Bombay High Court

COLETTE M. LOUIS and ANR.versusMrs. Esssther Doric Desouza and Anr

Decided: 22 September 2026
Disposal: DISPOSED OFF

Holding

The Will dated 20 April 1983 is valid, duly executed and attested, and probate is to be granted to the plaintiffs.

Summary

The plaintiffs sought probate of a Will dated 20 April 1983 executed by the deceased Hilary Joseph DeSouza, naming the plaintiff‑niece and her husband as executors and beneficiaries. The defendants, the deceased's brother and sister, opposed the grant on grounds of alleged lack of testamentary capacity, fraud and improper execution, but failed to produce any evidence. The court held that the Will was duly signed, attested by a competent witness and registered, satisfying Section 63 of the Indian Succession Act. Evidence showed the testator was of sound mind at the time of execution and no fraud or undue influence was proved. The defendants did not lead any evidence to establish a caveatable interest, and adverse inference was drawn under Section 114(g) of the Evidence Act. Consequently, the court granted probate of the Will to the plaintiffs.

Issues considered

Whether the Will dated 20 April 1983 is the last Will and Testament of the testator and was executed and attested in accordance with law.
Whether the testator was of sound disposing mind at the time of execution.
Whether the defendants have any caveatable interest to contest the probate.
Whether the Will is bogus, fabricated or otherwise invalid.
Whether the plaintiffs are entitled to probate of the Will.
What order should be made.

Legislation cited

Indian Evidence Act, 1872 — s. 114(g)
Indian Succession Act, 1925 — s. 141, 222, 223, 224, 63

Subjects

Probate
Will
Testamentary capacity
Attestation
Caveat
Executor-beneficiary
Adverse inference
Limitation period

Judgment

5-TS-39-1995

Digitally
signed by
MOHAMMAD
MOHAMMAD AREEB
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
AREEB MOHD
MOHD AKBAR
AKBAR Date:
2026.09.23
ORDINARY ORIGINAL CIVIL JURISDICTION
19:20:42
+0530

TESTAMENTARY AND INTESTATE JURISDICTION
TESTAMENTARY SUIT NO. 39 OF 1995
IN
TESTAMENTARY PETITION NO. 107 OF 1991

Colette M. Louis & Anr. … Plaintiffs
Versus
Junita A. Ubale & Anr … Defendants
_______
Mr. Karl Tamboly with Mr. Malcolm Siganporia and Mr. Arup Pereira i/b.
Nimesh Bhatt for the Plaintiffs.
_______
CORAM : ARIF S. DOCTOR J.
RESERVED ON : 17th AUGUST 2026
PRONOUNCED ON : 22nd SEPTEMBER 2026

JUDGMENT:

1. The Plaintiffs have, by way of the present Testamentary Suit, sought Probate

of a Will dated 20th April 1983 (“the Will”), which is stated to be the Last

Will and Testament of one Hilary Joseph DeSouza (“the Testator”), who

passed away in Bombay on 19th October 1984.

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2. The family tree of the Testator, at the time of his death, is as follows, viz.

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3. Plaintiff No. 1 is the Testator’s niece, being the daughter of the Testator’s

sister, i.e., Theresa Helen Figueredo (“Theresa”), and resided with the

Testator at “Patronage”, Santa Cruz, Mumbai. Plaintiff No. 1 is named as

both an executor and a beneficiary under the Will, while Plaintiff No. 2,

husband of Plaintiff No. 1, is the other executor named under the Will.

4. The Will bears the signatures of two attesting witnesses, i.e., Francis Joseph

Athaide, Advocate ("PW-1"), and Owen D’Souza, Advocate. The Will was

also registered before the Sub-Registrar of Assurances, Bandra (East), on

22nd April 1983.

5. By the said Will, the Testator revoked all his earlier Wills and testamentary

dispositions and appointed Theresa, Plaintiff No. 1 and Plaintiff No. 2, as his

Executors and Trustees. The Testator devised and bequeathed to Plaintiff No.

1 the property and building known as Patronage, bearing Suburban Survey

No. H/483 (Old SS XXIV), which he stated was inherited by him solely and

absolutely, together with his holdings in the specified companies and the

telephone connection installed at the said premises.

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6. The grant of Probate is opposed by Defendant No. 1, Doric Peter DeSouza

(“Doric”), who was the brother of the Testator, and by Defendant No. 2,

Juanita A. Ubale (“Juanita”), who was the sister of the Testator. Both Doric

and Juanita filed their respective Caveats and Affidavit in Support opposing

the grant of Probate in favour of the Plaintiffs. During the pendency of the

Suit, Doric passed away, and his legal heirs were impleaded Defendant Nos.

1(a) to 1(d).

7. This Court, vide an Order dated 13th December 2011, framed the following

Issues for determination, viz.

1. Do the Plaintiffs prove that the writing dated 20th April 1983
executed by the deceased Hilary Joseph D’Souza was his last Will and
Testament and the same has been executed and attested in accordance
with law?
2. Do the Plaintiffs prove that the Will dated 20th April 1983 was
made by the deceased while he was in sound disposing state of mind?
3. Do the Plaintiffs prove that the Defendant has no caveatable
interest and is not entitled to contest the proceeding?
4. Does the Defendant prove that the Will of the deceased is bogus and
fabricated and/or is otherwise invalid as alleged in the Affidavit in
Support of the caveat filed by the Defendant?

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5. Whether the plaintiffs are entitled to the probate of the Will?
6. What order?

8. The Parties examined the following witnesses, viz.

Plaintiff’s Witnesses Defendants’ Witnesses

PW-1: Mr. Francis Athaide DW-1: Mr. Dwayne
(Advocate and Attesting DeSouza (the son of
Witness) Original Defendant No. 1,
i.e., Doric)

PW-2: Ms. Colette M. Louis
(Plaintiff No. 1)

9. After the Defendants’ evidence was closed on 2nd March 2017, Defendant

Nos. 1(a) to 1(d) sought to lead additional evidence by Notice of Motion No.

3 of 2020. However, despite repeated opportunities recorded in the Orders of

this Court dated 12th September 2025, 16th September 2025, 20th January

2026, and 21st January 2026, the Defendants repeatedly failed to appear, and

the Notice of Motion was dismissed by Order dated 9th March 2026.

10.The Suit was thus taken up for final hearing.

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Submissions on behalf of the Plaintiffs:

11.Mr. Tamboly, learned counsel appearing on behalf of the Plaintiffs, at the

outset submitted that the Testator was one of four children born to Mr. John

Catejan DeSouza and Mrs. Apolonia DeSouza, the others being Theresa

(Plaintiff No. 1’s mother), Doric and Juanita, and that the Testator never

married. He submitted that Plaintiff No. 1 came to reside at Patronage with

the Testator and her grandparents in 1969 and continued to do so with

Plaintiff No. 2 and her children after her marriage in 1973. He further

submitted that the Will, by its own terms, revoked all prior testamentary

dispositions of the Testator, and that Theresa had affirmed an Affidavit dated

1st November 1990 stating that she had no objection to the grant of Probate.

I. On Execution and Attestation in Accordance with Law

12.Mr. Tamboly submitted that Section 63 of the Indian Succession Act, 1925

(“Succession Act"), required a party who seeks Probate to establish the

following (i) signing or affixing of a mark by the testator, or by another

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person in his presence and by his direction; (ii) that such signature or mark

be placed so as to give effect to the writing as a Will; and (iii) attestation by

two or more witnesses, each of whom has seen the testator sign or affix his

mark. In support of his contention, he placed reliance upon the decision in

Meena Pradhan v. Kamla Pradhan,1 where the Hon’ble Supreme Court

held that a Will must fulfil all the formalities under Section 63, and that for

proving execution, at least one attesting witness who is alive, subject to the

process of Court, and capable of giving evidence must be examined.

13.Mr. Tamboly submitted that PW-1 furnished direct and unimpeachable

testimony that he witnessed the Testator sign the Will and that PW-1 and Mr.

Owen D’souza attested it. This, he submitted, was a position taken by PW-1

in its response to the cross-examination:

Q.106 I put it to you that the question of attestation of signature
of alleged Will of Hilary did not arise. Ans. That is not correct.
The deceased did put his signature and initials on the Will at
Exhibit “P-26” and therefore Advocate Mr. Owen D’Souza and

1
(2023) 9 SCC 734.

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myself did attest the Will and the execution and did out our
signatures on the Will as attesting witnesses.

14.Mr. Tamboly then submitted that this testimony, read with PW-1’s account of

accompanying the Testator to the Sub-Registrar’s office for registration on

22nd April 1983, satisfied the requirements of Section 63, and that in any

event, reliance on a single attesting witness was permissible. In support of

this contention, he placed reliance upon the decisions of Janki Narayan

Bhoir v. Narayan Namdeo Kadam,2 and Niranjan Umeshchandra Joshi v.

Mrudula Jyoti Rao3, wherein it was held that where one attesting witness

proves execution under Section 63(c), examination of the other attesting

witness may be dispensed with.

15.He further submitted that the identity of the Will itself was not in dispute, as

the Defendants had not set up the existence of any later testamentary writing,

and the Will itself recorded the revocation of all prior Wills, and Plaintiff

2
(2003) 2 SCC 91.
3
(2006) 13 SCC 433.

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No. 1 had confirmed Exhibit P-26 to be the Testator’s last Will in her

Affidavit dated 6th March 2012, a fact that still remained unchallenged.

16.Mr. Tamboly pointed out that PW-1’s Affidavits dated 12th November 1990

and 21st February 2015 both recorded that the Testator, at the time of

executing the Will, was “of sound and disposable mind memory and

understanding” and acted “of his free will and pleasure”. He submitted that

this was corroborated by the Testator having personally attended before the

Sub-Registrar of Assurances for registration on 22nd April 1983, where he

was independently examined, and by his continued dealings with the Society

and Mr. Owen D’Souza’s office through July 1984, over a year after the

execution of the Will.

17.In support of this contention, Mr. Tamboly placed reliance on PW-2’s

testimony that the Testator travelled to London unaccompanied between

October 1982 and January 1983, only months before executing the Will, and

continued to correspond with the Society and third parties in his own hand

through mid-1984. He submitted that the Testator’s partial paralytic stroke

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occurred only in May 1984, which was clearly over a year after the Will was

signed, and that PW-2, under cross-examination, repeatedly and consistently

rejected the suggestion of any stroke in March 1983, confirming that the

Testator’s speech was affected only towards the end of August/early

September 1984. In support of this, he relied upon the following questions

put to PW-2 in cross-examination of PW-2 viz.

Q314. I put it to you that your statement in paragraph 20 of your
affidavit of evidence in chief about Hilary suffering from paralysis
stroke in May 1984 is false.
Ans. It is not a false statement.

Q341 During his period of illness, did Hilary correspond with any of
the local authorities?
Ans. Yes, he did.

Q342 Which are these authorities?
Ans. I remember Hilary going to the Catholic Society and to the City
Survey Office
.
Q343 Did you accompany Hilary on these occasions?
Ans. No.

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Q344 Who accompanied Hilary?
Ans. He used to leave home on his own.

Q345 Would it be correct to say that on account of the stroke, Hilary’s
one side of the body was affected and therefore, he was neither in a
position to walk or to speak as his speech was also affected?
Ans. Initially it was a mild stroke and he was able to speak and move
around.

Q346 During which month and year was his speech affected?
Ans. Probably, at the end of August, early September 1984.

Q347 Did Hilary execute any writing during this period?
Ans. I do not know.

Q348 Would it therefore be correct to say that during this period
mentioned in the above two answers, Hilary was not in a position
either to write, to instruct any other third person for the purpose of
preparation and / or execution of any documents?
Ans. He was able to request someone to help him out. He was not able
to write but he could ask someone for help to executed whatever he
needed it.

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In light of the cross-examination, Mr. Tamboly pointed out that even

thereafter the Testator remained capable of asking others to help him execute

what he needed.

18.Mr. Tamboly submitted that this candid evidence, which was volunteered by

the Plaintiffs’ own witness rather than concealed, had discharged the

Plaintiffs’ burden of proving sound and disposing mind at the time of

execution, and that the Defendants had not dislodged it in any manner.

II. On the Defendants’ failure to lead evidence and adverse inference

19.Mr. Tamboly then submitted that neither Doric nor Juanita, who are the

original Caveators, gave any evidence to substantiate the grounds set out in

their own Caveats and Affidavits in Support, despite those Affidavits

alleging that the Testator was an alcoholic and had suffered strokes affecting

his faculties well before April 1983. He submitted that Section 114(g) of the

Evidence Act, 1872, entitles the Court to draw an adverse inference against a

party who withholds evidence within its knowledge and power. In support of

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this contention, he placed reliance on Gopal Krishnaji Khetkar v. Mohamed

Haji Latif4, which held:

5. Even if the burden of proof does not lie on a party the Court
may draw an adverse inference if he withholds important
documents in his possession which can throw light on the facts
at issue.

20.He submitted that this was particularly apposite to Juanita, who, in the

Plaintiffs’ case, used to accompany the Testator for physiotherapy at the

Ramakrishna Mission and was thus best placed to speak to his physical and

mental condition, yet chose not to testify in the matter at hand. As to DW-1’s

evidence, Mr. Tamboly submitted that his testimony was founded on

assumption rather than knowledge, for which he placed reliance upon the

decision of Kalyan Kumar Gogoi v. Ashutosh Agnihotri,5 which held the

following:

35. …The sayings and doings of the third person are, as a rule,
irrelevant, so that no proof of them can be admitted. Every act
done or spoken which is relevant on any ground must be proved

4
AIR 1968 SC 1413.
5
(2011) 2 SCC 532.

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by someone who saw it with his own eyes and heard it with his
own ears.

21.He then submitted that DW-1 admitted, under cross-examination, that his

statement regarding the Plaintiffs not spending on the Testator’s comfort was

“only an assumption” based on the absence of a wheelchair or handrails at

Patronage, and that his belief that the Testator was incapacitated prior to his

visit on 25th January 1984 was similarly an assumption drawn from a

singular overnight visit. He pointed out that DW-1 further admitted he was

not personally familiar with the family’s handwriting, had not been in

regular touch with Doric since 1976, and was unaware of the relationship

between the Testator and Doric. Mr. Tamboly submitted that such testimony,

being hearsay and conjecture, ought to be disregarded in its entirety.

22.Mr. Tamboly then submitted that on the Defendants’ plea that the Petition

was barred by a delay of eight years was entirely misplaced. In support of

this, he placed reliance upon the decision of the Hon’ble Supreme Court in

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Sanjay Sharma v. Krishnadhan Khaware6, where the Hon’ble Supreme

Court held:

4…The probate of a Will has three-fold purposes – (a) It is a
judicial stamp of approval on the genuineness of the Will; (b) It
acknowledges the appointment of an executor of the Will; (c) It
grants the executor to act for the purposes of the Will. Keeping
this in view, the specific view that the period of limitation for
probate commences from the death of the testator has been
rejected. 6…It is, therefore, a continuous right that can be
exercised at any time so long as the object of the Will survives.
The right to apply would therefore accrue from the date that it
becomes necessary to apply.

23. He thus submitted that the right to apply for Probate was a continuous one

and that the Plaintiffs had in fact lodged Probate Petition (L) No. 16 of 1986

within two years of the Testator’s death, but it was only the untraceability of

those papers on the record of this Court and not any fault of the Plaintiffs

that necessitated the fresh Petition filed on 27th September 1990.

6
2026 SCC OnLine SC 1337.

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III. On the executor-cum-beneficiary objection

24.Mr. Tamboly, then on the objection that Plaintiff No. 1, being a beneficiary,

could not also apply as executor, submitted that Section 141 of the ISA

provided that “if a legacy is bequeathed to a person who is named an

executor of the Will, he shall not take the legacy, unless he proves the will or

otherwise manifests an intention to act as executor.” He submitted that by

applying for Probate, Plaintiff No. 1 had manifested precisely such an

intention, and that there was no bar in law to an executor and beneficiary

being the same person, provided the beneficiary is not an attesting witness.

In support of this contention, he placed reliance on a Division Bench

decision of this Court in John Francis Anthony Gonsalves v. Agnes Mary

Conception Rebello7, where it was held:

8. On careful perusal of the section, it appears that he has
either to prove the Will or otherwise to manifest the intention to
act as executor. In the present case, evidence on record reveals
that the petitioners came to know about the existence of Will
only in April, 1990 and shortly thereafter they filed the petition

7
(2008) 3 Mah LJ 804.

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for probate and as per the evidence on record as well as
findings of the trial Court, they have also proved the Will.
Therefore, there could be no difficulty in granting probate to
them. In fact by immediately applying for probate, they have
also manifested their intention to act as an executors. The
learned trial Court wrongly came to conclusion that the
petitioners had not manifested their intention to act as
executors for long period of twenty-one years and are not
entitled to probate under section 141 of the Indian Succession
Act. Section 222 of the Indian Succession Act provides that
probate shall be granted only to an executor appointed by the
Will and under section 224 probate may be granted to several
executors simultaneously. Under section 223 probate can be
refused to a person, who is minor or is of unsound mind or is an
association of individuals unless it is a company. In the present
case, none of the circumstances are present under which
probate could be refused under section 223 of the Indian
Succession Act.

IV. On the Defendants’ caveatable interest

25.Mr. Tamboly then submitted that a person claiming a caveatable interest

must lead evidence to establish such interest. In support of this submission,

he placed reliance upon the following decisions of Jehangir Tehmas Patel v.

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Fateh Singh Cheema8, and Raj Kumar Mittal v. Rajesh Venkateshwar

Somani9, which further held that a caveator must indicate some ground

bearing on the admissibility of the Will to Probate, and that valid execution

turns on three aspects (i) the testator being of disposing state of mind, (ii) the

execution being voluntary and free of fraud, coercion, undue influence or

misrepresentation, and (iii) compliance with the formalities of signature and

attestation by two witnesses.

26.Mr. Tamboly took pains to point out that Doric in fact left Patronage in 1962

and did not maintain relations with the family thereafter, which was a fact

recorded contemporaneously in the family register maintained by John

deSouza and that Doric did not reside at the Property for decades preceding

the Testator’s death, a fact DW-1 himself admitted. He then submitted that

with regard to Juanita, she left Patronage permanently in February 1975

upon marrying against the family’s wishes, without either the Testator or the

Plaintiffs being invited to the wedding. In support of this, Mr. Tamboly

8
Testamentary Suit No. 65 of 2012.
9
(2017) 10 BOM CK 0068.

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placed reliance on Juanita’s own letter to the Testator dated 6th December

1975, annexed as Exhibit P-2, in which she admitted having had “absolutely

no contact” with the Testator, and stated she “cannot face” him “after all the

hurt I have caused you”, and signed off as “your sister who betrayed your

love”. Mr. Tamboly submitted that the Testator nonetheless forwarded her

six national savings certificates aggregating Rs. 10,800 on 22nd February

1977, annexed at Exhibit P-3 as “Patrimony”, which Juanita accepted and

acknowledged by signed receipt. He submitted that Juanita further admitted,

in a January 1988 interview published in ‘Savvy’ magazine, that the Testator

had objected to her marriage and that she had left the Property on that

account. He further submitted that Juanita raised no objection when, after the

Testator’s death, she received copies of the Deed of Assignment and the Will

in April 1985 and accepted the same through her conduct.

27.Mr. Tamboly then pointed out that Doric and Juanita, having been

represented by the same Advocate, adopted contrary and inconsistent

versions of the Testator’s state of health, yet neither led any evidence of their

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own, choosing instead to rely entirely on DW-1. He pointed out that DW-1’s

own testimony, as set out above, was founded on assumption and conjecture

and lacked personal knowledge even of the relationship between the Testator

and his own father, Doric. Mr. Tamboly submitted that DW-1 became

involved in the proceedings only after Doric’s death in 2003 and that his

cross-examination, in which he admitted, question after question, that his

allegations regarding the Testator’s health and the Plaintiffs’ conduct were

speculative, clearly demonstrated that the opposition to Probate was devoid

of factual foundation.

28.Basis this, Mr. Tamboly submitted that the Defendants had failed to establish

any caveatable interest and were not entitled to contest the grant of Probate

and that the Plaintiffs were, in consequence, entitled to Probate of the Will as

prayed.

Reasons and Conclusions:

29.After having considered the pleadings, the evidence before the Court and the

case law upon which reliance has been placed, I find as follows, viz.

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A.The Original Defendants, i.e., Doric and Juanita, though having filed their

respective Caveats and Affidavits in Support thereof, have not led any

evidence. Defendant No. 1, Doric, having died during the pendency of the

Suit, his legal heirs were brought on record thereof. Defendant No. 2,

Juanita, has also not entered the witness box. The only evidence led on

behalf of the Defendants is that of DW-1, Mr. Dwayne DeSouza, the son of

Doric. Thus, the Defendants have led no satisfactory evidence at all to

prove Issue No. 4, the burden of which lay squarely upon them.

B. The question which then falls for consideration is whether the Plaintiffs

have proved that the writing dated 20th April 1983 is the last Will and

Testament of the Testator and that it was duly executed and attested in

accordance with law. The Plaintiffs have, in order to prove due execution

of the said Will, examined PW-1, Mr. Francis Joseph Athaide, one of the

attesting witnesses to the Will. PW-1 has deposed to the execution of the

Will by the Testator in his Affidavit of Evidence. PW-1 has also, in answer

to Question No. 106 in cross-examination, specifically stated that the

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deceased had put his signature and initials on the Will and that both he, i.e.,

PW-1, and Mr. Owen D’Souza had attested the said Will as attesting

witnesses thereafter.

C. There is nothing in the cross-examination of PW-1 which, in my view,

would discredit the evidence of PW-1. Crucially, the Defendants did not

appear despite ample opportunity or pointed out to the Court why the

evidence of PW-1 ought not to be considered or even doubted. PW-1 was

an Advocate who was deposed to the factum of due execution of the said

Will by the Testator. Thus, there is no basis or reason for this Court to

doubt, in the facts of the present case, the veracity of the evidence of PW-1

in any manner. It is also not in dispute that the Will bears the signatures of

both attesting witnesses. In essence, the Plaintiffs’ reliance upon the

decisions of Meena Pradhan, Janki Bhoir, and Niranjan Joshi is

apposite, as these decisions specifically dispense with the second attesting

witness. Hence, given that PW-1 has led evidence to prove due execution

of the said Will, which evidence is unshaken, the need to have examined

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the second attesting witness, i.e., Mr. Owen D’Souza, did not arise. I am

therefore satisfied that the evidence of PW-1 has established the

requirements of Section 63(c) of the Succession Act.

D.Additionally, the said Will was also registered before the Sub-Registrar of

Assurances, Bandra (East), on 22nd April 1983. PW-1 has also deposed to

accompany the Testator to the office of the Sub-Registrar in connection

with the registration. Though it is also well settled that registration by itself

does not dispense with the statutory requirement of proving execution and

attestation, in the present case, the factum of registration of the said Will

when viewed in the context of the other facts, constitutes a circumstance

which is a factor which would support the validity of the said Will and its

making and due execution by the Testator.

E. The next question concerns the testamentary capacity of the Testator. The

Defendants have alleged that the Testator was suffering from ill health and

that he had suffered strokes affecting his faculties. However, PW-1, in his

Affidavits dated 12th November 1990 and 21st February 2015, stated that at

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the time of execution of the Will the Testator was of sound mind, memory

and understanding and that he executed the Will of his own free will and

pleasure. Equally, PW-2 has deposed that the Testator travelled to London

unaccompanied between October 1982 and January 1983. PW-2 has further

deposed regarding the dealings and correspondence between the Testator

and the Catholic Society, the City Survey Office, and other authorities.

More importantly, the evidence of PW-2 sets out and clarifies that the

Testator suffered a partial paralytic stroke in May 1984, i.e., more than a

year after the execution of the Will.

F. The cross-examination of PW-2 does not establish that the Testator

suffered a stroke in or about March 1983, as alleged in DW-1’s Affidavit of

Evidence in Lieu of Examination-in-Chief dated 5th October 2016. On the

contrary, PW-2 had expressly denied that proposition and clarified that

initially the stroke suffered by the Testator in May 1984 was mild and that

the Testator was rather able to speak and move around. The evidence

shows that the speech of the Testator was affected only towards the end of

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August or early September 1984, which is well after the execution of the

said Will, i.e., 20th April 1983. There is nothing in the Defendants'

evidence or in the cross-examination of PW-2 that unsettles the evidence

led by PW-2 that, when the Testator executed the said Will, the Testator

was in a sound and disposing state of mind. The subsequent illness of the

Testator in May 1984 cannot, without more, establish the mental incapacity

of the Testator more than a year earlier. There is no medical evidence

before me demonstrating that the Testator was of unsound mind or

otherwise incapable of understanding the nature and consequences of the

Will when it was executed.

G.Also, the evidence led by the Defendants does not establish that the Will

was the product of fraud, coercion, undue influence, or misrepresentation.

The mere fact that the Plaintiffs are beneficiaries under the Will does not,

by itself, establish undue influence. It is well settled there must be evidence

connecting the alleged fraud or undue influence with the making and

execution of the Will in question. In the present case, I find that the

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Defendants have not led any evidence to establish a case of fraud,

coercion, undue influence, or misrepresentation.

H.It is also a material and crucial fact that the Defendants, who were the

original Caveators, did not enter the witness box to substantiate the

allegations contained in their respective Caveats and Affidavits in Support.

The allegations concerning the Testator’s alleged alcoholism, his alleged

prior strokes and the alleged impairment of his faculties were matters

which, if relied upon to defeat the Will, required proof by cogent evidence.

The absence of such evidence from the original Caveators therefore speaks

volumes in the present case. Section 114(g) of the Evidence Act permits

this Court to draw an adverse inference against a party who withholds

evidence within its power to produce. The Plaintiffs’ reliance upon the

decision of Gopal Krishnaji Khetkar wherein it was held that “even if the

burden of proof does not lie on a party the Court may draw an adverse

inference if he withholds important documents in his possession which can

throw light on the facts on issue”, is squarely applicable to the facts of the

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present case. In particular, Defendant No. 2, Juanita, claimed to have

accompanied the Testator for physiotherapy and, on the Defendants’ own

case, had an opportunity to speak to the Testator’s condition but failed to

enter the witness box to do so.

I. Furthermore, DW-1’s evidence, on material aspects concerning the

Testator’s physical condition and the alleged conduct of the Plaintiffs, is

substantially based on inferences and assumptions. DW-1 has admitted that

his statement concerning the Plaintiffs’ expenditure on the Testator’s

comfort was only an assumption drawn from the absence of a wheelchair

or handrails at Patronage. DW-1 has also acknowledged that his belief that

the Testator had suffered some form of physical disability prior to his visit

on 25th January 1984 was based upon his limited personal observations.

DW-1 further admitted that he was not personally familiar with the

handwriting of his grandmother i.e., Mrs. Apolonia DeSouza, but is only

familiar with the Testator’s handwriting and signature from the evidence

presented in Court, had not been in regular contact with Original

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Defendant No. 1, i.e., Doric, since 1976, and was unaware of the

relationship between Doric and the Testator. The evidence of DW-1,

therefore, does not, in my view, provide a satisfactory evidentiary

foundation for the serious allegations in the Caveats that oppose the grant

of Probate to the Plaintiffs in respect of the said Will. In light of this

hearsay evidence, the Plaintiffs’ reliance upon the decision of Kalyan

Kumar Gogoi is apposite.

J. The Defendants have also, in my unhesitating view, failed to establish that

the said Will is either a bogus or fabricated document. There is no evidence

led by the Defendants to prove that the signatures of the Testator or the

attesting witnesses appearing on the said Will are forged. As already noted

in (C) above, PW-1 has identified the execution and attestation of the Will

and thereafter its registration. I must note that the Defendants have not

pleaded, produced, or even identified any Will subsequent to Exhibit P-26.

K.The circumstances surrounding Defendant No. 2’s relationship with the

Testator are relevant, as they demonstrate that a substantial estrangement

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existed between the Testator and Defendant No. 2, i.e., Juanita. Defendant

No. 2’s letter dated 6th December 1975 records that Defendant No. 2 had

had “absolutely no contact” with the Testator and refers to herself as the

sister who had “betrayed your love”. Also, the subsequent communication

from the Testator forwarding National Savings Certificates in 1977

demonstrates that the Testator continued to deal with Defendant No. 2

notwithstanding the earlier estrangement. While these circumstances do

not determine the validity of the Will, what is, in my view, material is that

they would rather support the case that the said Will was not an unnatural

Will only because it excluded the Original Defendants i.e., Doric and

Juanita, and more importantly, the testamentary dispositions contained in

the Will were not as a result of any coercion, undue influence or fraud.

L. I also find no substance in the contention that the proceedings for Probate

are liable to fail merely on the ground of delay. The Plaintiffs have

sufficiently explained the reasons for the delay. Also, the earlier Probate

Petition had been lodged within two years of the Testator’s death, and the

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present proceedings became necessary because the earlier papers were not

traceable. In any event, the right to seek Probate is not to be treated as

extinguished merely by the passage of time in the absence of

circumstances rendering the claim otherwise legally untenable.

Accordingly, the decision of Sanjay Sharma is applicable to demonstrate

that the right is a continuous right.

M.Also, in my view, the objection based on Section 141 of the Succession

Act cannot defeat the present Petition. Firstly, Plaintiff No. 1 is named as

an executor and is also a beneficiary under the Will. Secondly, Section 141

contemplates precisely such a situation and provides that where a legacy is

bequeathed to a person named as executor, such person shall not take the

legacy unless he proves the Will or otherwise manifests an intention to act

as executor. Thirdly, the filing and prosecution of the present proceedings

for Probate constitute conduct manifesting an intention to act as an

executor. Finally, the Defendants have not shown any statutory prohibition

against a person being both executor and beneficiary under a Will.

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Therefore, the reliance placed on the case of John Francis Anthony

Gonsalves, since it holds that there is no bar in law to an executor also

being a beneficiary under a Will.

N.On the aspect of whether the Original Defendants had a caveatable interest,

I find that this issue is now, in light of the findings rendered in (B) to (M)

above, largely academic. As held in Jehangir Tehmas Patel and Raj

Kumar Mittal, a caveator must establish a ground bearing upon the

admissibility of the Will to Probate. The evidence led by the Defendants

does not establish invalid execution, want of testamentary capacity, fraud,

coercion, undue influence, fabrication or any other circumstance rendering

the Will invalid. The allegations contained in the Caveats and Affidavits in

Support have remained unproved. Once PW-1, an attesting witness, gave

direct evidence proving execution and attestation, the burden shifted to the

Defendants to establish the circumstances upon which they relied to

impeach the Will. That burden has not been discharged.

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30.Accordingly, the Issues are answered as follows

1. For the reasons set out in (B) to (D) and (J) above, Issue No. 1 is

answered in the affirmative.

2. For the reasons set out in (E) to (F) above, Issue No. 2 is answered

in the affirmative.

3. For the reasons set out in (B) to (M) above, Issue No. 3 does not

survive for independent consideration in view of the findings on

Issues 1, 2, 4 and 5; in any event, it is answered in the affirmative in

favour of the Plaintiffs for the reasons set out in paragraph (N) above.

4. For the reasons set out in (A) and (G) to (J) above, Issue No. 4 is

answered in the negative.

5. For the reasons set out in (B) to (M) above, Issue No. 5 is answered

in the affirmative.

6. In view of the answers to Issues Nos. 1 to 5 and for the reasons set

out above, in terms of Issue No. 6, Probate of the Will dated 20th April

1983 shall be granted to the Plaintiffs

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31.Hence I pass the following Order:

ORDER

i. Testamentary Suit No. 39 of 1995 is decreed.

ii. The Prothonotary and Senior Master is directed to issue Probate of the

last Will and Testament dated 20th April 1983 of Mr. Hilary Joseph

DeSouza, in favour of the Plaintiffs, upon compliance with the requisite

formalities.

iii. The grant shall be issued expeditiously.

iv. There shall be no orders as to costs.

v. Pending Applications, if any, are accordingly disposed of.

vi. Drawn up decree is dispensed with.

[ARIF S. DOCTOR, J.]

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