WALTER DSOUZA; ALBA DSOUZA Vs. ANITA DSOUZA

JUDGEMENT

(1.) The question that has arisen during the trial of this contested probate action is one that is likely to affect a very large number of similar contested testamentary matters. The question is this: in such matters, i.e., contested matters seeking probate or Letters of Administration with Will annexed, is it necessary that the evidence of the attesting witness be taken first, before the evidence of the Plaintiff (original Petitioner)

(2.) The context in which this question arises is this. The Plaintiff, Walter D'Souza, ("Walter") is the brother of the deceased testatrix, one Lydia D'Souza ("Lydia"), who died in Mumbai on 17th June 1995. Walter says Lydia left a will dated 2nd November 1983, one that he propounds in the petition. The caveatrix, Alba D'Souza ("Alba") is Lydia's sister-in-law, i.e., Lydia's brother's widow. Lydia's brother (Alba's husband), Victor D'Souza, died before Lydia. Alba passed away after she filed her caveat. Her three children, Anita, Valerian and Vitrus filed caveats (the two sons filing a joint caveat) and, adopting Alba's contentions, continued the opposition to the probate petition.

(3.) Issues were struck on 1st October 2010. The Plaintiff, Walter, filed an evidence affidavit dated 26th November 2010 and an accompanying compilation of documents. These were suitably marked in evidence or for identification on 27th October 2014. There is also on file the affidavit dated 26th November 2010 of one Vasant G. Farad, an attesting witness to the will in question. The matter was then ultimately placed for cross-examination of the Plaintiff in Court on 11th November 2014.