LYDIA AGNES RODRIGUES Vs. JOSEPH ANTHONY DCUNHA

JUDGEMENT

(1.) By an order dated 22.9.2016 passed by this court a preliminary issue under Section 9A of the Code of Civil Procedure, 1908 was framed in view of the defendant raising an issue of limitation, as follows:

(2.) In view of the said preliminary issue framed by this court, both the parties through their respective counsel have addressed this court only on the said preliminary issue which is being dealt with by this court in the later part of the judgment. Some of the relevant facts fOr. the purpose of deciding the preliminary issue are as under.

(3.) It is the case of the defendants that one Andrew Satiro D'cunha was the absolute owner of the property known as "Villa Bemvinda" comprising of land and house consisting of ground plus first floOr. situated at St, Alexius Road, Bandra (West), Mumbai 400050. The Andres D'cunha had five children i.e. two sons and three daughters namely Joseph, Annie, Lydia, Edwin and Ivy. On 20.2.1971 the said Andrew D'Cunha executed a Will. It is the case of the defendants that under the said Will dated 20.2.1971 the said Andrew D'Cunha bequeathed the said immovable property known as Villa Bemvinda and the land absolutely to his son Joseph. The said son Joseph was appointed as the sole executOr. of the said Will on 20.2.1971. The said Andrew D'Cunha expired at Mumbai. Sometime in the year 1979 the said Joseph D'Cunha who was appointed as an executOr. under the said Will filed Probate Petition No.851/1979 in this Court inter alia praying fOr. grant of probate in respect of the Will dated 20.2.1971 executed by the said deceased Mr. Andres D'Cunha.