1) (1998) 4 SCC 384 Gurdial Kaur and Others Vs. Kartar Kaur & Others;
2) (2006) 13 SCC 449 B. Venkatmuni vs. C.J. Ayodhya Ram Singh & Others;
3) (2006) 9 SCC 515 Joseph Anthony Lazarus (Dead) by LRs. Vs. A.J.Francis;
4) AIR 1959 SC 443 H.Venkatachala Iyengar Vs. B.N.Thimmajamma & Others;69/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:29 :::
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5) AIR 1962 SC 567 Rani Purnima Debi & Anr. Vs. Kumar Khagendra Narayan Deb & Anr.;
6) (1977) 1 SCC 369 Smt.Jaswant Kaur vs. Smt.Amrit Kaur & Others;
7) AIR 1990 SC 396 Kalyan Singh Vs. Smt. Chhoti & Others;
8) AIR 2001 MP 250 Kishan Singh Ahluwalia Vs. Sheela Saxena & Others;
9) AIR 1982 Gauhati 94 Abhoy Charan Nath Mazumdar Vs. Raimya Devi & Others;
10) AIR 1974 SC 1999 Surendra Pal Vs. Saraswati Arora & Others;
11) AIR 1995 SC 2086 Vrindavanibai Sambhaji Mane Vs. Ramchandra Vithal Ganeshkar & Others.
82. In the course of his submissions Mr. Vernekar submitted that in the present case the defendants had established that there were suspicious circumstances surrounding the execution of the Will and it is the duty of the person seeking declaration about the validity of the Will to dispel such suspicious circumstances. He submitted that it has been held that even registration of the Will will not by itself be sufficient to dispel all suspicions relating to validity of the Will. He submitted that in the case of Gurdial Kaur & Others (supra) the Supreme Court had observed that conscience of the Court must be satisfied that the Will in question was not only executed and attested in the 70/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:30 ::: ts818.88 manner required under the Indian Succession Act but it should also be found that the said Will was by free volition of the executant who had executed the Will voluntarily after knowing and understanding its contents and that wherever there are suspicious circumstance, the obligation is cast on the propounder of the Will to dispel any such suspicion circumstance.
83. Relying upon observations of Supreme Court in case of Surendra Pal vs. Dr.Saraswati Arora & Ors. [1974 AIR 1999] Mr. Vernekar submitted that the propounder has to show that the Will was signed by the testator, who was at the relevant time in a sound disposition state of mind, and he understood the nature and effect of the dispositions that he has put his signature to the testament of his own free Will and in presence of two witnesses. Once these elements are established, the onus resting on the propounder is discharged. In cases where the execution of the Will itself is surrounded by the suspicious circumstances such as signature is doubtful, the testator being of feeble mind or is overawed by powerful minds interested in getting the property or in such circumstances that the disposition appears to be unnatural, improbable and unfair and yet again in case where the propounder has itself taken part in execution of the Will which confers upon him substantial benefit that itself is one of the 71/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:30 ::: ts818.88 suspicious circumstances to remove by clear and satisfactory evidence.
Ultimately, the conscience of Court must be satisfied and quality of proof must be commensurate with the need to satisfy that conscience of the Court and remove suspicion. Mr. Vernekar submitted that in present case this has not been achieved.
84. In the case of Joseph Antony Lazarus (Dead) by Lrs. vs. A.J.Francis [(2006) 9 SCC 515] Supreme Court held that in the facts of that case the testatrix was 84 years old and not fully and physically fit and the cumulative effect of all the circumstances taken together gave rise to genuine doubt regarding the genuineness of the Will and as to whether the same had in fact been executed by the testatrix and, if so, of her own free volition. The Court observed that when suspicious circumstances are being considered, the fact that the property was bequeathed to two sons without mentioning other sons and considering the old age and indifferent health of the testatrix and the fact that there were two different signatures on each page of the Will, the Will having been registered more than a year after the date, genuineness of the will was doubtful. Moreover, in that case the Advocate who drafted the Will was not examined nor was the Sub-
Registrar before whom the Will was presented for Registration. In that case the Court felt that it was injudicious to suggest that there were no 72/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:30 ::: ts818.88 suspicious circumstances surrounding execution of the Will.
85. In Venkatachala Iyengar (supra) the Supreme Court also observed that in the matter of proof of Wills was not possible to expect proof with mathematical certainty unlike other documents, since the Will speaks from the death of the testator. When it is propounded, ordinarily evidence will be adduced in support of the Will, it would be disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and signature as required by law.
Mr. D'mello had placed reliance upon paragraph 21 and 22 of this judgment in support of the submission that the testator had executed the will under undue influence and she was not acting of her free will and the propounders themselves have taken prominent part in execution of the will which confers upon Gloria D'Sylva almost the entire benefit of the property and this for itself is to be taken as a suspicious circumstance. According to Mr. D'mello the plaintiff alone had failed to remove suspicion from the mind of the Court by cogent and satisfactory evidence. In this matter it is evident that the Courts conscience will not be satisfied in the facts of the present case.
86. In Rani Purnima Debi (supra) the aspect of respondent getting the sole benefit under the Will was considered suspicious. Moreover 73/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:30 ::: ts818.88 the signature of the testator was not the usual signature and the Will bore signature of sixteen persons as attesting witnesses all of whom were said to be independent and responsible. No attempt was made to produce the witnesses to dispel the suspicion arising out of other circumstances above. In that case reliance was place on the statement of an Advocate who was the Counsel for the testator for two years before his death. The Court held that ordinarily what would have been expected of such a witnesses was his strict regard for the truth and as it turned out in that case that witness did not appear to have much regard for the truth. Reliance could not be placed on his testimony.
87. In the case of Smt.Jaswant Kaur (supra) the Supreme Court observed in cases where the execution of will is shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant and it becomes matter of the Court's conscience and the true question which arises for consideration is whether evidence led by the propounder of the will is such as to satisfy the conscience of the Court that the will was duly executed by the testator and that it was impossible to reach such satisfaction unless the party is setting up the will offers cogent and convincing explanation of the suspicious circumstances.
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88. In Kalyan Singh (supra) the Court observed that since the executant of the will cannot be called to explain the circumstances under which it was executed, it is essential that trustworthy and unimpeachable evidence is produced to establish the genuineness and authenticity of the will and the Court is not confined to the testimony and demeanour when it is open to the Court to bring circumstances brought out in the evidence and what appear from the nature and contents of the documents.
89. In Kishan Singh Ahluwalia (supra) the Court reiterated that the onus is on the propounder to prove affirmatively that the testator knew and approved of the contents of the Will. Proof of signature was vital and if a person takes active part in getting the Will prepared or executed and gets benefit under the Will the such person must adduce best evidence to remove suspicion regarding the Will and though participation or taking undue interest in the execution of the will by beneficiary may raise legitimate suspicion as against the mere presence of a person.
90. In Abhoy Charan Nath Mazumdar (supra) the testator was 80 years old, suffered from asthma and disorder of bowels, was bed ridden and almost unconscious. The doctor who treated his illness was alive 75/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:30 ::: ts818.88 but was not examined. The Court observed that sound disposing mind implies soundness of mind, memory and understanding. It is necessary for the validity of the will that the testator should be of sound mind, memory and understanding. Any imbecility arising out of advanced age or illness may destroy the testamentary capacity. Reliance was placed on Halsbury's Laws of England, Third Edition, Section 1294 which records that in order to be of sound disposing mind, a testator must not only be able to understand that he is by his will giving his property to one or more persons of his regard. He must also have capacity to comprehend and recollect the extent of his property and the nature of claims of others whom he will be excluding. Disorder of the mind should not poison his affection or pervert his sense of right or prevent the exercise of natural faculties. The Supreme Court further observed that unsoundness of mind may be caused by senile decay. An attempt to equate the facts of the case to the present set of facts in my view fails.
91. Mr. Vernekar had also relied upon observation of the Supreme Court in case of Vrindavanibai Sambhaji Mane (supra) to the effect that there being a large body of case law about what suspicious circumstances surrounding the execution of the Will, a few are enlisted below :
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(a) Propounder taking prominent part in execution of the Will which confers substantial benefits on them.
(b) Shaky signature.
(c) Feeble mind likely to be influenced.
(d) Unjust and unfair disposal of property.
92.In Surendra Pal and Ors. (supra) the Court relying upon
Venkatachala Iyengar (supra) observed that the propounder must show that the will was signed when the testator was in sound disposing state of mind and after having understood the content and that he could put his signature of his own free will in the presence of two witness in the presence of each other. Once these elements are established the onus resting on the propounder is discharged.
93.Mr. D'Mello the learned counsel for defendants 1(a) and (1(b), the heris of Raymond Pereira adopted the submissions made by Mr. Vernekar and reiterated that the Will is not genuine. It was a got up document. The testatrix was senile and was unable to even speak and it was inconceivable that she could have decided to make a testamentary disposition on her own let alone execute it. Mr.D'Mello further submitted that the evidence of Fr. Esperance was not reliable since he was a friend of Gloria's family and regularly attended parties at their 77/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:30 ::: ts818.88 place. Fr. Esperance had appointed Gloria in his school and owing to their friendship Fr. Esperance had gone out of his way to conspire with Gloria to get the property for Gloria. Fr. Esperance had co-ordinated the preparation of the Will through Advocate Colaco and had also arranged for Joyden Fernandes, his brother-in-law to attest the Will.
Moreover he convinced Dr. Gupta a complete stranger to the Testatrix to certify her mental state despite Dr. Pinto being the family doctor.
94. Apropos the evidence of Mr. Colaco, Mr. D'mello relied upon the fact that Advocate Colaco admitted to having received instructions from the testatrix after Gloria introduced them and the fact that the draft of the Will had been given to Gloria by Advocate Colaco. In cross examination he admitted that it was Gloria who conveyed him that the decision of the testatrix to make a Will instead of Deed of Assignment and that he did not fix the appointment for execution of the Will on 26th September, 1985 but Gloria suggested the date and time to him.
95. Mr. D' Mello also raised the issue that the testatrix was only nodding the head and was not speaking. This he stated was an indication that the testatrix was not in a proper frame of mind. He also relied upon the deposition of Joyden Fernandes in support of his contention and in particular answers to question no.29 and 30, 32, 33, 38, 54, 55, 56 to 78/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:30 ::: ts818.88 support his contention that the testatrix did not speak to any of them but only nodded her head. Joyden Fernandes had specifically stated that he had witnessed the reading of the Will. Mr. D'mello also referred to that answers to question no.161, 203 to 207 in support of his contention that witness would not recall any conversation between the witness and Gloria or the witness and Fr. Esperance or Advocate Colaco or Dr. Gupta. Mr. D'mello pointed out in answer to question no.234, Joyden Fernandes has admitted that he did not recall the testatrix saying anything while the Will was being read out and that is basis of his belief that the testatrix was in a proper state of mind was the examination by Dr. Gupta and his remarks that she was fully capable of understanding the actions. (see Q.257).
96.Mr. D'Mello also relied upon the admission by Dr. Gupta in answer to question no.36 that the testatrix was not his patient and that he visited the house of the testatrix at the request of the Gloria. Mr. D' Mello also relied upon the answers of Dr. Gupta to question nos.50, 51, 52.
Apropos the discussions that enquiries he made with Gloria as to whether the testatrix was suffering from any ailments or sickness to which Dr. Gupta answered in the negative. Mr. D'Mello further also drew my attention to answer of question no.126 to 137 and the admissions of Dr. Gupta that he was not aware that Dr. Pinto had 79/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:30 ::: ts818.88 refused to attend the execution of the Will but there was no conversation regarding her health and Dr. Gupta recall for want of having read out the Will.
97. Mr. D' Mello also relied upon the answers given by Cherylanne to question no.48 and 73 which dealt with the witness's visit to her grandmother in January 1985 when she got married. Mr. D'mello also relied upon the answers to question nos.156 to 161 dealing with the period during which her grandmother's health had deteriorated. Mr. D'mello relied heavily on the deposition of Ms. Cherylanne inter alia answers of the witness to question no.327 confirming that her father Raymond had sought permission from the grandmother for extension of the first floor premises and that further permission was sought in the year 1985 when she got married. In answer to question no.343 the witness volunteers that permission to further extend the first floor construction was sought by her father Raymond when she got married i.e. in January 1985 and although it is not mentioned in the affidavit it would brought up in the cross examination. The witness admitted that it is an important matter as between her father and her grandmother.
Etty did not give evidence.
98.Mr. D'mello then relied upon the answers given by Cherylanne during 80/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:30 ::: ts818.88 her cross examination to question no.669 wherein she admitted that the police complaint against her father was given because her father would got annoyed with a domestic servant named Xavier. Mr. D'mello drew my attention to the fact that the Cherylanne had clearly reiterated that her grandmother was senile although she did not have any documentary evidence to support. According to Mr. Vernekar Fr.
Rodney Esperance had admitted that he could not identify the thumb impressions on the Will since he had not seen it before. He also reiterated that Fr. Esperance had met the testatrix through her daughter Gloria and the fact that the testatrix did not complain to Fr.
Esperance about the other daughters not visiting her.
99. Mr. Vernekar and Mr. D'Mello had relied upon the admission by Fr.
Esperance that the testatrix was very frail and weak and could not interact with Fr. Esperance due to her ailments. He was sure that the testatrix would make a Will that would be satisfactory to all. Both Mr. Vernekar and Mr. D'mello also relied upon the admission by Fr.
Esperance that Gloria had told him that the Will was not to be read at the months mind as a suspicious circumstance. Mr. D'mello in particular had placed reliance on the answers of Fr. Esperance to question no.29 and 30 in cross examination wherein Fr. Esperance admitted that as a layman, the property would be divided equally and 81/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:30 ::: ts818.88 that it would not be necessary for him to remain present at the execution of the Will merely because he was appointed as an Executor.
100. On behalf of defendant no.1(a) and 1(b) Mr.D'Mello relied upon the following decision :
(i) Shashi Kumar Banerjee and Others vs. Subodh Kumar Banerjee (since testatrix) through LRs. and Others AIR 1964 SC 529;
(ii) Gorantla Thataiah vs. Thotakura Venkata Subbaiah and Others AIR 1968 SC 1332;
(iii) Smt.Kamala Devi w/o Banarsi Dass and Others vs. Kishori Lal Labhu Ram and Others AIR 1962 Punjab 196.
101. In support of his case he submitted that where suspicious circumstance exist the onus is on the propounder to explain them to the satisfaction of the Court, before the Court accepts the Will as genuine. He relied upon observations of the Supreme Court in Shashi Kumar Banerjee and Others (supra) in which four issues had arisen as to whether
(a) Whether the Will is genuine ?;
(b) It is properly executed and decided ?;
(c) The testator had testamentary capacity at the time of the signing the Will ?; and 82/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:30 ::: ts818.88
(d) Whether the Will was obtained by undue influence, fraudulent representation and coercion.
102. After examining intrinsic evidence in the Will, the Court reached conclusion that the Will must have been signed. Thereafter oral evidence was examined. Mr.D'Mello had submitted that where suspicious circumstance exists the onus is on the propounder to explain to them to the satisfaction of the Court, however, what has been overlooked, I find is that the judgment also observed ig that where the caveator alleges undue influence, fraud and coercion, as it does appear from the facts of this case, the onus is on the caveator to prove the same. Even in cases where there are no such pleas but the circumstance give rise to doubts, the propounder must satisfy the conscience of the Court. The Court would naturally accept that legitimate suspicious is completely removed and the fact that the propounder himself takes part in the execution of the Will which confers a substantial benefit on him that is also a circumstance to be taken into account.
Conclusions
103. Having considered the pleadings, depositions, documentary evidence and the submission of counsel, the issues are answered as under:-
"1. Does the plaintiff prove the due execution and 83/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:30 ::: ts818.88 attestation of the Will dated 26th September, 1985 ? - In the affirmative.
2. Do the defendants prove that the testatrix did not have the necessary mental capacity to make any testamentary dispositions and hence the purported will of the testatrix in null, void and inoperative in law ? - In the negative.
3. Whether the plaintiff is entitled to probate of the Will as prayed ? - In the affirmative.
3A. Whether the plaintiff and defendant nos.1 to 3 are entitled to 1/4th share each in the leasehold plot of land being Old Plot No.29/New Plot No.40, Kantwadi Scheme, CTS No.253, St. Paul's Road, Bandra, Mumbai 400 050 in the event it is held that the deceased - Anna Isabel Pereira had died intestate ? - In the negative.
4. What order ?" - As given below Reasons:
104. Briefly put the grounds of challenge to the Will are as follows :
(a) The testatrix suffered from Cardiac disease, high blood pressure, diabetes and hence did not possess necessary mental capacity to make the Will.
(b) In the second week of September 1985 around the period which the Will is believed to have been executed, a sister of the testatrix along with some relatives and one daughter of the testatrix visited 84/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:30 ::: ts818.88 her on the occasion of the feast of "Our Lady of Mount" and when the visitors wished her "Happy Feast" she responded with "Merry X'mas". She was therefore not in her proper senses.
(c ) Raymond also contends that the testatrix was under treatment of Dr. Owen Pinto for about 20 years prior to demise, yet the Will contains an endorsement by Dr. Gupta, who was a non-practicing doctor employed with Burroughs Welcome. It is unlikely that the testatrix would have chosen to be examined by Dr. Gupta and Dr. Pinto had been treating all along.
(d) The Will is in English language yet contains the thumb impression of the testatrix. She was capable of signing yet only thumb impressions is seen to have been affixed that there was some scribbling at the foot of first page which shows that the testatrix had made an attempt to sign but could not sign due to feeble state of body and mind.
(e) Although the Will is stated to have been read over by Advocate Colaco there is no endorsement to that effect.
(f) When the testatrix had made nomination in favour of Gloria, Raymond had protested by addressing three letters to the society to the effect that the plots should have been transferred to all children.
Gloria, however, took advantage of the nomination and brought her name on the record. She also got her name entered in the 85/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:30 ::: ts818.88 record of rights by misrepresenting that she is a sole heir thereby committing a forgery. For the aforesaid reasons, the Will is said to be inoperative.
Issue no.1:
105. The original petitioner/plaintiff PW-1 Fr.Esperance admitted that at the Months' Mind he asked Gloria whether the Will had to be read but Gloria said that there is no need since Advocate Colaco had said that it was not necessary. He admits to have read the Will much later and upon reading he felt that the Will would be contested since the children other than Gloria had been denied. He was unaware that he could not relinquish his right as an executor and that if he had known of this possibility he would have relinquished his right of executor. Moreover, he admitted that if he had known the contents of the Will he would not have aggrieved to act as an Executive. Fr.
Esperance had admitted that he had not seen the testatrix executing the Will nor had be contesting the Will or Dr. Gupta examining the testatrix. He had denied that he had only agreed to become executor of the Will to help Gloria and her mother, the testatrix.
106. Fr. Esperance has in cross examination fairly admitted that he did not understand why the testatrix had prejudice towards her other 86/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:30 ::: ts818.88 daughters. He had also admitted that if he had known the contents of the Will he may not have agreed to act as Executor. He has deposed that the testatrix asked him if he could act as executor, to which he had answered in the affirmative. The contents of the will did not matter as far as it concerned Fr.Esperance in his capacity as Executor.
To my mind Fr Esperance has successfully withstood the cross examination. He has truthfully admitted that Dr. Owen Pinto had been a family Doctor for the testatrix and not Dr. Gupta who would treat Fr.
Esperance and some others privately. He had vouched for the honesty, competency and ethical conduct of Dr. Gupta. He also admitted that Dr. Gupta had not treated the testatrix since she had always been Dr. Pinto's patient. He also admitted to having given Dr. Gupta the address of the testatrix and the direction to reach Anthony Cottage on the day when Dr.Gupta attended to the testatrix and certified her condition. Fr.Esperance has also admitted that Joyden Fernandes was his brother-in-law and to the fact that Gloria and Joyden Fernandes' families were known to each other since many years. He denied being indebted to Gloria but was unaware whether Advocate Colaco, Joyden Fernandes or Dr. Gupta were so indebted. The attempt made to suggest that Fr.Esperance was addicted to alcohol has also not succeeded inasmuch as quite apart of the denial of the suggestion that he was transferred to RC Church which was considered as a correction centre 87/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:30 ::: ts818.88 for members who are addicted to alcohol, he admitted that one priest was kept there for addiction to alcohol. The cross examiner abandoned this line of questioning and did not pursue it to its logical end. On the whole, I am satisfied that the evidence of Fr.Esperance was truthful.
107. Advocate Colaco who was also examined has deposed that the Will was prepared by him on the instructions of the testatrix. He was also the attesting witness. In his cross examination his testimony was sought to be challenged on the basis that he was in fact Gloria's Advocate and that he was part of the group which assisted in getting the testatrix to execute the Will. Advocate Colaco has deposed that he had been in talks with the Salsette Society in relation to the proposed deed of assignment. The Society had also asked him to submit a draft with all blanks duly filled in. However, this was not done since the costs of the Deed of Assignment was too high. Advocate Colaco identified the thumb impressions and signatures on the Will as also the endorsements. Advocate Colaco deposed that the scribble is the record of an attempt to sign by the testatrix. She however could not sign due to her weak physical condition. The Commissioner had observed that the witness was refreshing his memory whenever required from his documents but there does not seen to have been any serious objections thereto. Given his age, I do not find that surprising.
88/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:30 :::ts818.88 Moreover there did not appear any serious objection taken in this behalf nor was any argument advanced objecting to his deposition being read in evidence. Advocate Colaco further deposed that instructions as to paragraph 7 of the Will was not given by Gloria but by the testatrix. He correctly deposed that the Salsette society was the owner of the plot and the Pereiras were only lessees and therefore he had sought permission of the society to transfer the same to the Gloria.
A suggestion put to Advocate Colaco that the Will was drawn up on the instructions of Gloria was denied. The suggestion that the testatrix due to her age illnesses and being bed ridden was senile, incapable of understanding implications of any writing and was incapable of making any testatrix dispossession was also denied by Advocate Colaco who stated that the testatrix was of sound and disposing mind, memory and understanding. Finally he denied a suggestion that the Will was null and void or incorrect. I am unable to agree with Mr. Vernekar or Mr. D'Mello that the execution of the Will was surrounded by suspicious circumstances such as those contemplated viz conspiracy, thumb impression being doubtful, the testator being of feeble mind or the testatrix being overawed by powerful minds interested in getting the property or the disposition being unnatural, improbable and unfair or the fact that Gloria had taken part in execution of the Will which confers benefits upon her. On 89/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:30 ::: ts818.88 the contrary according to Advocate Colaco it was perfectly legal.
108. The Supreme Court in Vrindavanibai Sambhaji Mane (supra) observed that improbability of the execution of the will must be clear and cogent and non- disclosure of the will immediately after the death of the testatrix was not a suspicious circumstance when the will was produced in Court by the propounder immediately after filing the same. The fact that the testatrix was suffering from physical weakness and she died thereafter was of no consequence since the evidence in that case shown that propounder had taken care of her during her life time and the plaintiff had not taken care of her. This test is satisfied in the present case.
109. In my view another factor which is of relevance is that Fr. Esperance in his deposition disclosed that prior to September 1985 the testatrix had prepared the Will under which Arnold Drego was to be appointed as the executor. The said proposed Will was believe to contain the same provisions as present one. However, the defendants have not cross examined Fr. Esperance, Gloria or Advocate Colaco on this aspect is material. Omission to cross examine on this aspect is material. The evidence of Fr. Esperance, Dr. Gupta, Mr. Joyden Fernandes, Advocate Colaco as noted above establish due and valid 90/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:30 ::: ts818.88 execution of the Will. These witnesses have been truthful apart from minor inconsistencies such as time when Dr. Gupta left for Anthony cottage and arrived at Anthony cottage and time when the Will was executed. Nothing material has been pointed out by the defendants so as to support a plea that the Will was executed under suspicious circumstances. The involvement of attesting witness Advocate Colaco, Joyden Fernandes, Dr. Gupta and Fr. Esperance have been sufficiently explained. If indeed the aforesaid persons had conspired and colluded with Gloria ig in order to have the Will executed by the testatrix against her wish, the affidavits in lieu of examination in chief of these persons could have been co-ordinated suitably to avoid inconsistencies. Moreover, Dr. Gupta did not file an affidavit but chose to make a statement by way of letter dated 29th March, 2006 Exhibit PW-5-1. If indeed he was part of a plan to have such a Will executed there is no reason for him to resist filing an affidavit because in any case he has submitted to the cross examination. In my opinion no fault can be found with his deposition. .In his letter dated 29th March, 2006 PW 5-1 which was treated as his statement and which is read in evidence, he states that he had examined the testatrix approximately 20 years ago to give his medical opinion and as a professional medical expert. He remembered that the testatrix was in good health commensurate with age which he put in between 70 to 91/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:30 ::: ts818.88 79 years. Her mind was clear. Although the efforts were made in cross examination to challenge his professional ability, the defendants have not succeeded in doing so.
110. I find the deposition of Advocate Colaco truthful and reliable. All attempts to discredit this witness have failed. In my view Advocate Colaco and the other witnesses have establishes that the Will was prepared by Advocate Colaco on instructions of the testatrix and that the same was validly executed and attested in the manner described by him. The ratio in Pushpa Jain (Supra) would in my view apply to the present case. The submissions made by the defendants to the effect that it was testatrix who was coerced subjected to undue influence exerted by the plaintiff or anybody on her behalf has not been made out in the pleadings. The pleadings also overlook the fact that the society is the owner of land and as a lessor. The pleadings therefore also do not satisfy the test contemplated in Siddu Venkappa Devadiga (supra) and other decisions to this effect. I do not find much force in the submission that the testatrix was over 80 years of age and yet the Will mentions age as 76 years. This mis-description of the age alone will not affect the validity of the Will once its execution is established as valid. Moreover undue influence by way of coercion or fraud not having been proved, the execution of the Will is beyond 92/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:30 ::: ts818.88 reasonable doubt and clears the tests contemplated in judgments cited by the defendants. For all the aforesaid reasons, the first issue must and is answered in the affirmative.
111. Issue no.2 : The second issue as to whether the testatrix had the mental capacity to make a Testamentary disposition and whether the Will was therefore null and void and inoperative in law, leads us to consider the state of the testatrix's health both mental and physical at the material time. The case of the defendants in the pleading as well as in the evidence is to the fact that the testatrix, on account of her old age and bedridden condition with a number of illness, was senile and incapable of understanding the implication of any writing and hence was incapable of making any testamentary disposition. These grounds have been sought to be buttressed by making reference to an incident that took place in September, 1985 when the testatrix is believed to have responded to visitors to her home on the occasion of the feast of Our Lady of the Mount by wishing them "Merry Christmas" instead of "Happy Feast". This solitary instance has been stated by the defendants in support of their contention that the testatrix was not in her proper senses. Apart from this solitary instance which is relatable to her state of mind in September, 1985 viz the very month in which the will was believed to be executed, there is nothing else to suggest that she was 93/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:30 ::: ts818.88 senile or otherwise incapable of understanding the implication of any writing and making a testamentary disposition. The other reasons set out are the Cardiac disease, High Blood Pressure and diabetes that the testatrix reportedly suffered from over about 20 years for which she was being treated by Dr. Pinto.
112. Gloria D'Sylva has in her affidavit deposed that the testatrix had heart attack in 1978 and thereafter fractured her femur bone. Soon thereafter the testatrix was desirous of the transferring the property to Gloria D'Sylva and the testatrix was introduced to Father Rodney Esperance by Father Jonathan Dias who was a parish priest. Father Esperance recommended to the testatrix that she should engage services of Advocate Colaco who spoke to testatrix and Gloria. It is he who had suggested execution of the will in view of the fact that assignment of the rights in the property would have been too expensive. Gloria has deposed that Advocate Colaco came to the house and prepared a hand written will and read it out to the testatrix who approved the same.
Advocate Colaco stated that he offered to attend to the formalities and the testatrix asked Advocate Colaco to be one of the witness to which he had agreed. The deposition of Gloria is to the effect that the testatrix had asked Fr. Esperance to suggest a second witness and it was Fr. Esperance that suggested that Joyden Fernandes 94/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:30 ::: ts818.88 could be an attesting witness. Advocate Colaco also suggested that it would be useful to have a doctor present Gloria then requested Dr. Pinto who refused to attend.
113. Advocate Colaco provided a typed copy of the Will and she thereafter fixed the date for execution with Father Esperance, Joyden Fernandes and Dr Gupta. The evidence by way of examination in Chief of Gloria D'Sylva has in sufficient detail set out the process prior to and till the time to execution of the will and thereafter till the execution of the will.
Cross examination of Gloria D'sylva which commenced on 23 rd June, 2006 did not pose any challenge to the veracity of the deposition of Gloria. The cross examination of Gloria dealt with the decision of the testatrix to execute the deed of assignment and then suggested that the evidence of Gloria was not truthful when considering the different versions of the sequence in which Advocate Colaco, Father Esperance, Joyden Fernandes and Dr Gupta arrived at Anthony Cottage on the date of execution of the Will. Suggestions were made that the testatrix was senile and that a conspiracy had been hatched by the aforesaid persons to grab the property. Despite detailed cross examination by Mr. Vernekar followed by Mr. D'Mello, in my view the deposition by way of examination in chief has not been shaken. On the aspect of execution of the Will Dr Gupta has also deposed as to his role. He has in his cross 95/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:30 ::: ts818.88 examination stated that he spoke to the testatrix for about 15 to 20 minutes during which he found her cognitive senses were good and sufficient enough to enable her to arrange for distributing her assets. He therefore proceeded to certify her mental condition. Dr. Gupta has in my view successfully thwarted the cross examiners' attempt to challenge the veracity of his deposition. He has fairly admitted that he was not specialized in neurology while denying the suggestion that he was not qualified to certify mental health of the testatrix. He denied the suggestion he made endorsement on the Will at his residence will without actually carrying out a medical examination of the testatrix.
114. In the present case Gloria the daughter of testatrix was admittedly looking after the testatrix at all material times. Allegations in the written statement in the testamentary suit are to the effect that the Will was prepared at the instance of Gloria who was the only major beneficiary under the Will and that she had contacted the attesting witnesses and had ensured that the Will as propounded was executed.
In my view, given the fact that Gloria was looking after the testatrix almost exclusively, her involvement in the matter of execution of Will can hardly be faulted. Who else would have assisted the testatrix in the matter of preparation of the Will? The answer to my mind is clear. Apart from Gloria, none of the other children of testatrix had 96/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:30 ::: ts818.88 conducted themselves in a manner suggesting that they would be in a position to help the testatrix execute the Will. The evidence does not establish that other children were regular visitors or enjoyed the confidence of the testatrix. The evidence has in my view established that the testatrix had spoken to Advocate Colaco who had taken instructions from the testatrix herself and prepared draft Will. The involvement of Gloria in particularly the execution of the Will on the facts of this case does not in any manner affect the validity of the Will.
115. The other circumstances alluded to are the fact that the testatrix was capable of signing in English and therefore it was "improbable" that she chose to affix her thumb impression. Intrinsic in this contention is the possibility that the testatrix was completely and physically capable of signing in English on her own. The signature obviously was not obtained by force and that is not the case of the defendants either but to say that the testatrix was capable of signing in English militates against the contention that she was incapable of executing the Will. The evidence led by the defendants is to the effect that the Will had been scrutinized and it was revealed that the testatrix had attempted to affix her signature but failed on account of her feeble state of body and mind.
Inability to sign due to physical weakness is understandable but reference to inability to sign on account of feeble state of mind is not 97/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:30 ::: ts818.88 intelligible. Furthermore, in the affidavit in support of caveat filed by Raymond Pereira even assuming it can be read in evidence as adopted by Cherylanne what has been stated is since the testatrix was capable of signing in English it was improbable the testatrix chose to affix her thumb impression. This admits that there are "legible scribbles" at the foot of the first page. There is no allegation of the use of any undue influence, fraud or coercion. On the other hand, Advocate Colaco has clearly and truthfully admitted to have assisted the testatrix to fix her thumb impression on account of her hands being shaky.
116. Ms. Paranjape had referred to the deposition of Vellie and answers to question nos.146, 149, 151, 155, 156, 157, 162 and 163 to which Vellie deposed that by expression "almost bedridden", the testatrix was all the time lying down and could not recognise people. Once she is stated to have "asked" Vellie if she was Etty. The testatrix kept saying that her late husband and her father was waiting out for her that is "like a dementia". Therefore it is established that the testatrix could speak. Vellie admitted that she had not personally administered any medicine to her mother and Raymond did not visit his mother very often. Vellie did not have any documents to support her claim that the testatrix was in very poor health prior to making the Will but questioned why their children were not invited when the Will was 98/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:30 ::: ts818.88 made. It would be useful to reproduce answers to question nos.155 and 156 :
"Q.155. Do you have any document to support your statement in paragraph 3 that the deceased was in very poor health prior to the making of the alleged Will? A. No. I do not have any documents but the Will was made by my sister and her team, Fr. Esperance, Advocate Colaco, Dr.Gupta and Joyden Fernandes. Why weren't we invited when the Will was made. If she were sincere and truthful mother or she should have invited us. Why on a sly everything.
Q.156. How would your mother have invited you? A. She was good, she used to make actions which is what she has stated in her Affidavit. When she wanted to go for her nature's call she used to make actions. She could have told her to invite us accordingly."
117. It is thus admitted by Vellie that at the time of making the Will the testatrix used to communicate with actions and she could have invited their children with actions and therefore not senile. She admitted in answer to question no.162 that between 1965 to 1978 Gloria was always at home and till 1978 her mother had no health problem except for cardiac arrest in 1983 and a cataract operation in 1983 or 1984. Vellie admitted that Fr. Esperance did visit her house now and again as a friend. In relation to her answer to question nos.216 and 218 Vellie was asked to confirm that Austin's brother in law was only 99/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:30 ::: ts818.88 14 years old and schooling when Gloria got married, she admitted that she had only stated that one of the brothers in law was an alcoholic but she did not know how many brothers in law Gloria had.
118. She states in answer to question no.289 that she first become aware of nomination of her mother in favour of Gloria only when she read the Will indicating that Raymond and she has not communicated on the issue, although Raymond had already been entered in correspondence with the society as seen from the record. She had no knowledge about the fact that there was mortgage created in relation to the plot and subsequently a re-conveyance by the Salsette society in April 1964. She did not know any of above since according to her she was very young. She did not know whether there was any dispute between Raymond and her mother in respect of first floor or Raymond had taken up the dispute with Salsette society. She could not explain why she had not repeated allegations made by her in Advocate' s notice as to alleged lack of mental capacity of her mother in her affidavit or at the plaint in Suit No.818 of 1988 filed in March 1988 or the affidavit of evidence dated 21st August, 2007 and the affidavit in support of Caveat dated 26th November, 1992. When asked in question no.342 whether prior to the filing of affidavit of evidence on 21st August, 2007 she had ever disputed the Will of the mother on 100/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:30 ::: ts818.88 the ground that her mother was not able to speak at the time of making the Will, she answered that she may have not mentioned it because her mother "really could not speak". In answer to question no.343, she contended that her mother was in a state of "dementia third degree". Sometimes she could speak and sometimes she could not speak. Sometimes she would see her father and sometimes her father was calling out to her.
119. When her attention was drawn to the fact that she had not used the expression "senile" in the plaint in Suit 818 and prior to filing of an affidavit in support of the caveat or used the expression "dementia third degree", she answered that both these conditions are the same although she may not have described it appropriately. When asked whether she objected to Gloria and her husband staying with the testatrix. She admitted that she had not opposed it because Gloria "came crying" to the testatrix and also because Gloria's mother in law was asking her to pay lodging and boarding expenses. I must observe that this answer is different from the reason given earlier viz. the fact that Gloria's brother in law was an alcoholic and secondly, there was only one bedroom at Gloria's husband's house. When asked whether this answer was incorrect. She reiterated that they were both correct and that Gloria kept saying that nobody wanted the mother. When asked 101/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:30 ::: ts818.88 whether it is true that she did not stay with her mother overnight at the hospital. She denied the same. This aspect was relied upon by Mr. Vernekar to controvert Gloria's deposition to the effect that none of the siblings stayed at the hospital overnight. This in my view is not very material since Gloria has admitted in her evidence that Vellie had stayed only for one night.
120. When Vellie was asked to how long mother was living alone on the ground floor, she did not know the duration. She admitted that she was deposing only for herself. According to her, it was natural that her mother would make a Will but it is not her case that her mother had made some other testamentary disposition. She admitted that she did not have any written assessment from a Doctor that her mother was senile and that her contention that the Will was null and void was not based on a any doctor's certification but her mother did not have the mental capacity to make a Will because she was "senile and talking nonsense".
According to Vellie, her mother was not "in a mind for disposing a Will or anything". Vellie was asked whether she would consider her mother as fully aware of the consequences of her actions since she had given Vellie the Key of the house through window? Vellie stated that at the time when her mother used to give her the key she was "okay". When asked whether during the last year of her life the mother could not give 102/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:31 ::: ts818.88 her the key she answered in the negative.
121. In question no.503 Vellie was asked to explain how she could say that the mother was on very good terms with her, her daughters and her sister Etty. She answered "Because she used to smile when we went to visit her" indicating that the mother would communicate in this manner and not necessarily by speaking her mind. This has to be read in the context of the evidence of the attesting witnesses who had deposed that the mother had greeted them with a smile and nodded ig at Joyden Fernandes in a manner so as ask him to attest the Will. In the next question she was asked whether it would be correct to assume that the testatrix was recognizing people to which she answered that she did not know but she used to smile.
122. As regards Dr. Gupta's involvement Vellie did not deny that Dr. Gupta was a qualified practitioner but since he did not have his regular rooms like a private doctor she felt he was not practicing. She agreed that it is not her case that Dr. Gupta was not medically qualified to certify her mother's physical and mental condition. When asked to justify the basis on which she had deposed that an attempt had been made to get a Will signed by the testatrix, she answered that it could be seen on the Will where she was trying to sign it but could not. She was senile and could 103/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:31 ::: ts818.88 not sign or put her thumb impression and somebody has taken her hand and affixed her thumb impression and that her mother would not make a Will slyly, implying that she could.
123. According to Mr. Vernekar, Vellie had clearly stated that all persons in her family including her mother, sister Etty and all the neighbours who came to visit her as well the witness knew that her mother was senile. He further submitted that Vellie had deposed that she had made a statement in paragraph 18 of her affidavit of evidence about the condition of the testatrix because she could not talk and could not communicate towards the end of her life and they all knew that her end was coming. In answer to question no.538 Vellie deposed that the compilation of documents filed by her does not bear out to hospitalization in the last year of her life because she was not put into the hospital because "they did not want to pay her hospitalization or anything". Yet she deposed in paragraph 18 to the effect that the testatrix was in and out of the Nanavati Hospital was true. Thus the witness was contradicted herself on this aspect of hospitalization of her late mother. As regards the alleged incident when the testatrix's relatives visited her, the testatrix wished them "Merry Christmas"
instead of "Happy Feast", she admitted that she had no other evidence to support the incident apart from her bare words but her aunt, her 104/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:31 ::: ts818.88 nephew was present. Her aunt had passed away and nephew was in Canada. Later when she was confronted with a suggestion that there was no nephew in Canada he admitted that actually the person was her cousin's husband and not her nephew. The fact remains that the testatrix could speak and did speak.
124. Mr. Vernekar referred to Vellie's answer to question no.562 which suggested that her allegations of the Will being prepared by Gloria to benefit herself were false. The witness answered that the allegations were not false because no mother who had borne children and had her DNA running in their blood would exclude them and she loved them all dearly and she would not have made a Will slyly. When Vellie was asked as to when she first became aware of the nomination made by her mother in favour of Gloria in respect of St. Anthony's Cottage. In answer to question no.289 she had answered that she came to know of the nomination when she read the Will. In answer to question no.574 however she stated that she learnt of the nomination for the first time in February 1986 because (i) nomination does not confer rights; (ii) mother often complained about her beating her, shouting at her and also telling her that she would leave the house if she speak and tell Vellie anything about the Will. She was then confronted as to why she had not mentioned in that plaint and affidavits filed by her as to the incidents of 105/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:31 ::: ts818.88 her mother being beaten, she answered that she knew she would get a chance to be questioned as witness.
125. She was also asked as to why in the background of her mother being ill treated she did not shift mother to her own house which was just in the next lane to which she answered that it would not be possible and she could not help it but her mother was "begging not to tell anybody". Despite this, in answer to question no.581 she admits that the mother never informed Vellie anything about the nomination by her in August 1979 in favour of Gloria. All quite difficult to believe. Vellie also deposed that the Society would not allow nomination of all children.
She said the "nomination was not made by my mother it was made by my sister Gloria." In view of this answer Vellie was asked as to why the contention that the nomination was not made by the mother but by Gloria was not mentioned in any pleadings to which she answered that "I do not remember now".
126. Apropos the affidavit of Cherylanne / DW3(a)1 (adopting the contents of Raymond's affidavit), the affidavit filed by Etty Netto dated 23rd December, 1992 and affidavit of Vellie Mary Andrade dated 26 th November, 1992, they all proceed on the same lines, inasmuch as they all refer to the testatrix being a patient of cardiac disease, high blood 106/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:31 ::: ts818.88 pressure, diabetes and arthritis and not having mental capacity to make testamentary disposition. All these affidavits also state and admit to the fact that Raymond Pereira had asked permission to build two rooms initially from the testatrix. He once again approached the testatrix for permission to build two additional rooms. Admittedly and seen from the evidence of all defendant's witnesses, she declined permission by saying "I have four children". This statement is used to support the plea that the Will is unnatural and the bequest cannot be relied upon since testatrix could not have excluded her other children all of whom she loved.
However, this contention contradicts the plea that the testatrix was senile and incapable of making a testamentary disposition especially since Cherylanne has since admitted that it was her desire to get two additional rooms constructed using her husbands funds. She admits of multiple requests to the testatrix who declined permission, conduct hardly demonstrative of senility or a weakness of mind.
127. It is pertinent to mention here that Cherylanne has largely repeated the contentions taken up by her late father Raymond Pereira and her aunts to the effect that testatrix was indeed incapable in executing a testamentary disposition owing to her illness, admits that after her marriage in 9th January, 1985 she went to seek blessings of the testatrix who allegedly showed no emotion and could not recognise them. But in 107/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:31 ::: ts818.88 her cross examination when she was asked whether during the visit Cherylanne and her husband had paid to the testatrix as newly weds the testatrix had walked across the dining room and given Cherylanne a gold ring, she initially answered in the negative but admitted that the testatrix was seated in a chair and that she blessed them after which the testatrix had herself put a gold ring on Cherylanne's finger. She also admitted to have knelt down to seek her blessings. Clearly therefore it is not possible to accept the contention that the testatrix was completely bedridden for long due to her illness. Although, initially the evidence of Cherylanne examination in chief suggests that Gloria had assisted the testatrix, she has further deposed that although Gloria had to hold the testatrix's hand atop Cherylanne and her husband's head to bless them and that testatrix displayed no emotion at that time. This deposition when juxtaposed with her answer in cross examination clearly establishes that the testatrix was not so deprived of her faculties in the manner sought to be suggested.
128. Cherylanne admitted that it was not as if her family members or their Aunts or she herself had no access to the testatrix. They could go and meet testatrix but Aunt Gloria or her daughter was always around to monitor their conversation. During that period the testatrix was admittedly in good health and in perfect senses but her 108/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:31 ::: ts818.88 health started deteriorating during Cherylanne's teenage years. She became diabetic. Around time she became teenager the testatrix was capable of conversation but was afraid to interact with Cherylanne or her sister even on visits which took place on and off and sometimes on Sundays and holidays and sometime on week days. She admitted in answer to question no.168 that she was never physically prevented from visiting testatrix's house but her parents were later on not allowed to visit testatrix because Aunt Gloria prevented them towards later part of her teenage years. The witness was then asked to explain in what manner Aunt Gloria restricted visit to testatrix to which she responded by saying that when testatrix was in house she was told not to open door for Cherylanne, her sister, her parents, Aunts and cousins.
This to my mind is indicative of the fact that testatrix was quite capable of moving around the house on her own including for opening the door for visitors. This deposition is quite contrary to the pleadings and earlier statements of the witness to the effect that the testatrix was unable to comprehend what was happening around her. To question no.184, Cherylanne admitted it would not be correct to say that her late father or other siblings were never physically prevented from visiting the testatrix but reiterated that the testatrix was not allowed to open the door, once again establishing that the testatrix was capable of moving about the house and could attend to open the door. In 109/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:31 ::: ts818.88 later years of the testatrix, only if Aunt Gloria was present could they visit the house but all their conversations were being "monitored".
129. In the year 1985 when Cherylanne married, she admitted that her grandmother refused to give permission to construct the additional rooms but contended that this was because the testatrix was tutored by aunt Gloria. In the same breath Cherylanne states that the testatrix had become senile even before 1985. In view of this obvious inconsistency question no.333 was put to the witness which reads as follows:-
"Q.333:- What do you understand by the word "senile"? A. Loss of memory, cannot recognize people, cannot understand conversation or remember the birth days, feast days and the like."
130. She was also shown question no.330 and answers to question nos.331, 332 and asked which of these questions were correct. In response the witness deposed that all these answers were correct and true. For the sake of ease of reference questions 330, 331, 332 and 333 are reproduced below:-
"Q, "Q.330. Did your grandmother give this permission to Raymond for the extension of the first floor premises? A. No, she did not as she was tutored by my aunt Gloria.
Q. 331. It is correct that in 1985, at the time when you got married, it is your case that your grandmother was 110/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:31 ::: ts818.88 senile?
A. Even before 1985 she became senile.
Q.332. Therefore, according to you, aunt Gloria was allegedly tutored your grandmother who was senile at that time. Is that correct?
A. Very much so."
131. She admitted that she had requested her father to approach the testatrix for permission to extend the house since her husband did not have the house in Mumbai she had a job in Mumbai and her husband had the funds for building of extension. According to her the refusal of permission to build a extension upset her more than her father. She deposed that she did not know whether her father could have persuaded the testatrix once again to grant such permission. In answer to question no.468 Cherylanne admitted that although the testatrix was in bed when she wanted to walk she needed help. This was in the year around 1984.
132. In her cross examination Cherylanne deposed that it was she who had wanted to build additional room/s over the present ground floor kitchen and the testatrix was aware of this intention. She admits to having made couple of attempts to obtain permission but the testatrix refused each time. According to the witness, refusal was not by the testatrix but by Gloria since the testatrix was influenced by 111/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:31 ::: ts818.88 Gloria. According to her on the second attempt witness was accompanied her father Raymond but the testatrix was already 'influenced' by Gloria.
133. She admitted later that she was not present when Raymond asked permission for extension of the first floor. In my view, the evidence of this witness to the extent it pertains to events which had transpired in the early part of the life of the testatrix, Raymond and the other family members and to the extent to which the witness was not personally unaware, having adopted the deposition of her father Raymond, is hearsay. For the purposes of consideration is in the present case what is material is the depositions of witness to the extent it relates to her personal involvement in dealing with the testatrix, her father Raymond, mother Joyce, aunts Vellie and Etty and of course aunt Gloria.
134. In case of Gorantla Thataiah (supra) the Supreme Court observed that in the facts of that case there was abundant testimony proving beyond doubt that the testatrix was in a weak condition and delirious state of mind during the execution of Will. Furthermore, the testator was found to be slow witted and below the average level of intelligence and understanding and on this basis the Court found that 112/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:31 ::: ts818.88 the Will was not executed in a sound and disposing state of mind and was not legally valid and binding upon the plaintiff. The Court also observed that what are suspicious circumstances must be judged in the facts of each case and propounder taking a prominent part in the execution of Will which confers substantial benefits of him itself is a suspicious circumstance. In view of what I have observed while dealing with the case of Shashi Kumar Banerjee (supra), I find that extent of involvement of Gloria cannot be said to be having influenced the testatrix's decision to execute the Will in the manner it has been.
135. In the case of Smt.Kamala Devi Banarsi Dass and Others (supra) the Punjab and Haryana High Court had set out principles that the Court must observe to ascertain intention of the testatrix and give effect. The Court inter alia observed that the mental soundness and the physical fitness of the testator is an important circumstance when the testatorial capacity is being scrutinized. To test whether the Will was unnatural or unreasonable or improper, it calls for close examination particularly where the Will is not registered and when the Will is executed by the testator who is physically and mentally feeble and near his end. Furthermore, where the propounder of a Will takes a pecuniary benefit under the Will the Court's suspicion is aroused. However, what I find that the judgment also observes that in 113/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:31 ::: ts818.88 construing a Will, the all important consideration is ascertainment and to effectuate the testator's intention. Passions and prejudice and even the obsessions of the testator have to be taken account of. The prejudice against a near relative by itself is no ground for invalidating his Will even if such a prejudice is ill founded or unreasonable. The Court also observed that the testator is at liberty to omit his relations for reasons that may be bad, and this will not deprive him of testatorial power to execute the Will merely because the testator does not like a person or like a relation to his, he is thereby not deprived of mental capacity to make a Will and the law gives him a right to make a Will which may be according to others unjust, injudicious or unreasonable. In the present case there is no evidence of testatrix being unreasonable. Bequests made give the reasons and as supported by intrinsic evidence in the Will itself. We are not dealing with a Will which is unnatural. In my view there are no circumstances which can be held to be so suspicious so as to invalidate the Will. The observations in Kamala Devi Banarsi Dass support the propounders of the Will in the instant case.
136. If indeed the testatrix was suffering from senility the evidence of Dr. Owen Pinto would have been crucial for the defendants in Suit 34. He would have best placed to opine on the state of health of the testatrix.
114/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:31 :::ts818.88 He was probably aware of the bequests proposed to be made as otherwise Dr. Pinto may not have declined to attend the execution of the Will claiming that he was a friend of the entire family.
Alternatively, his refusal to attend at the instance of Gloria may also have been caused by his knowledge of the mental state of the testatrix and the failure of the defendants to examine Dr. Pinto is a factor to be held against the defendants.
137. Much of the cross examination of Gloria dwells upon her shifting from Dadar and as to why ration card was shifted from Dadar.
ig In my view this is not of much relevance. She did not recall whether she made any application or affidavit for transfer of plot No.29 in her name. A suggestion made that Gloria had left matrimonial home and returned to Anthony cottage only with intention of grabbing the property was promptly denied. She also denied a suggestion that Gloria had moved back to Anthony's Cottage after two months of marriage and thereafter to create discord amongst other siblings and to grab the property. I find this suggestion as one demonstrative of the sheer inability to establish that the Will was invalid.
138. In the cross examination on 30th June, 2006 Gloria was asked whether she had left her mother alone in Mumbai when she went abroad to which Gloria answered in the negative and explained that 115/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:31 ::: ts818.88 a servant was with her. There is nothing in evidence to suggest by any of witnesses on behalf of the plaintiffs or defendants in either of the suits that when Gloria had gone abroad, whether any of other siblings stayed at Anthony cottage to look after their mother.
139. When the endorsement on the Will made by Dr. Gupta was sought to be taken on record by the plaintiffs, objection was taken by Mr. Vernekar and it was an issue reserved to be ruled upon. I have not heard any objections in this aspect or reiterated during the arguments before me. In any event I am of the view that the witness having deposed to the same and having owed up his endorsement on the Will, there is no reason why the endorsement on the Will should not be read in evidence. In any event this controversy is not relevant since Dr. Gupta has specifically deposed to having made an endorsement as above. He admitted to have deposed at the instance of Gloria. Part of the cross examination of Dr. Gupta alluded to the fact that she was in poor physical health. I do not find this of much relevance in view of the fact that the role of Dr. Gupta was to ascertain her mental state and that she was of a sound disposing mind. Dr. Gupta deposed that he would not have been surprised if the testatrix's mind as in the case of old persons' state of mind is never the same at all times but when Dr. Gupta examined the testatrix he found her to be 116/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:31 ::: ts818.88 quite normal. If there was a lapse of time between his examining her and when the Will is executed there may have been some change in understanding. However, in the present case the evidence on record suggested that Dr. Gupta had put his endorsement at the end and he had examined the testatrix prior to her executing the Will. The cross examination of Dr. Gupta also records that he did not recall any one having read out the Will during the time when he was present with the testatrix but denied that he offered his certification merely to oblige his Fr. Esperance.
140. 'Senile' is defined in the Oxford dictionary as having weakness or diseases of old age especially a loss of mental faculties, characteristic of or caused by old age. 'Senile Dementia ' on the other hand is dementia occurring in the old age as a result of progressive brain degeneration. 'Dementia' is defined as a chronic or persistent mental disorder marked by memory failures, personality changes and impaired reasoning. Vellie had deposed that the testatrix was suffering from third degree dementia. If indeed she was diagnosed with dementia / senile dementia, there would have been some medical evidence, prescription for relevant drugs etc, In the present case the defendants have not been able to establish such a medical condition of the testatrix. Save and except for vague and repeated references to 117/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:31 ::: ts818.88 the cardiac diseases, senility being incapable of understanding the implications of any writing and hence incapable of making any testamentary disposition there is in my considered opinion no evidence of senility or inability to arrange for her affairs.
141. The medical dictionaries define 'Dementia' as a condition caused due to brain disease resulting in a decline in all areas of mental ability. 'Senile' means of or pertaining to old age, characteristic of old age and 'Senility' means the reduction of mental capability during old age. Black's Law dictionary defines 'Senile' as mental feebleness or impairment caused by old age. A senile person (in the legal, as opposed to the popular sense) is incompetent to enter into a binding contract or execute a Will. It is also termed as 'Senile dementia'.
Senility in my view cannot be inferred from pleadings or statements in affidavits. Alleged senility, being incapable of understanding the implications of any writing and hence incapable of making any testamentary disposition being the constant refrain voiced by all the defendants, admittedly, there has been no medical opinion sought or obtained about the testatrix suffering from any form of senility or dementia.
142. All along the admitted position is to the effect that the testatrix 118/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:31 ::: ts818.88 was physically weak and in the later years had difficulty in attending to daily chores and needing assistance. This is not uncommon in old age. However, such a condition need not be mentally debilitating and it is eminently possible that the testatrix though physically weak had good mental capabilities and indeed if she was capable of being influenced by Gloria so be it. The entire evidence has proceeded on the basis that she was old, weak and incapable of understanding the meaning of any writing because she had cardiac ailments, high blood pressure etc. ig There is not an iota of evidence on behalf of the defendants' as to challenge to the Will and the plaintiffs in Suit 818 have failed to establish dysfunctional mental state of the testatrix.
143. Cherylanne has deposed that she sensed a change of attitude of the testatrix towards her since Gloria had taken charge of the affairs as the testatrix grew old and senile she was controlled and totally dependent on Gloria of day to day needs, her medicines and her day to day meals.
This is a very important admission inasmuch as this witness admits that the Gloria was alone providing food, medicines and attending to day to day needs of the testatrix. According to the witness, her parents were treated as rank outsiders by Gloria who never allowed her family to meet the testatrix independent and Gloria was always monitor the 119/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:31 ::: ts818.88 conversation. It seemed as if the testatrix was totally under Gloria's control and appeared to have lost her sense of thinking and reasoning even this statement indicate that the testatrix knew exactly what she wanted to Gloria to do if she had actually lost her sense. To my mind it is not possible to avoid contact with other siblings if the other siblings were wanting to spent time with the testatrix they can easily have done so. There is no evidence at all as to the involvement of the other siblings in the day to day life of the testatrix ever since they began living separately. Cherylanne has virtually adopted the statements of her Aunts and father. A suggestion was put to the witness in question no.675 whether refusal by the testatrix to grant permission to the proposed additional construction on the first floor would destroy the senility theory. The witness answered in the negative. As regards Raymond not having helped the testatrix financially the witness contended that aunt Gloria had access to monies received from sale of a lot of fruits from the compound of Anthony's Cottage.
144. In Question No.678 the witness was asked whether in January 1985 when they visited testatrix after their marriage Cherylanne and her husband, the testatrix had walked across the dining room and given Cherylanne a gold ring. She answered in the negative and stated that the testatrix was seated in chair in the living room. She admitted to 120/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:31 ::: ts818.88 having received the gold ring from the testatrix which Aunt Gloria had held in her hand first. After the testatrix blessed the couple, aunt Gloria gave the ring to testatrix and the testatrix herself put the ring on Cherylanne's finger. This admission is in my view crucial in deciding the controversy between the parties. The relevant question and the answers are reproduced below for ease of reference:
"Q.678 I put it to you that in January 1985, when you went to take your grandmother's blessings, she walked to the dining room to meet you and gave you a gold ring as a wedding gift and therefore, your answer to Q.76 is false ?
A. I disagree. My grandmother was seated in a chair in the living room. Yes, she did give me a gold ring, which aunt Glory had it in her hand first. After she blessed us, aunt Glory gave the ring to her and she put it on my finger after which my husband and I rose from our knees because we knelt down for her blessings."
In continuation of this line of cross examination a further question no.695 was put to the witness which read as follows :
Q.695 I put it to you that when your grandmother put the gold ring on your finger at that time, she said to you "Congratulations. Be happy" ?
A. Not true.
145. Although the witness did not want to admit to the testatrix having congratulated her, Cherylanne admitted that the testatrix had indeed put on a gold ring on her finger and in the absence of anything to the 121/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:31 ::: ts818.88 contrary it is safe to presume that the ring was correctly put on the ring finger and that the testatrix blessed the couple. This in my view is clearly indicative of the fact that in January 1985 i.e. eight months before the Will was executed and about a year before the testatrix passed away, she knew actually what to do with the ring which her daughter Gloria had handed over to her.
146. In Question No.697 the witness was asked whether there was any physical bar by Aunt Gloria or any restriction to anybody visiting the testatrix, to which the witness replied as follows;
"Q.697. I put it to you that in view of your previous answers, there was no physical bar by aunt Glory nor did your aunt Glory restrict anybody's visit to your grandmother ?
A. Not true. We were never given an audience with just our grandmother and us alone. I had mentioned this earlier."
147. Therefore, nobody was being physically prevented from meeting the testatrix. The only case sought to be made out is that a visitor could never be alone with the testatrix. In my view, whenever any person receives visitors and more particularly family members and especially in the Indian context, it is but natural that the host or hostess would receive and spend time with the visitor. This in my view is a common courtesy and it would be disheartening if the siblings and their family was left alone. A visit by the sibling would normally be a happy 122/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:31 ::: ts818.88 occasion and specially since evidence on record indicates that the visits were not a daily affair. It was but natural for aunt Gloria to be around. On the other hand, if aunt Gloria was always "monitoring" the visit it would be probably have led to confrontations or arguments and it is not the case of defendants that any such arguments or confrontations had ensued. In the circumstances it is difficult to accept the contention that there was any restraint on the siblings or children meeting testatrix. There is no evidence on record which suggest that siblings were prevented in any manner from meeting or spending time with the testatrix.
148. There are many aspects of the matter which will cast doubt on whether Gloria actually prevented the others from meeting the testatrix and whether Gloria actually treated the testatrix and poisoned her mind against her other siblings and family members. I find it astonishing that in answer to question 796 when the cross examiner alluded to Vellie and Etty not being on talking terms after their marriages, Cherylanne initially denied it but then stated that although she did not know of it if at all there was any enmity between Vellie and Etty, aunt Gloria was the cause of it. This answer of the witness in my view demonstrates an attempt and in my considered opinion unjustifiable, to blame Gloria for without relevant cause because firstly 123/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:31 ::: ts818.88 the witness has clearly stated that she did not know anything about the suggested friction between her aunts Vellie and Etty.
149. The witness was asked in what manner Gloria prevented any other family member from getting involved with the affairs of the testatrix to which she remembered that at one point in time aunt Vellie had gone visiting to the testatrix had soiled her sheets and when aunt Vellie offered to help aunt Gloria refused to let her do it. This can hardly be seen as an example of Gloria wanting to exclude everyone else in looking after the testatrix. On the contrary Gloria may well have been telling her sister not to take the trouble since Gloria was used to attending such situations.
150. None other witnesses have been able to depose as to any other incident involving Gloria's conduct, her relationships with her siblings or her mother. There is no evidence of any ill treatment by Gloria of any of the siblings, their children family members etc. On the other hand the evidence of Cherylanne has revealed that despite allegations heaped up against Gloria it was Gloria who was holding the ring presented to her by the testatrix. I ask myself whether it is conceivable that a senile person, incapable of understanding things around her, be capable of such benevolence? It is also Cherylanne's positive assertion 124/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:31 ::: ts818.88 that her husband and she had knelt down to receive blessings of the testatrix. If indeed they were kneeling to receive blessings, the testatrix could not have been "bedridden". There is a difference between being 'bedridden' and being largely 'confined to bed'. Even if one is confined to bed due to age and health problems he or she cannot be said to be bedridden. In fact Vellie has during cross examination agreed that the testatrix was "almost bedridden" indicating that the testatrix was not completely bedridden. Cherylanne has deposed that when the testatrix wanted to walk she needed help.
151. In my view if the evidence of Cherylanne establishes that the testatrix could set up and the testatrix was conscious enough so as to bless the newly weds and put the ring on Cherylanne's finger. It is unbelievable that Anna Isabel Pereira was senile. Moreover, if she was unaware of what she was doing would Gloria have given her the ring to put on Cherylanne's finger? In my view the answer to this question must be in the negative. Moreover, it is not Cherylanne's case that the testatrix could not put the ring on her finger. Presumably the testatrix put the ring on Cherylanne's ring finger as otherwise Cherylanne would have definitely said so. There is no evidence to suggest that Gloria had opposed the testatrix's intention to give Cherylanne the ring.
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152. It is useful to consider the propositions laid down in R. Venkatachala Iyengar (supra) which are as follows:-
1. Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty.
2. Since Section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by Section 68 of the Evidence Act, 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.
3.
Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on the propounder can be taken to is discharged on proof of the essential facts which go into the making of the will.
4. Cases in which the execution of the will is surrounded by suspicious circumstances stated on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raises suspicious about the execution of the will. The suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attended upon 126/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:31 ::: ts818.88 the execution of the will excite the suspicion of the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator.
5. It is in connection with will,s the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. The test emphasizes that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator.
6. If a caveator alleges fraud, undue influence, coercion etc in regard to the execution of the will such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter.
153. The facts of this case meets the tests set out above. Moreover applying the tests in Leela Rajagopal's case (Supra) it is not possible to hold that the Will is not valid. There is sufficient evidence in my view to establish the fact that the Gloria D'Souza had taken care of the testatrix for a large part of the testatrix's life after the marriage of her daughters Etty and Vellie and after her son Raymond started residing separately. I am satisfied that the exclusion of the others was intentional and was given effect to by the testatrix of her own volition. The defendants have on one hand claimed that the Will was not genuine since the same 127/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:31 ::: ts818.88 was not validly executed on account of alleged senility of the testatrix who was not in a sound and disposing state of mind. Furthermore, the allegation of undue influence are sought to be made, however, both these contentions are bereft of any evidential basis.
154. It will be useful to reproduce Section 63 for ease of reference :
"Section 63. Execution of unprivileged Wills. - Every testator, not being a soldier employed in an expedition or engaged in actual warfare [or an airman so employed or engaged] or a mariner at sea, shall execute his Will according to the following rules"--
(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.
(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 been 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."128/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:31 :::
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155. Being an unprivileged Will the requirements of Section 63 (a), (b) and (c) in my opinion are fulfilled. The plaintiff has failed to establish that making of the Will has been caused by force, coercion or in any manner so as to render it void. Nothing in the pleadings or evidence of the defendants establishes fraud or undue influence or coercion. This contention is merely taken up by the defendants as part of omnibus defence that the Will is executed under suspicious circumstances. In my view the requirements of Section 61 have also not been met. The intention of the testator is clear in the Will. The bequests are not uncertain but specific. Despite the fact that there is sufficient evidence to conclude the relationship between the testatrix and/or her son Raymond was far from cordial, the testatrix has fairly provided for life interest in the rooms constructed. The very fact that Raymond and Cherylanne had approached the testatrix in or around 1985 at the time of marriage of Cherylanne indicates that Raymond had abandoned his plea of being entitled to 1/4th undivided share in the property. If indeed this was so he would have taken suitable steps to enforce his rights and at the appropriate time. He would not have conceded the position that she alone was the lessee of the plot and owner of Anthony's cottage, especially given the fact that he had sought to contest nomination in favour of Gloria at the material time and later abandoned that plea. In my view without a shadow of doubt, 129/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:31 ::: ts818.88 the defendants have been unable to establish that the testatrix had no mental capacity to make a testamentary disposition. Issue no.2 is therefore answered in the negative.
Issue 3A:
156. That brings us to Issue no.3A. The plaint in Suit No.818 of 1988 proceeds on the basis that 2/3rd share in the plot i.e. leasehold share of 1/6th of the testatrix father. The plaintiff and defendant nos.1 to 3 acquired 1/12th share each in leasehold land i.e. 1/4th share of balance 2/3rd share of the testatrix plaintiff's half share and, therefore, seeks a declaration to that effect. Mr. Vernekar referred to these depositions in the affidavit of evidence in support of his case that Suit No.34 of 1989 be dismissed and Suit No.818 of 1988 be decreed.
The plaint in Suit No.818 of 1988 proceeds on the basis that 2/3rd share in the plot i.e. leasehold share of 1/6th of the deceased father.
The plaintiff and defendant nos.1 to 3 therefore acquired 1/12th share each in leasehold land i.e. 1/4th share of balance 2/3rd share of the deceased plaintiff's half share and, therefore, seeks a declaration to that effect. What I find surprising is that the affidavit in lieu of examination in chief filed by Vellie as a deposition common to both Suit No.818 of 1988 as well as Suit No.34 of 1989, it is completely 130/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:31 ::: ts818.88 silent on the plea contained in Suit No.818 of 1988.
157. There is virtually no evidence led by the plaintiff in Suit No.818 of 1988 in support of the case in the plaint. Vellie has deposed that nomination in favour of Gloria was a result of fraud. No particulars of alleged fraud or exercise of undue influence have been set out in the plaint, affidavit of evidence. In paragraph 31 of her affidavit Vellie states that "Once the purported Will is disproved and set aside it should be declared ig that the testatrix died intestate and thereupon her estate devolves upon all the legal heirs and property should be partitioned in proportion of 1/4th share each" . Save and except this solitary plea, no evidence whatsoever is forthcoming as to the claim for partition of the property. In fact, it is not in dispute that old Plot No.29 and new Plot No.40 is owned by the Salsette society. The testatrix's husband and she were only lessees.
158. The intention of the testatrix is fairly clear from the writing dated 26th September, 1985. The evidence relied upon by the plaintiff in Suit No.818 of 1988 and the defendants in Suit No.34 of 1989 does not in my view help in establishing their case in Suit 818 of 1988.
The Will records that sometime in the year 1961 the testatrix's son 131/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:31 ::: ts818.88 Raymond with consent of the testatrix built three rooms and a bathroom on the first floor and that he has no other right to the plot of land. The defendants have failed to establish that all siblings are entitled to 1/4th share as set out in the plaint. In fact the case in the plaint is virtually abandoned. No part of the evidence led by Vellie in Suit No.818 of 1988 or her niece Cherylanne has dealt with this claim. Vide order dated 23rd February, 2012 the Court recorded issues in both suits are common. The estate is same and common evidence was accordingly led by both parties and no attempt has been made to establish a case in the plaint in Suit No.818 of 1988.
159. In my view the defendants have also failed to establish that the testatrix was senile, completely bedridden for the later years of her life and was incapable of making any testamentary disposition. The instances that I have adverted to hereinabove pertain to Raymond seeking permission from the testatrix to construct in January 1985, wishing visitors "Merry Christmas" in September 1985, having blessed Cherylanne and her husband and having presented Cherylanne with gold ring which was admittedly handed to the testatrix by Aunt Gloria clearly destroys the case of the defendants.
It is also in my view goes to the root of allegations of avarice and greed made against Gloria and other allegations made by Cherylanne 132/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:31 ::: ts818.88 in her evidence as also Vellie, who stated that from very younger days Gloria was imaginative and would make up stories and had conducted herself in a manner so as to usurp her mother's property.
Throughout their evidence, the defendants have conceded that it is their mother's property that is sought to be usurped. (emphasis supplied). Save and except of the contention in the plaint in Suit No.818 of 1988 wherein Vellie claimed equal share in the property for all siblings, Vellie, Raymond and/or Etty neither pleaded nor adduced evidence to the effect that Gloria was trying to usurp their share of property. The Vellie's case in Suit No.818 of 1988 has been that the testatrix was only a trustee of the property. The evidence has proceeded on the basis that Gloria, who is defendant no.1 in Suit No.818 of 1988 was trying to usurp property of the testatrix and not their share in the property. Apart from questioning the nomination and the bequest made in favour of Gloria, the pleadings and evidence do not support the defendants plea of being entitled to 1/4th share.
There is no challenge to the Salsette Society's actions in having transferred the plot to Gloria. In the circumstances I have no hesitation in answering the issue no.3A in the negative.
Issue no.3 :
160. As a consequence of having held issue numbers 1, 2 and 3A as above, 133/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:32 ::: ts818.88 I answer issue no.3 in the affirmative i.e. the plaintiff Gloria D'sylva is entitled to probate of the last Will and testament of late Anna Isabel Periera dated 29th September 1985/Exhibit P1.
161. In the result I pass the following order:-
(a) Suit No.818 of 1988 is dismissed.
(b) The Caveats filed in Testamentary Petition No.155 of 1989 are dismissed.
(c) Testamentary Suit No.34 of 1989 shall proceed to grant. Probate shall be granted subject to removal of other office objections, if any.
(d) There will be no order as to costs.
(A. K. MENON, J.)
Upon pronouncement of this Judgement both the learned counsel Mr. Vernekar and Mr. D'Mello seek continuation of the interim order passed in Notice of Motion no.919 of 1988 on 6 th July, 1989. Mr. Chhabria learned counsel for the Plaintiffs opposes the application but offers to make a statement in terms of the injunction to operate for four weeks.134/135 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 01/02/2017 00:35:32 :::
ts818.88 Considering that in 1989 the statement made at the disposal of the said Motion was found insufficient resulting in the injunction being granted, the following Order will safeguard all concerns.
(i) The final grant in Testamentary Suit No.34 of 1989 will not be issued for a period of eight weeks from today.
(ii) In the meantime, the interim order of injunction dated 6 th July, 1989 shall continue for a period of eight weeks from today.
ig (A. K. MENON, J.)
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