HERBERT IRWIN PEREIRA Vs. RUDOLPH PEREIRA

JUDGEMENT

(1.) This chamber summons is taken out by the plaintiff basically under Order 18, Rule 17 of the Code of Civil Procedure (for short, CPC) seeking a leave to recall the attesting witness, Mr. Fredrick D'Souza to appear before the Commissioner and to have further evidence recorded. Admittedly, the said witness is the attesting witness to the last Will of Austin Nicholas Pereira @ Austin N. Pereira.

(2.) The petition for probate, as objected by the defendants, converted into the suit in question. Therefore, there is a dispute. So far as the plaintiff is concerned to prove the Will, the evidence of attesting witness is a must.

(3.) Though the contention that he is the only attesting witness available which respondents-defendants are not accepting, but fact remains that the plaintiff had examined the said witness earlier and want to recall the same to substantiate the issue and the burden so imposed upon him. Therefore, as the evidence of this attesting witness plays very eminent role. I am granting this opportunity again to the plaintiff.