Case Note & Summary
The suit was filed by the plaintiffs, who were great grandsons and other relatives of the deceased, seeking probate of an alleged Will dated 3rd January, 1975 of late Mr.Reginald Cajetan Lobo. The original plaintiff, Mr.John Damasceno Lobo, claimed to be the executor under the Will and had filed Testamentary Petition No.233 of 1988. The defendants, who were daughters of the deceased, contested the probate, alleging that the Will was not genuine and was not executed in accordance with law. The matter was converted into a testamentary suit. On the date of trial, the plaintiffs failed to appear, and their advocate reported no instructions. The court noted that the plaintiffs had not led any evidence to prove the execution and attestation of the Will. The court held that the burden of proof lay on the plaintiffs to prove the Will, and since they failed to discharge that burden, the suit was liable to be dismissed. The court dismissed the suit with costs, and the defendants were entitled to costs from the plaintiffs.
Headnote
A) Succession Law - Probate - Burden of Proof - Section 63 Indian Succession Act, 1925 - The propounder of a will must prove that the will was duly executed and attested as per law. In this case, the plaintiffs failed to lead any evidence and did not appear for trial, resulting in dismissal of the suit. (Paras 1-10) B) Civil Procedure - Dismissal for Non-Prosecution - Order 9 Rule 8 CPC - When the plaintiffs fail to appear and prosecute the suit, the court may dismiss the suit. Here, the plaintiffs' advocate reported no instructions, and the court dismissed the suit with costs. (Paras 11-15)
Issue of Consideration
Whether the plaintiffs have proved the due execution and attestation of the alleged Will dated 3rd January, 1975 of late Mr.Reginald Cajetan Lobo so as to be entitled to a grant of probate.
Final Decision
The suit is dismissed with costs. The defendants are entitled to costs from the plaintiffs.
Law Points
- Burden of proof on propounder of will
- Section 63 Indian Succession Act
- 1925
- Section 68 Indian Evidence Act
- 1872
- Attestation requirement
- Dismissal for non-prosecution
