JOHN FRANCIS ANTHONY GONSALVES INDIAN CHRISTIAN INHABITANT OF BOMBAY Vs. AGNES MARY CONCEPTION REBELLO INDIAN CHRISTIAN INHABITANT

JUDGEMENT

(1.) The original plaintiffs/petitioners have by this appeal challenging the dismissal of their petition no.519 of 1990 for probate of the will of their deceased father by the learned Single Judge as per the judgment dated 27th March, 2001.

(2.) Admittedly, the petitioners are sons and the respondent/defendant is a married daughter of the deceased John Frederick Gonsalves, who died in Mumbai on 3rd January, 1983. Besides, the petitioners and respondent, the deceased John had also other sons and daughters. According to the petitioners, the deceased John executed the will and testament on 1-4-1979 whereby the petitioners are appointed as executors of his will. The petition for probate was filed in the year 1990. The respondent denied that any such will was executed by the deceased father and that the petitioners were appointed as executors. She also contended that even though the alleged will was executed on 1-4-1979, no steps were taken for getting it probated till the year 1990. She also contended that as late as March, 1990 all the legal heirs of the deceased including petitioners had represented to the Bank of India that the deceased John Frederick Gonsalves had died without leaving a will. Thus, none of the legal heirs including the petitioners had acted upon any such will till March, 1990. According to the respondent, the alleged will is bogus, concocted and invented only to deny the other heirs and legal representatives of the deceased their share in the property of the deceased, who had died intestate.

(3.) The learned Single Judge framed certain issues and on behalf of the petitioners, Owen John D'Souza attesting witness was examined as P.W.1 and the petitioner John Francis Anthony Gonsalves as P.W.2. While the respondent examined herself as D.W.1. After hearing the evidence and the admissions given by the respondent as well as her counsel, the learned Single Judge held that the plaintiffs had proved that the will dated 1-4-1979 is the last will of the deceased John F. Gonsalves and also that he was in sound and disposing state of mind while executing the will. Having given these findings to Issue Nos.1 and 2, the learned Single Judge in response to Issue No.4 held that the plaintiffs had failed to prove that they had manifested their intention to act as executors and in the result, it was held that they are not entitled to grant of a probate. In the result, the petition came to be dismissed.