ROMEO ANACLETO D SOUZA INDIAN CHRISTIAN INHABITANT OF BOMBAY Vs. EDGAR HAVLOCK D SOUZA CANADIAN CITIZEN

JUDGEMENT

(1.) The plaintiff (original petitioner) had filed testamentary petition interalia praying for probate of the Will and Testament dated 26th May 1986 of the deceased Mrs Ermina Pinto D'Souza. Some of the relevant facts for the purpose of deciding this suit (original petition) which emerge from the record are as under :

(2.) Father of the plaintiff and the defendant acquired plot No.170171 from Salesette Coop. Hsg. Society Ltd., situated at 18, St. Andrews Road, Bandra (West), Mumbai 400 050 and a structure standing thereon which is known as 'Hermine Villa'. In the year 1956, defendant left India for employment and settled down in Canada. On 18th October 1975 father of the plaintiff and defendant died leaving behind his wife Mrs Ermina Pinto D'Souza, three sons and one daughter. On 26th May 1986, Mrs Ermina Pinto D'Souza (hereinafter referred to as 'the said deceased') executed a Will and Testament. On 10th January 1987 the said deceased expired leaving behind her three sons and one daughter. Plaintiff and defendant are two of the sons of the said deceased.

(3.) Sometime in the month of June 1988, plaintiff filed a probate petition in this Court which was numbered as 283 of 1991 interalia praying for probate of the alleged Will of the said deceased. On 6th November 1992, citation came to be issued in the said probate petition. On 22nd December 1994, plaintiff made an application for amendment of probate petition. Plaintiff discharged his advocate and started appearing in person. On 22nd December 1994, the plaintiff has alleged to have filed a consent affidavit alleged to have been signed by the defendant giving his no objection in favour of the plaintiff and waived citation of the petition. On 22nd December 1994, plaintiff filed consent affidavit of his sister Mrs Silvia Fernandes giving her no objection for grant of probate in favour of the plaintiff and according her consent to the same. By the said affidavit, the said Mrs Silvia Fernandes also waived service of citation of petition upon her.