Case Note & Summary
The plaintiff, Romeo Anacleto D'Souza, filed a testamentary petition seeking probate of the Will dated 26th May 1986 of his mother, Mrs Ermina Pinto D'Souza, who died on 10th January 1987. The defendant, Edgar Havlock D'Souza, a brother of the plaintiff and a Canadian citizen, filed a caveat opposing the grant. The plaintiff alleged that the deceased executed a Will bequeathing the property 'Hermine Villa' to him. The defendant contended that the Will was not duly executed and attested, and that the plaintiff had obtained probate earlier by fraud. The court framed issues regarding due execution, attestation, and the plaintiff's entitlement to probate. The plaintiff failed to appear on multiple dates and did not lead any evidence. The court held that the plaintiff did not discharge the onus to prove the Will's execution under Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872. Consequently, the suit was dismissed for non-prosecution and failure to prove the Will.
Headnote
A) Succession Law - Probate - Execution and Attestation of Will - Section 63 Indian Succession Act, 1925, Section 68 Indian Evidence Act, 1872 - Plaintiff failed to examine any attesting witness or produce evidence to prove due execution of Will - Court held that the onus to prove execution and attestation lies on the propounder, and failure to discharge that onus results in dismissal of probate petition (Paras 1-55).
B) Civil Procedure - Non-Prosecution - Dismissal for Default - Order 9 Rule 8 CPC - Plaintiff remained absent and failed to lead evidence despite opportunities - Court held that the suit is liable to be dismissed for non-prosecution as plaintiff did not appear to prosecute the matter (Paras 1-55).
Issue of Consideration
Whether the plaintiff has proved the due execution and attestation of the Will dated 26th May 1986 of the deceased Mrs Ermina Pinto D'Souza and is entitled to grant of probate.
Final Decision
The suit is dismissed for non-prosecution and for failure of the plaintiff to prove due execution and attestation of the Will. No order as to costs.
Law Points
- Probate
- Will
- Execution
- Attestation
- Section 63 Indian Succession Act
- 1925
- Section 68 Indian Evidence Act
- 1872
- Onus of Proof
- Non-Prosecution
Case Details
2013 LawText (BOM) (12) 49
Testamentary Suit No.41 of 2006 in Testamentary Petition No.283 of 1991
Mr Shailesh Shah, senior Advocate i/b Nitin Raut for the Petitioner/plaintiff; Mr B. Patel i/b Ms Severine Valado for Respondent/defendant
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Nature of Litigation
Testamentary suit for grant of probate of a Will.
Remedy Sought
Plaintiff sought probate of the Will dated 26th May 1986 of Mrs Ermina Pinto D'Souza.
Filing Reason
Plaintiff claimed to be the executor under the Will and sought probate; defendant filed caveat opposing grant.
Previous Decisions
Probate was granted ex parte on 28th December 1994, but later the suit was filed after caveat.
Issues
Whether the Will dated 26th May 1986 was duly executed and attested as required by law?
Whether the plaintiff is entitled to grant of probate of the said Will?
Whether the suit should be dismissed for non-prosecution?
Submissions/Arguments
Plaintiff argued that the Will was duly executed and attested, and that he is entitled to probate.
Defendant contended that the Will was not duly executed and attested, and that the plaintiff had obtained probate by fraud.
Ratio Decidendi
The onus to prove due execution and attestation of a Will lies on the propounder. Failure to examine attesting witnesses or produce any evidence leads to dismissal of the probate petition. Additionally, if the plaintiff fails to appear and prosecute the suit, it is liable to be dismissed for non-prosecution.
Judgment Excerpts
The plaintiff has not examined any attesting witness to the Will nor has he produced any evidence to prove the due execution and attestation of the Will.
The plaintiff has remained absent and has not prosecuted the suit. Hence, the suit is dismissed for non-prosecution.
Procedural History
Plaintiff filed Testamentary Petition No.283 of 1991 in June 1988 seeking probate. Citation issued on 6th November 1992. Plaintiff amended petition on 22nd December 1994. Probate granted ex parte on 28th December 1994. Defendant filed caveat, leading to Testamentary Suit No.41 of 2006. Issues framed on 8th October 2013. Plaintiff failed to appear on 23rd October 2013 and subsequent dates. Judgment reserved on 23rd October 2013 and pronounced on 20th December 2013.
Acts & Sections
- Indian Succession Act, 1925: Section 63
- Indian Evidence Act, 1872: Section 68
- Code of Civil Procedure, 1908 (CPC): Order 9 Rule 8
