Full Judgment Text
Clement Soares v Juliana Farias & Anr
TS12-06+_SOARES-V-FARIAS.DOC
This Order is modified/corrected by Speaking to Minutes Order dated 15/12/2016
ATUL
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
TESTAMENTARY SUIT NO. 12 OF 2006
IN
TESTAMENTARY PETITION NO. 623 OF 2005
C LEMENT S OARES ,
of Mumbai Indian Christian Inhabitant, the
sole Executor of the Will of the deceased
above named residing at Aldona House, Flat
No. 3, 74, Rebello Road, St. Sebastian Colony,
Bandra (West), Mumbai 400 050 …Plaintiff
~ versus ~
1. Juliana Farias,
2. Fr Leopold Soares,
(Through his C.A. Mrs. Juliana Farias),
Indian Christians, residing at
1) St. Xaviers High School, Post
Box No. 21, Nehru Nagar, Nashik
Road 422 101, Maharashtra
and
2) 5, Sadashiv Smruti, 4th Road,
TPS-III, Santacruz (East),
Mumbai 400 055 ... Defendants
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WITH
TESTAMENTARY SUIT NO. 19 OF 2008
IN
TESTAMENTARY PETITION NO. 217 OF 2007
C LEMENT S OARES ,
of Mumbai Indian Christian Inhabitant, the
sole Executor of the Will of the deceased
above named residing at Aldona House, Flat
No. 3, 74, Rebello Road, St. Sebastian Colony,
Bandra (West), Mumbai 400 050 …Plaintiff
~ versus ~
1. Juliana Farias,
2. Fr Leopold Soares,
(Through his C.A. Mrs. Juliana Farias),
Indian Christians, residing at
1) St. Xaviers High School, Post
Box No. 21, Nehru Nagar, Nashik
Road 422 101, Maharashtra
and
2) 5, Sadashiv Smruti, 4th Road,
TPS-III, Santacruz (East),
Mumbai 400 055 ... Defendants
A PPEARANCES
FOR THE PLAINTIFF Mr. Shailesh Shah, Senior Advocate , i/b
M/s. S.K. Srivastav & Co.
FOR THE DEFENDANT Mr. Raphael D’Souza .
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CORAM: G.S. PATEL, J
DATED: 23rd November 2016
ORAL JUDGEMENT:
JUDGEMENT STRUCTURE
A. INTRODUCTION ..................................................................4
B. FACTUAL BACKGROUND...................................................4
C. THE TWO WILLS IN QUESTION........................................6
D. THE CAVEATS.......................................................................7
E. ISSUES ..................................................................................9
I. ISSUES IN TESTAMENTARY
SUIT NO. 12 OF 2006 .....................................................9
II. ISSUES IN TESTAMENTARY
SUIT NO. 19 OF 2008 ....................................................11
F. ORAL AND DOCUMENTARY EVIDENCE ....................... 12
G. RE: ISSUE NO. 1 ................................................................... 13
H. RE: REMAINING ISSUES....................................................20
I. CONCLUSIONS & ORDER..................................................38
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A. INTRODUCTION
1. This judgement disposes of both Testamentary Suits. They
were heard together. Although Affidavits in lieu of Examination-in-
Chief were filed separately in each, and the two cases deal with
separate Wills, the cross-examination was taken together, and the
witnesses were common to both. Testamentary Suit No. 12 of 2006
seeks probate to the last Will and Testament dated 22nd January
1999 of one Eliza Anthony Soares (“ Eliza ”). Testamentary Suit No.
19 of 2008 seeks probate to the last Will and Testament also dated
22nd January 1999 of Eliza’s husband, Anthony Xavier Soares
(“ Anthony ”). Both Wills are registered. The only ground of
opposition to both Wills is that the Plaintiff, one of the children of
Eliza and Anthony, and also the sole Executor (and the largest
beneficiary) in each Will, procured the Wills by exercising undue
influence on his parents. I heard Mr. Shah for the Plaintiff and Mr.
D’Souza for the Defendants at some length. After considering the
evidence and the material on record, I have decreed both suits. My
reasons follow.
B. FACTUAL BACKGROUND
2. Anthony and Eliza Soares had four children, three sons and a
daughter. The daughter, Juliana, was the third child. The two elder
sons were Patrick and Leopold (the 1st Defendant). The youngest
child was their son Clement, the Plaintiff and the sole Executor of
both Wills.
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3. Anthony and Eliza Soares made their home in what was then
the quiet and leafy suburb of Bandra. They owned a plot at 74,
Rebello Road, St. Sebastian Colony in Bandra, and on this stood a
structure called Aldona House. This appears to have had more than
one floor, and separate apartments on each. At least one of these
was tenanted. Patrick lived alone in one apartment; he was
unmarried. Clement and his wife lived with Anthony and Eliza in
their apartment. Juliana moved out of Aldona House after her
marriage. Leopold took holy vows in 1967, becoming a Jesuit, and
the conditions of his order required him to move out of Aldona
House to quarters provided by the Society of Jesus. Anthony and
Eliza also owned property in Aldona, Bardez, Goa.
4. By all accounts, the family was reasonably well off. Anthony
had carefully husbanded his resources and assets. Eliza was
previously a teacher. By 1999, Anthony led a life of retirement. Eliza
continued to work, giving private tuitions in mathematics and
science to 10th standard students, something she continued doing
for the next several years till 2003.
5. On 22nd January 1999, both Anthony and Eliza made their
Wills. Both Wills were registered later that very day. At that time,
Eliza was about 76 years old, but seems to have been in good health.
There is no evidence of the kind of debilitating physical or mental
impairment the Defendants claim. Anthony was 85 years old then,
and he, too, seems to have been active and alert. Both Anthony and
Eliza lived for several years after they made their Wills: Eliza died on
11th March 2005 and Anthony died on 1st December 2006.
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6. On 6th August 2005, Clement filed Testamentary Petition
No. 623 of 2005 for probate to Eliza’s Will. Leopold and Juliana
opposed, entering a joint caveat and Affidavit in Support dated 3rd
1
February 2006. The suit was renumbered as Testamentary Suit No.
12 of 2006. After Anthony died, Clement filed for probate to
Anthony’s Will on 17th February 2007. Again, Leopold and Juliana
opposed by filing a common caveat and Affidavit in Support dated
2
21st January 2008, and this Petition was renumbered as
Testamentary Suit No. 19 of 2008.
C. THE TWO WILLS IN QUESTION
3
7. I will turn first to the dispositions in Eliza’s Will. This is a
typewritten Will. Eliza appointed Clement as the sole Executor of
the Will. She said that she had a 50% share in Plot No. 74 and in
Aldona House. The remaining 50% belonged to Anthony. She also
said she held an interest in House No. 189 at Aldona, Bardez, Goa
including a land and cottage and, in addition, had savings bank
accounts, fixed deposits and other investments and some jewellery.
She bequeathed her interest in Aldona House to Clement. She noted
that Patrick, her eldest son, lived in a portion of this property. The
bequest to Clement was subject to Patrick’s right of residence, a life
interest. The Goa property was left to Patrick and Clement in equal
shares. As regards the movables, they were bequeathed to Anthony,
and, failing him, were to be divided between her children such that
1 Vol. A, p. 38.
2 Vol. A, p. 83.
3 Vol. A, pp. 11–14.
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Patrick and Clement would each take 30% and Leopold and Juliana
20% each. Eliza left all her jewellery to Juliana. The Will was
witnessed by one Dr. Mark D’Souza, a physician and a relative of
the family, and by one Mr. Hermiterio Xavier Mathias Fernandes.
4
8. Anthony’s Will, made on the same date, contained
substantially the same provisions. He too appointed Clement as his
sole Executor. He also bequeaths his share in the Aldona House to
Clement subject to Patrick’s life interest of residence in a portion of
that house. Anthony left his share in the Goa property to Patrick and
Clement in equal shares. Anthony had no jewellery, but did have
investments in bank deposits and these were divided between his
four children in the same proportions, with Patrick and Clement
each taking 30% and the remaining 40% being divided equally
between Leopold and Juliana.
D. THE CAVEATS
9. The Caveats in both matters are also largely common. In
opposing the grant of probate to Eliza’s Will, Juliana and Leopold
say that Clement and his wife obtained Eliza’s Will by undue
influence, misrepresentation and coercion. They also contend that
that Eliza asked Leopold to prepare another Will but that this was
never executed. In opposition to Anthony’s Will, Leopold and
Juliana take very nearly the same objections.
4 Vol. A, pp. 55-58.
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10. There are, however, certain statements in both Caveats to
which I must make specific reference. The allegation in paragraph 3
of the Affidavit in Support of the Caveat in the Petition for probate
to Eliza’s Will says that it was Eliza’s desire that all four children
should have equal shares in the family house. The Defendants say
that Clement had lost heavily during the Harshad Mehta scam and
used his father’s savings to pay off his debts; that Eliza was ill and
was treated for multiple sicknesses such as diabetes, high blood
pressure, heart ailments and cerebral stroke, and was treated
frequently at both Nanavati Hospital and Lilavati Hospital. It is in
this background it is said in paragraph 5 that Clement took undue
5
advantage of Eliza’s illness and got her to execute the Will.
According to Juliana, she was told by Leopold that Eliza told him
(Leopold) that she (Eliza) wanted to make another Will and that she
had signed the present one under coercion from Clement. Eliza
alleges that Leopold then got a Will prepared and gave it to Clement
for execution. This, too, Juliana knows only from Leopold. This is of
some consequence because in her Evidence Affidavit Juliana later
says that Leopold told her this fresh Will was given not to Clement
but to Eliza herself. There is, however, a curious statement made in
paragraph 5 of this Caveat:
“5. I say that as to her jewellery, I being the only
daughter she had bequeathed the same to me.”
I will consider the effect of this statement and whether or not it
constitutes an admission when I turn to an analysis of the matter.
5 Vol. A, p. 40.
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11. In the Caveat opposing the grant of probate to Anthony’s
Will, there is again a repetition of the same allegations. Here it is
said that Anthony was seriously ill having been treated for diabetes,
high blood pressure and chest problems at Raheja Hospital and
Lilavati Hospital. He was seriously ill and immobile to a great
extent. It is not said clearly as to for what period of time he was in
this condition, even if this is true. Paragraph 6 of this Caveat
contains more or less the same allegations as paragraph 5 of the
allegations made in the previous Affidavit. Throughout it is alleged
that the father being old and infirm was not in a position to
understand what he was doing.
E. ISSUES
6
12. On 17th October 2008, issues were settled in both matters.
The two sets of issues that were settled on 17th October 2008 and
my findings are listed below against each.
I. ISSUES IN TESTAMENTARY SUIT NO. 12 OF 2006
Sr. No. Issue Findings
Whether the Plaintiff proves that the Will
1.
dated 22nd January 1999 annexed to the
Yes
Petition is executed by the deceased Eliza
Soares?
6 Vol. A, p. 44 for the issues in Testamentary Suit No. 12 of 2006 and p.
89 for the issues in Testamentary Suit No. 19 of 2008.
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Sr. No. Issue Findings
2. Whether the Defendants prove that both
the father and mother of the Plaintiff and
Defendants were under the influence,
No
control and management of the Plaintiff
and his wife as alleged in paragraph 4 of
the Affidavit in Support of the Caveat?
Whether the Defendants prove that the
3.
Plaintiff by misrepresentation, coercion or
undue influence got the Will/Testament
No
executed by the deceased and got it
registered as alleged in paragraph 5 of
the Affidavit in Support of the Caveat?
Whether the Defendants prove that the
4.
deceased has instructed the Defendant
No. 1 to prepare another Will and the same
was given by the 1st Defendant to the
No
Plaintiff to get it executed and registered
as alleged in paragraph 5 of the Affidavit
in Support of the Caveat?
Whether the Defendants prove that the
5.
deceased had bequeathed her estate to
her husband first and then to her four
No
children in equal shares as alleged in
paragraph 6 of the Affidavit in Support of
the Caveat?
6. What orders? Suit decreed
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II. ISSUES IN TESTAMENTARY SUIT NO. 19 OF 2008
Sr. No. Issues Findings
Whether the Plaintiff proves that the Will
1.
dated 22nd January 1999 annexed to the
Yes
Petition is executed by the deceased
Anthony Xavier Soares?
Whether the Defendants prove that both
2.
the father and mother of the Plaintiff and
Defendants were under the influence,
No
control and management of the Plaintiff
and his wife as alleged in paragraph 4 of
the Affidavit in Support of the Caveat?
3. Whether the Defendants prove that the
Plaintiff by misrepresentation, coercion or
undue influence got the Will/Testament
No
executed by the deceased and got it
registered as alleged in paragraph 5 of
the Affidavit in Support of the Caveat?
Whether the Defendants prove that the
4.
deceased has instructed the Defendant
No. 1 to prepare another Will and the same
was given by the 1st Defendant to the
No
Plaintiff to get it executed and registered
as alleged in paragraph 6 of the Affidavit
in Support of the Caveat?
Whether the Defendants prove that the
5.
No
deceased had a desire to bequeath his
estate equally to all his 4 children as
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Sr. No. Issues Findings
alleged in paragraph 8 of the Affidavit in
Support of the Caveat?
What orders?
6. Suit Decreed
F. ORAL AND DOCUMENTARY EVIDENCE
13. The Plaintiff led the evidence of both attesting witnesses and
then a senior priest or functionary from the Society of Jesus. There
is an order of 12th December 2008 that gave the Plaintiffs the liberty
to lead evidence in rebuttal and this is how the evidence of Fr
Vernon D’Cunha of the Society of Jesus was led as PW3. The
Plaintiff himself did not give evidence.
14. The Defendants led the evidence of Juliana who was cross-
examined. Leopold began giving evidence but then did not present
himself for completed cross-examination. I will consider the effect
of this as well.
15. The documents in question are not many. In fact the principal
document is the record of certain proceedings in the Court of Small
Causes against a third party, one of the tenants or occupants of
Aldona House.
16. In both cases, the burden of proving issue No. 1 is on the
Plaintiff while the burden of proving other issues is on the
Defendant. I will, therefore, discuss the first issue in both cases
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together, i.e. , Whether the Plaintiff proves the due execution of the
two Wills?
G. RE: ISSUE NO. 1
17. PW1 was the first attesting witness, Mr. Hermitero
7
Fernandes. He was about 78 years old at the time when he filed his
Evidence Affidavits dated 12th June 2008. He deposed that he knew
Eliza and Anthony, and that on 22nd January 1999 at about 9.00
a.m., he was present along with the other attesting witness, Dr.
Mark D’Souza, at Aldona House, Flat No. 1. At that time, PW1 says
he saw both deceased sign their Wills and inscribe their signatures at
the foot of each of the pages of the Will. The deceased also put the
date just above the signature. Thereafter, PW1 and the second
attesting witness signed the Will as witnesses. He then deposes that
in the afternoon of that very day, 22nd January 1999, the Will was
registered at the Office of the Sub Registrar of Assurances, Andheri,
Mumbai Suburban at the Bandra Office. At that time, both the
deceased Testator and the Testatrix and both witnesses were
present before the Sub Registrar.
18. PW1 was cross-examined partly in Court. I find from the
cross-examination, which, as I have noted is common to both cases,
that an attempt was made to suggest that there was only one
8
document that was signed. This is no part of the case pleaded in the
7 Examination-in-chief, Vol. B, pp. 100–102 and 104–106.
8 Vol. B, p. 116.
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Caveat. This attempt did not succeed because the witness clearly
9
said that both Wills were signed on that date. At this stage, I must
refer to a suggestion put to PW1 regarding the persons present at the
time of execution of the two Wills.
“ Is it correct that on 22nd January 1999 at
Q.
9.00 a.m., you along with Eliza and Dr.
Marks were the only persons who were
present?
Anthony was also present.
Ans.
Can you tell how long it took for
Q.
completion of the work of execution of the
Will?
I cannot remember.”
Ans.
The suggestion clearly, therefore, is that the Plaintiff was not
present at the time of the execution of the Wills. Apart from the fact
that this has a material bearing on the case of undue influence and
about that case not being proved, this suggestion does not in any
way damage the Plaintiff’s case about the due execution of the Will.
19. What is important however is the manner in which the
question is put. The witness was not asked who was present, or to
name those present. A specific case was put to him asking him to
confirm that the Plaintiff was in fact present at that time. The
framing and phrasing of the question clearly suggest, therefore, that
the Defendants knew for a fact that the Plaintiff was present at that
9 Vol. B, p. 117.
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time. When a question is put like this, the party cross-examining
then takes on himself or herself the burden of proving the
correctness of the suggestion. There is an increasing tendency to
place questions like this — “I put it to you ... ” or “is it not correct
...” — without heed to the consequences. This is an error, and there
is no legal basis for the supposition that these ‘suggestions’ are
innocuous or their consequences irrelevant. When a party ‘puts’ a
positive case to a witness, makes a positive suggestion or asks if a
particular thing is not correct, then the party cross-examining takes
on himself or herself the onus of proving the correctness of the
suggestion. If the witness agrees, the cross-examiner need do
nothing further. But if the witness refutes the suggestion, then the
cross-examiner must prove the correctness of it; and his failure to do
so is again not without consequence.
20. Consider for a moment the foregoing question, which I will
reproduce again on its own:
Q. Is it correct that on 22nd January 1999 at 9.00
a.m., you along with Eliza and Dr. Marks were the
only persons who were present?
The suggestion is that the Defendants know and are in a position to
prove that Eliza, Fernandes and Dr. Marks were the only ones
present at 9:00 am, and that Anthony was not present; i.e. , that
Anthony was elsewhere. The Defendants do nothing further in this
regard, and therefore the conclusion against the Defendants are
inescapable: either that they kept back evidence specially within
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their knowledge, or that the suggestion is false. This would not have
been the consequence had the question been differently phrased:
Q. On 22nd January 1999 at 9.00 a.m., were you
along with Eliza and Dr. Marks the only persons who
were present?
Here, the cross-examiner and the Defendants would have taken no
onus on themselves. The question is merely a query to the witness,
who might say yes or might say no. There would have been no
impact on the Defendant’s had the question been placed in this
fashion. The result is that the Defendants are, at the very least,
unable to prove their assertion that Anthony was not present at 9:00
am on 22nd January 1999; the evidence from the Plaintiffs is not just
unshaken; it is reaffirmed.
21. A further question was then put to PW1 to the effect that it
was the Plaintiff, Clement, who took Fernandes, Eliza and Anthony
to the sub-Registrar’s Office. Though PW1 answered in the
10
negative, this question is directly contrary to the previous
suggestion of Anthony’s absence, and the discrepancy is never
explained. Again, this question suffers from the same vice: it
suggests that the Defendants are in a position to establish and prove
Clement’s presence at the sub-Registrar’s office. No attempt is
made in that direction. Fernandes then added that he did not
recollect the name of the person who took himself, Eliza and
Anthony to the Registrar’s Office and whether PW2, Dr Mark
D’Souza, accompanied them. He, however, denied the suggestion
10 Vol. B, p. 121.
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that PW2 was not present at the time when execution of the Wills
was admitted. This is a third instance of the same form of
unsubstantiated and unproved suggestion being put to the witness.
Fernandes added that the sub-Registrar read the Wills to Anthony
11
and Eliza.
22. I turn now to the evidence of PW2, Dr. Mark D’Souza, a
12
practising physician. His examination-in-chief is broadly consistent
with that of PW1. It is the cross-examination, however, that is of
13
interest. In this cross-examination, Dr. Mark D’Souza deposes that
he has an independent practice and is attached to two Hospitals, the
Holy Spirit Hospital, Andheri and the Holy Family Hospital at
Bandra. He also says that Eliza was his father’s sister, his maternal
aunt, and that he lived close by, no more than three or four kms.
14
from the Soares’s residence. He then says that Eliza visited his
clinic and personally asked him to come to her house on 22nd
15
January 1999 to witness the execution of her Will. As to her state of
health, he specifically deposes that Eliza was able at that time to
16
walk about three kms. to visit him at his residence. He goes on to
say that at that time she was still very much active and gave tuitions
to 10th standard students, while Anthony, though older, was quite
assertive even at that age. The cross-examination is brief and
nothing further is elicited in it by the Defendants.
11 Vol. B, p. 121.
12 Vol. B, pp. 136–138 and 140–142.
13 Vol. B, pp. 144-149 .
14 Vol. B, p. 145 .
15 Vol. B, p. 146 .
16 Vol. B, pp. 147–148.
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23. Then there is the question of the Defendants’ evidence, but
this does not touch upon the due execution of the Will although
attempts are made to suggest that both the Testator and Testatrix
lacked the necessary testamentary capacity. The evidence of
Leopold Soares is that Eliza was seriously ill and was treated for
multiple sicknesses such as diabetes, high blood pressure, heart
ailments and was medically treated both at private nursing homes
and at Nanavati Hospital and Lilavati Hospital since 1984. He says
that Anthony was old and immobile to a great extent since 1996 and
was incapable of conducting himself of his own free will. This is of
course followed by an allegation of undue influence, but I will turn
to that presently. As to the actual physical and mental state, there is
no direct evidence in the examination-in-chief. The evidence of
17
PW2 is too much the same effect. However, in her examination-in-
chief, PW2 Juliana makes a set of very peculiar statements. The first
18
of these is to be found in paragraph 15 of her examination-in-chief.
“15.
I say that my father and mother were
financially self sufficient throughout their lives
with income including that from rents from three
flats, pensions, interest from bank investments,
savings and private tuitions my mother gave to
The papers and documents
school children.
including their Income Tax Returns, and Bank
Records which are in possession of Mr. Clement
Soares, the Plaintiff/Petitioner herein and can be
produced when required with the directions of this
Hon’ble Court.”
17 Vol. B, pp. 170-174 .
18 Vol. B, p. 173 .
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( Emphasis added )
24. This itself is evidence of mental capacity. If there was any
doubt about this, it is put to rest by the contents of paragraph 19 of
19
that examination-in-chief.
“19. I say that it is pertinent to note that in each of
the respective Wills of my mother and father,
identical statements of joint equal ownership of the
property at Goa have been made. I further say, that
at the purported time the said Wills were signed,
i.e., 22 January 1999, the said Goa property was in
possession of a third party and a twenty year old
litigation for possession in the Goa Court, was in
progress.
My father and mother, being of sound
mind, when they allegedly made their respective
Wills, were definitely aware of the fact that the
.
Goa property was owned exclusively by my father
Therefore, I say that the false statement in my
parent’s Wills that she owned 50% of the Goa
property was at the sold instance of the
Plaintiff/Petitioner, who in the grip of full confidence
of the success of his coercive activity got careless.”
( Emphasis added )
25. This is the clearest possible admission of soundness of mind
and testamentary capacity of both Eliza and Anthony. It is hardly
possible to suggest that the two deceased were of sound mind in
19 Vol. B, pp. 173-174 .
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respect of the disposition of the Goa property but were of unsound
mind for the rest. Indeed, the statement, never explained in
paragraph 19 is that they were both of sound mind when they
20
allegedly made their respective Wills.
26. In view of this state of the evidence, it will have to be held
that issue No. 1 in both cases is to be answered in the affirmative.
The due execution of the two Wills is thus proved.
H. RE: REMAINING ISSUES
27. The remaining issues can all be dealt with together. They
cover undue influence, misrepresentation, coercion, whether there
was a second Will prepared, and whether Eliza and Anthony desired
to bequeath their estate equally to all four children. The burden of
proving all these issues was always on the Defendants. That burden
has not, as we shall see, been discharged. I will note here that there
is some degree of overlap between the previous issues and this
bunch because of the way Mr. Raphael D’Souza has placed his case,
particularly his submission that the undue influence alleged is tied
to the Defendants’ case that Eliza and Anthony suffered from such
ailments as left them incapable of dispositive understanding.
28. To appreciate the evidence, some dates are material. These
are undisputed. In 1967, Leopold, DW1, took holy orders or vows
20 Bharat Singh & Anr v Bhagirathi , AIR 1966 SC 405; Ramji Dayawala &
Sons v Invest Import , (1981) 1 SCC 80.
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and left the family home. He went to reside in quarters allotted to
him by the Society of Jesus. In 1980, DW2, Juliana married and left
the house. In February 1999, Clement and his wife left Mumbai and
went to Muscat. Patrick stayed on at Aldona House in Mumbai.
Patrick has, however, never challenged either of the Wills. Clement
and his wife remained in Muscat for the next five years till 2004,
when they returned. They then resumed residing in the same house
as their parents and they say they looked after them.
29. The substance of the case by the Defendants is that Clement
had lost a lot of money in the Harshad Mehta scam and that he was
drawing on his parents’ resources. How this can be said to be
evidence of ‘undue influence’ is never fully or properly explained. In
any case, much of this, at least in the hands of the Defendants, is
hearsay and inadmissible evidence. Paragraph 5 of Leopold’s
21
Affidavit of Evidence is that he had come home in December 1999
when Eliza confided to him that Clement had forced her and
Anthony to sign two Wills without giving them an opportunity to
read them. He says that Eliza asked him to help her and Anthony
make Wills afresh. He claims he took his mother to an Advocate,
Mr. Johnson John, in Bandra and that in his presence Eliza
instructed Mr. Johnson John to prepare two Wills, one for herself
and one for Anthony, ensuring that at the demise of either of them,
the surviving parent would inherit the entire movable and
immovable properties, and that on the surviving spouse’s demise,
all the estate would be divided between the four children equally. He
claims that he then collected these fresh Wills and gave them to his
21 Vol. B, p. 161 .
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mother. This is in direct contradiction to what Juliana says. Her
evidence is also hearsay because she only reports what Leopold told
her, so she cannot attest to the correctness of what she was told, but
only that she heard a particular thing. She says that she was told that
the Wills were given not to Eliza but to Clement. In any case, no
attempt was made by the Defendants to summon Advocate Mr.
Johnson John or to have copies of these drafts produced.
30. Leopold himself never tendered himself fully for cross-
22
examination. His cross-examination was recorded only in part. In
this, he admits that he joined the Society of Jesus in 1967 and since
then did not stay permanently at the family seat at Aldona House,
Bandra. Between 1997 and 2007, he was at Nasik. It is, therefore,
not explained how he came to be in Mumbai in December 1999 to
have any alleged conversation with Eliza on making of a fresh Will.
23
31. Paragraph 2 of his cross-examination is most interesting. In
this he denies a suggestion that all household expenses were being
incurred by the Plaintiff. Even the medical expenses, he says, were
incurred by the parents themselves. In short, he maintains that his
parents were managing their own finances and were financially
independent. This is directly contradictory to what is stated in
paragraph 4 of his examination-in-chief where he alleges that his
parents were entirely at the mercy of the Plaintiff and were
compelled to obey him without question.
22 Vol. B, pp. 165-168 .
23 Vol. B, p. 166 .
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32. From the perspective of appreciation of evidence, this is a
truly piquant situation. The Plaintiff, cross-examining Leopold, put
the suggestion that it was Clement (the Plaintiff) who supported the
parents Eliza and Anthony, bearing their household expenses etc.
This was placed presumably to show a special affinity and a
particular closeness between the parents and Clement; but the
cross-examination strategy was not without risk: if the witness
agreed, this might in itself have been one nugget of evidence on the
question of undue influence, suggestive of a dependency of the
parents on Clement. As it happens, the Plaintiff’s failure to show
dependency works to his advantage by dislodging any plausibility of
undue influence. The parents were, by Leopold’s own telling of it,
self-reliant and not dependent on Clement at all.
33. It seems that the matter was adjourned for settlement on that
date and Leopold never returned to the witness box. There is an
24
order of 9th December 2009 in which the Court noted that the
Defendants claimed that Leopold was unwell. The Court left it to
the Defendants to resolve the matter and to decide for themselves
whether Leopold should return to the box, and, if not, what the
consequences might be. As it transpires, Leopold never returned to
the witness box.
34. I think it is safe, therefore, to say that if a witness does not
tender himself for cross-examination or absents himself for the
completion of the cross-examination, then so much of the evidence
as is against the other side must necessarily be ignored and, equally,
24 Per SC Dharmadhikari J.
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that any admissions in that testimony may be used against the party
calling that witness. This is how it must be in the present case too.
Leopold’s admission, therefore, that his parents were financially
independent is one that must be accepted. His allegation that they
were at the mercy of the Plaintiff must be rejected simply because
the Plaintiffs had no opportunity to fully test the assertions made by
Leopold in his cross-examination. Mr. Shah for the Plaintiffs points
out that there is some evidence to suggest that even during this
time, far from being unwell, Leopold was actually in good health and
25
serving his duties in Goa. If that be so, that makes matter even
worse.
26
35. This takes us to Juliana’s evidence. Her Evidence Affidavit
is essentially on the basis that her parents desired to leave the
property to all four children. In evidence of this, she cites certain
proceedings against another tenant in Aldona House where on a
ground of bona fide requirement it was stated that Anthony required
the premises for Juliana’s two sons. While this pleading is on record,
by itself it does not invalidate a testamentary disposition. It is an
admitted position that this so-called expression of intent never
found voice in a fresh testamentary instrument. Juliana accepts in
her examination-in-chief that her parents were financially self
27
sufficient, and that Clement and his wife lived abroad for a
28
considerable period of time.
25 Questions 238–239, p. 238.
26 Vol. B, pp. 170–174 .
27 Vol. B, para 15, p. 173.
28 Vol. B, para 14, p. 173.
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36. She seems to claim that the undue influence arises from her
parents’ lack of good health. In paragraph 16, she says that her
mother was unwell since 1984. It is to be noted that the Will itself is
of 1999, a good 15 years later. To accept this submission, Juliana
would, therefore, have to show that for that entire 15-year period
Eliza was in such poor health that she could not know what she was
doing. However, as I have noted, in paragraph 19 of her evidence she
accepts her parents’ soundness of mind. There is no dispute that
Eliza was giving tuitions even at the time when she made the Will
and that these tuitions were being given to 10th standard students
and were in the subject of mathematics and science. On its own this
is powerful testimony of soundness of mind but it also goes to
destroy the Defendants’ case on undue influence. There is a faint
29
suggestion in paragraph 20 of the Affidavit of Evidence that the
Wills were unnatural, but this is no part of the Caveat and is beyond
pleadings.
30
37. Juliana’s cross-examination is comprehensive. She says
clearly in response to Question 26 that she does not remember the
previous illnesses. More importantly, she also says in response to
Questions 133 to 135 that Juliana recovered within one month from
her illness in 1984. It is necessary to set out the two portions of the
evidence, i.e., in the examination-in-chief and in the cross-
examination one after the other:
“13. I say that my mother Mrs. Eliza Soares, had
fallen seriously ill in 1984 and thereafter till her
29 Vol. B, p. 174 .
30 Vol. B, pp. 182–250 .
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death ws being treated for multiple medical
conditions including diabetes, high blood pressure,
heart ailments and was being medically treated
both at private nursing homes and at Nanavati
Hospital and Lilavati Hospital. I say that my
deceased father had been ill with similar ailments
since 1996 and not very much stronger than my
mother.”
In contrast to this in cross-examination, Juliana said:
“(Witness’ attention is drawn to paragraph
13 of her Affiavit of Evidence)
According to you your mother fell seriously
Q.133
ill in 1984. What had happened to her?
She had a stroke.
Ans.
What effect did the stroke have on her
Q.134
body?
She couldn’t walk, but she recovered very
Ans.
soon.
Within approximately what time did she
Q.135
recover?
Within a month she recovered.”
Ans.
38. Clearly, therefore, there is no question of incapacity such as
would have rendered Eliza susceptible to undue influence. It is not
even Juliana’s case that she was continuously ill from 1984
31 32
onwards and she admits that her only illness was diabetes. That
31 Question 141, p. 217.
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33
she was giving tuitions at the time of the Will was also admitted
34
and that these were for mathematics and science. Most
35
interestingly in response to Questions 54 to 56, she says her father
was most astute about his financial affairs.
According to you, was someone else
Q.54
providing for them and looking after them?
Whatever money was spent by my brother
Ans.
was the money he had taken from my
father, which was badly invested by him
and lost.
Can you explain, if he had lost the money
Q.55
how he could have spent it on the
parents?
I presume that it was what he was trying to
Ans.
give back, the best he could, since he had
lost everything. My father was very careful
with his money.
Do you have any documents to support
Q.56
your claim that the Petitioner had lost all
the money, which your father had given to
him, in the Stock Market?
My father told me about it.”
Ans.
32 Question 164, p. 220.
33 Question 45, p. 189.
34 Question 142, p. 217.
35 At p. 191.
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39. On the question of dependency, it appears that her case was
that Clement was dependent on her parents and not the other way
36
round:
“ In paragraph 7 you have mentioned that
Q.82
your brother was dependent on your
parents till the year 1994. If from 1989 he
was already employed, do you agree that
thereafter there was no question of his
being dependent upon anyone?
That is not true, because he couldn’t afford
Ans.
a house of his own. He was dependent on
my parents.
Was there enough space in the house?
Q.83
Yes.
Ans.
Can you explain why if there was enough
Q.84
space in the house he should look out for
another house?
Because he wanted to sponge off my
Ans.
father.
“ Is it correct that Plaintiff completed his
Q.85
studies i.e. B.E. Electrical in 1983?
I am not sure.
Ans.
Is it correct that immediately thereafter i.e.
Q.86
from 1983 to 1985 he was working with
RCF?
36 pp. 197-198
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Yes.
Ans.
Is it correct that from 1987 onwards he
Q.87
was continuously till 1999 working with
Crompton Greaves and then with Credit
Capital Finance Corporation and then Unit
Trust of India and then Deutsche Bank
Financial Services India Services India
Limited and Shree Stock Vision Securities
Limited?
I have no idea whether he worked for all
Ans.
these companies.”
40. This is no evidence of dependency at all, and it is difficult
from this to see how Eliza and Anthony could be said to have been
put under any sort of pressure by Clement. Her answers here are
clearly prevarications, for it is hardly likely that at the time when the
parents were alive, Juliana would have been totally unaware of
Clement’s employment, especially if she claims to have such
familiarity with his stock market losses.
41. A suggestion was put to Juliana that her father used to give
37 38
her money periodically. A document at Exhibit “D1” was
introduced and this is a document that is in Anthony’s handwriting.
It notes very many items given to Juliana and her family members
including her sons Vivek and Vinay at various times. These include
cash and jewellery. All of this is meticulously maintained with dates
and amounts.
37 Questions 61 to 64, p. 194.
38 p. 251.
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42. There is then the evidence of Juliana that she was aware of
the two Wills:
Is it correct that in the above portion of
Q.219
your Written Statement you have alleged
that your mother had expressed her desire
to execute a fresh Will, which would mean
that you were aware that prior to that she
had already executed a Will?
This was told to me by my brother
Ans.
Leopold.
Did you believe the words of Leopold?
Q.220
Ans. Yes.
Would it be therefore correct to say that
Q.221
you were aware even prior to the service
of the Court papers that your mother had
executed a Will?
Ans. It was told to me by my brother.
Therefore, you knew that there was a Will?
Q.222
Insofar as he told me about it.
Ans.
I am putting it to you that your statement
Q.223
that you became aware of the Will, only
when the papers were served upon you by
the Court is false.
Ans. It is not true.
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According to you, the entire portion in
Q.224
paragraph 5 which has been read out to
you was told to you by Leopold i.e., “ I say
that sometimes prior to her death during
her visit …......... bequeath”?
Yes.
Ans.
When did Leopold allegedly tell you about
Q.225
this?
When my mother asked him to prepare a
Ans.
new Will at that time Leopold told me
about this.
“I say
(Witness’s attention is drawn to the lines
that some time prior to her death.” )
Can you now recollect, when did Leopold
Q.226
allegedly tell you this?
I don’t remember.
Ans.
(Witness’s attention is drawn to the rest of the
statements made in paragraph 5 beginning with
the words “ I say that accordingly, and as per her
instructions, Fr. Leopold Soares, the First named
Caveator herein, had got prepared my mother’s
Will ….... the Will which he had already got
executed from her in 1999.
”)
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Do I take it that according to you this
Q.227
entire portion which has been shown to
you was told to you allegedly by Leopold?
Yes.
Ans.
Q.228 Would it be therefore correct to say that
your allegations that the two Wills were
got executed by undue influence,
coercion and misrepresentation were
based on what was told to you by
Leopold?
Ans. That is true.
I am putting it to you that you have no
Q.229
personal knowledge about the allegations
made by you impugning the said two
Wills?
No. it is not correct.
Ans.
( Emphasis added )
43. Finally there is the evidence of Juliana in response to
39
Questions 254 to 255 and this is directly relevant to the question of
undue influence. It is best to set out these questions.
Would it be correct to say that therefore
Q.254
there was no point in your parents
bequeathing anything to Leopold?
39 At p. 240.
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I cannot say what my parents wanted to
Ans.
do. That was my parents’ wish.
As far as you are concerned at the time of
Q.255
your marriage and even thereafter,
sufficient money gift and jewellery were
provided to you by your parents?
They did what they thought right.
Ans.
44. If there was ever any question of the two deceased persons
not being under any undue influence and of having necessary
testamentary capacity, this is probably it.
45. For the sake of completeness, I will now consider the
40
evidence in rebuttal of Fr. Vernon D’Cunha. This witness, PW3,
held a high position in the Society of Jesus. He specifically deposed
that a Jesuit would not be able to keep any wealth or assets, at least
without specific permission. He would have to renounce it in favour
of the Society although he could receive it, as for example by means
41
of a bequest.
46. In fairness, in his submissions on behalf of the Defendants,
Mr. Raphael D’Souza restricts himself to one point only. He does
not suggest that the parents were financially dependent. In fact, he
says it was the other way around, and it was Clement who was
financially dependent on his parents. The case of undue influence,
Mr. D’Souza says, is only because of old age and infirmity.
40 pp. 519 to 526.
41 Questions 284–286, p. 522.
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According to him, the evidence shows that Eliza was, he says, the
evidence shows, infirm from 1984 till 2006. There is unfortunately
no evidence at all of this. All the evidence is to the contrary. The
fact that she was giving tuitions, and that these were in mathematics
and science to 10th standard students, is not disputed. This is hardly
evidence of infirmity of such a kind as would render her susceptible
to any form of undue influence.
47. Mr. D’Souza then questions why the two Wills are mirror
images of each other. There is nothing very untoward in any of this.
It is probably salutary. It is certainly not uncommon. In and of itself,
it is also not evidence or even indicative of either undue influence or
lack of testamentary or dispositive capacity.
48. Mr. D’Souza attempts a faint submission that the Wills had
places for signature marked with an “X”, and this is evidence that
Eliza and Anthony knew not what they were doing. It is clear that
the Wills were drawn up by an Advocate. They are typewritten.
Merely because there is a place indicator or a marking showing
where a person is to sign, this does not establish a want of
dispositive capacity. This practice is fairly common especially in
complex legal documents and even otherwise.
49. Mr. D’Souza next says that there is a contradiction between
the evidence of PW1 and PW2: PW1 says that both read the Wills in
the witnesses’ presence, whereas PW2 says to the reverse. Again
nothing much can turn on this, simply because, being required to
give evidence so many years after the fact, one cannot reasonably
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expect a photographic recollection of every single detail that
happens in the past.
50. As a general rule, Courts tend not to lean to interpretations
42
that would result in intestacy; and certainly not on so thin a thread.
Undue influence cannot be presumed. It must be pleaded and
proved. The Defendants needed to show that Eliza and Anthony
were wholly under Clement’s domination, and acted on his dictates
at least in the matter of the making of the Wills; that they did as he
commanded and had no choice in the matter; and that, but for this
undue influence, they would not have been moved to make such
Wills. The actual exercise of that undue influence on the testator,
and which is in the nature of coercion and fraud, must also be
43
demonstrated. It is not enough to show that one person was in a
position or had the power to overbear the testator; it must be shown
44
that Will was the result of the exercise of that power. Generalized
allegations will not do: undue influence is to be pleaded with
45
specificity, particularity and precision. As pointed out by this
Court in Arvind s/o Bhaurao Gangashettiwar & Ors. v Smt. Indirabai
46
W/o Balkrishna Gangashettiwar :
“26 ...Mere presence of motive and opportunity for
playing fraud or exercising undue influence are not
sufficient to draw any inference in this respect.”
42 Pearey Lal v Rameshwar Das , AIR 1963 SC 1703; Bajrang Factory Limited
& Anr. v University of Calcutta & Ors. , (2007) 4 SC 513.
43 Mt. Gomtibai v Kanchhedilal & Ors. , AIR 1949 PC 272.
44 Wingrove v Wingrove , [1885] 11 PD 81.
45 Afsar Shaikh & Another v Soleman Bibi & Ors. , (1976) 2 SCC 142.
46 2008 (5) All MR 651.
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51. Similarly, in Naresh Charan Das Gupta v Paresh Charan Das
47
Gupta , the Supreme Court held:
“13. It is elementary law that it is not every
influence which is brought to bear on a testator that
can be characterised as “undue”. It is open to a
person to plead his case before the testator and to
persuade him to make a disposition in his favour.
And if the testator retains his mental capacity, and
there is no element of fraud or coercion – it has
often been observed that undue influence may in
the last analysis be brought under on or the other
of these two categories – the will cannot be
attacked on the ground of undue influence.”
52. In its recent decision in Charulata @ Renuka Haresh Lulla v
48
Gul Khanchand Gidwani & Ors ., this Court held:
“24. The principle of the ambit of undue influence
which can be practiced upon a testator has been
considered for the last more than a century in
England and later also in the Indian cases. The
authority under the said subject is the case of Hall v
(1868) LR 1 P & D 481 which held thus:
Hall
Even a reprehensible placing of
pressure on a testator will not always
be undue influence so as to avoid the
will: “
To make a good will a man must
47 AIR 1955 SC 363.
48 2013 (2) All MR 261.
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be a free agent. But all influences are
not unlawful. Persuasion, appeals to
the affection or ties of kindred, to a
sentiment of gratitude for past
services, or pity for future destitution,
or the like - these are all legitimate,
and may be fairly pressed on a
On the other hand, pressure of
testator.
whatever character, whether acting or
the fears or the hopes, if so exerted as
to overpower the volition without
convincing the judgment, is a species
of restraint under which no valid will
can be made. Importunity or threats,
such as the testator has not the
courage to resist, moral command
asserted and yielded to for the sake of
peace and quiet, or of escaping
distress of mind or social discomfort,
these, if carried to a degree in which
the free play of the testator's judgment,
discretion or wishes is overborne will
constitute undue influence, though no
force is either used or threatened.”
And thus Sir Wilde concludes:
“In a word a testator maybe
led but not driven and his
must be the off-spring of his
own volition and not the
record of someone else’s.”
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28. The defendants have not made out any case of
fraud. They have not shown such coercion
practiced by the plaintiff upon the deceased as to
make him sign on the dotted line under her
influence. They have, therefore, not shown any
such misrepresentation made by the plaintiff. The
fact of the plaintiff living with the deceased which
led the deceased to make a will in her favour
shows the course of the behaviour of the plaintiff.
The deceased himself with a free mind decided to
The
give her his properties under the will.
deceased had no other closer, better relative to
bequeath his properties unlike in the cases cited
above in which close family members themselves
were disinherited.”
( Emphasis added )
53. All the other issues will, therefore, have to be answered in the
negative.
I. CONCLUSIONS & ORDER
54. In my view, the Defendants have not been able to establish
their case at all. The Plaintiffs have discharged their evidentiary
burden.
55. Both Suits are accordingly decreed. The Caveats are
dismissed. The Petitions to proceed accordingly. Drawn up decrees
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dispensed with including as to dismissal or discharge of the caveats.
The Registry is not to raise requisitions regarding proof of service of
citations.
56. Registry will issue probate on an expedited basis and, subject
to all just exceptions, preferably before 22nd December 2016.
(G. S. PATEL, J.)
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ATUL
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
TESTAMENTARY SUIT NO. 12 OF 2006
IN
TESTAMENTARY PETITION NO. 623 OF 2005
C LEMENT S OARES ,
of Mumbai Indian Christian Inhabitant, the
sole Executor of the Will of the deceased
above named residing at Aldona House, Flat
No. 3, 74, Rebello Road, St. Sebastian Colony,
Bandra (West), Mumbai 400 050 …Plaintiff
~ versus ~
1. Juliana Farias,
2. Fr Leopold Soares,
(Through his C.A. Mrs. Juliana Farias),
Indian Christians, residing at
1) St. Xaviers High School, Post
Box No. 21, Nehru Nagar, Nashik
Road 422 101, Maharashtra
and
2) 5, Sadashiv Smruti, 4th Road,
TPS-III, Santacruz (East),
Mumbai 400 055 ... Defendants
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WITH
TESTAMENTARY SUIT NO. 19 OF 2008
IN
TESTAMENTARY PETITION NO. 217 OF 2007
C LEMENT S OARES ,
of Mumbai Indian Christian Inhabitant, the
sole Executor of the Will of the deceased
above named residing at Aldona House, Flat
No. 3, 74, Rebello Road, St. Sebastian Colony,
Bandra (West), Mumbai 400 050 …Plaintiff
~ versus ~
1. Juliana Farias,
2. Fr Leopold Soares,
(Through his C.A. Mrs. Juliana Farias),
Indian Christians, residing at
1) St. Xaviers High School, Post
Box No. 21, Nehru Nagar, Nashik
Road 422 101, Maharashtra
and
2) 5, Sadashiv Smruti, 4th Road,
TPS-III, Santacruz (East),
Mumbai 400 055 ... Defendants
A PPEARANCES
FOR THE PLAINTIFF Mr. Shailesh Shah, Senior Advocate , i/b
M/s. S.K. Srivastav & Co.
FOR THE DEFENDANT Mr. Raphael D’Souza .
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CORAM: G.S. PATEL, J
DATED: 23rd November 2016
ORAL JUDGEMENT:
JUDGEMENT STRUCTURE
A. INTRODUCTION ..................................................................4
B. FACTUAL BACKGROUND...................................................4
C. THE TWO WILLS IN QUESTION........................................6
D. THE CAVEATS.......................................................................7
E. ISSUES ..................................................................................9
I. ISSUES IN TESTAMENTARY
SUIT NO. 12 OF 2006 .....................................................9
II. ISSUES IN TESTAMENTARY
SUIT NO. 19 OF 2008 ....................................................11
F. ORAL AND DOCUMENTARY EVIDENCE ....................... 12
G. RE: ISSUE NO. 1 ................................................................... 13
H. RE: REMAINING ISSUES....................................................20
I. CONCLUSIONS & ORDER..................................................38
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A. INTRODUCTION
1. This judgement disposes of both Testamentary Suits. They
were heard together. Although Affidavits in lieu of Examination-in-
Chief were filed separately in each, and the two cases deal with
separate Wills, the cross-examination was taken together, and the
witnesses were common to both. Testamentary Suit No. 12 of 2006
seeks probate to the last Will and Testament dated 22nd January
1999 of one Eliza Anthony Soares (“ Eliza ”). Testamentary Suit No.
19 of 2008 seeks probate to the last Will and Testament also dated
22nd January 1999 of Eliza’s husband, Anthony Xavier Soares
(“ Anthony ”). Both Wills are registered. The only ground of
opposition to both Wills is that the Plaintiff, one of the children of
Eliza and Anthony, and also the sole Executor (and the largest
beneficiary) in each Will, procured the Wills by exercising undue
influence on his parents. I heard Mr. Shah for the Plaintiff and Mr.
D’Souza for the Defendants at some length. After considering the
evidence and the material on record, I have decreed both suits. My
reasons follow.
B. FACTUAL BACKGROUND
2. Anthony and Eliza Soares had four children, three sons and a
daughter. The daughter, Juliana, was the third child. The two elder
sons were Patrick and Leopold (the 1st Defendant). The youngest
child was their son Clement, the Plaintiff and the sole Executor of
both Wills.
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3. Anthony and Eliza Soares made their home in what was then
the quiet and leafy suburb of Bandra. They owned a plot at 74,
Rebello Road, St. Sebastian Colony in Bandra, and on this stood a
structure called Aldona House. This appears to have had more than
one floor, and separate apartments on each. At least one of these
was tenanted. Patrick lived alone in one apartment; he was
unmarried. Clement and his wife lived with Anthony and Eliza in
their apartment. Juliana moved out of Aldona House after her
marriage. Leopold took holy vows in 1967, becoming a Jesuit, and
the conditions of his order required him to move out of Aldona
House to quarters provided by the Society of Jesus. Anthony and
Eliza also owned property in Aldona, Bardez, Goa.
4. By all accounts, the family was reasonably well off. Anthony
had carefully husbanded his resources and assets. Eliza was
previously a teacher. By 1999, Anthony led a life of retirement. Eliza
continued to work, giving private tuitions in mathematics and
science to 10th standard students, something she continued doing
for the next several years till 2003.
5. On 22nd January 1999, both Anthony and Eliza made their
Wills. Both Wills were registered later that very day. At that time,
Eliza was about 76 years old, but seems to have been in good health.
There is no evidence of the kind of debilitating physical or mental
impairment the Defendants claim. Anthony was 85 years old then,
and he, too, seems to have been active and alert. Both Anthony and
Eliza lived for several years after they made their Wills: Eliza died on
11th March 2005 and Anthony died on 1st December 2006.
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6. On 6th August 2005, Clement filed Testamentary Petition
No. 623 of 2005 for probate to Eliza’s Will. Leopold and Juliana
opposed, entering a joint caveat and Affidavit in Support dated 3rd
1
February 2006. The suit was renumbered as Testamentary Suit No.
12 of 2006. After Anthony died, Clement filed for probate to
Anthony’s Will on 17th February 2007. Again, Leopold and Juliana
opposed by filing a common caveat and Affidavit in Support dated
2
21st January 2008, and this Petition was renumbered as
Testamentary Suit No. 19 of 2008.
C. THE TWO WILLS IN QUESTION
3
7. I will turn first to the dispositions in Eliza’s Will. This is a
typewritten Will. Eliza appointed Clement as the sole Executor of
the Will. She said that she had a 50% share in Plot No. 74 and in
Aldona House. The remaining 50% belonged to Anthony. She also
said she held an interest in House No. 189 at Aldona, Bardez, Goa
including a land and cottage and, in addition, had savings bank
accounts, fixed deposits and other investments and some jewellery.
She bequeathed her interest in Aldona House to Clement. She noted
that Patrick, her eldest son, lived in a portion of this property. The
bequest to Clement was subject to Patrick’s right of residence, a life
interest. The Goa property was left to Patrick and Clement in equal
shares. As regards the movables, they were bequeathed to Anthony,
and, failing him, were to be divided between her children such that
1 Vol. A, p. 38.
2 Vol. A, p. 83.
3 Vol. A, pp. 11–14.
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Patrick and Clement would each take 30% and Leopold and Juliana
20% each. Eliza left all her jewellery to Juliana. The Will was
witnessed by one Dr. Mark D’Souza, a physician and a relative of
the family, and by one Mr. Hermiterio Xavier Mathias Fernandes.
4
8. Anthony’s Will, made on the same date, contained
substantially the same provisions. He too appointed Clement as his
sole Executor. He also bequeaths his share in the Aldona House to
Clement subject to Patrick’s life interest of residence in a portion of
that house. Anthony left his share in the Goa property to Patrick and
Clement in equal shares. Anthony had no jewellery, but did have
investments in bank deposits and these were divided between his
four children in the same proportions, with Patrick and Clement
each taking 30% and the remaining 40% being divided equally
between Leopold and Juliana.
D. THE CAVEATS
9. The Caveats in both matters are also largely common. In
opposing the grant of probate to Eliza’s Will, Juliana and Leopold
say that Clement and his wife obtained Eliza’s Will by undue
influence, misrepresentation and coercion. They also contend that
that Eliza asked Leopold to prepare another Will but that this was
never executed. In opposition to Anthony’s Will, Leopold and
Juliana take very nearly the same objections.
4 Vol. A, pp. 55-58.
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10. There are, however, certain statements in both Caveats to
which I must make specific reference. The allegation in paragraph 3
of the Affidavit in Support of the Caveat in the Petition for probate
to Eliza’s Will says that it was Eliza’s desire that all four children
should have equal shares in the family house. The Defendants say
that Clement had lost heavily during the Harshad Mehta scam and
used his father’s savings to pay off his debts; that Eliza was ill and
was treated for multiple sicknesses such as diabetes, high blood
pressure, heart ailments and cerebral stroke, and was treated
frequently at both Nanavati Hospital and Lilavati Hospital. It is in
this background it is said in paragraph 5 that Clement took undue
5
advantage of Eliza’s illness and got her to execute the Will.
According to Juliana, she was told by Leopold that Eliza told him
(Leopold) that she (Eliza) wanted to make another Will and that she
had signed the present one under coercion from Clement. Eliza
alleges that Leopold then got a Will prepared and gave it to Clement
for execution. This, too, Juliana knows only from Leopold. This is of
some consequence because in her Evidence Affidavit Juliana later
says that Leopold told her this fresh Will was given not to Clement
but to Eliza herself. There is, however, a curious statement made in
paragraph 5 of this Caveat:
“5. I say that as to her jewellery, I being the only
daughter she had bequeathed the same to me.”
I will consider the effect of this statement and whether or not it
constitutes an admission when I turn to an analysis of the matter.
5 Vol. A, p. 40.
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11. In the Caveat opposing the grant of probate to Anthony’s
Will, there is again a repetition of the same allegations. Here it is
said that Anthony was seriously ill having been treated for diabetes,
high blood pressure and chest problems at Raheja Hospital and
Lilavati Hospital. He was seriously ill and immobile to a great
extent. It is not said clearly as to for what period of time he was in
this condition, even if this is true. Paragraph 6 of this Caveat
contains more or less the same allegations as paragraph 5 of the
allegations made in the previous Affidavit. Throughout it is alleged
that the father being old and infirm was not in a position to
understand what he was doing.
E. ISSUES
6
12. On 17th October 2008, issues were settled in both matters.
The two sets of issues that were settled on 17th October 2008 and
my findings are listed below against each.
I. ISSUES IN TESTAMENTARY SUIT NO. 12 OF 2006
Sr. No. Issue Findings
Whether the Plaintiff proves that the Will
1.
dated 22nd January 1999 annexed to the
Yes
Petition is executed by the deceased Eliza
Soares?
6 Vol. A, p. 44 for the issues in Testamentary Suit No. 12 of 2006 and p.
89 for the issues in Testamentary Suit No. 19 of 2008.
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Sr. No. Issue Findings
2. Whether the Defendants prove that both
the father and mother of the Plaintiff and
Defendants were under the influence,
No
control and management of the Plaintiff
and his wife as alleged in paragraph 4 of
the Affidavit in Support of the Caveat?
Whether the Defendants prove that the
3.
Plaintiff by misrepresentation, coercion or
undue influence got the Will/Testament
No
executed by the deceased and got it
registered as alleged in paragraph 5 of
the Affidavit in Support of the Caveat?
Whether the Defendants prove that the
4.
deceased has instructed the Defendant
No. 1 to prepare another Will and the same
was given by the 1st Defendant to the
No
Plaintiff to get it executed and registered
as alleged in paragraph 5 of the Affidavit
in Support of the Caveat?
Whether the Defendants prove that the
5.
deceased had bequeathed her estate to
her husband first and then to her four
No
children in equal shares as alleged in
paragraph 6 of the Affidavit in Support of
the Caveat?
6. What orders? Suit decreed
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II. ISSUES IN TESTAMENTARY SUIT NO. 19 OF 2008
Sr. No. Issues Findings
Whether the Plaintiff proves that the Will
1.
dated 22nd January 1999 annexed to the
Yes
Petition is executed by the deceased
Anthony Xavier Soares?
Whether the Defendants prove that both
2.
the father and mother of the Plaintiff and
Defendants were under the influence,
No
control and management of the Plaintiff
and his wife as alleged in paragraph 4 of
the Affidavit in Support of the Caveat?
3. Whether the Defendants prove that the
Plaintiff by misrepresentation, coercion or
undue influence got the Will/Testament
No
executed by the deceased and got it
registered as alleged in paragraph 5 of
the Affidavit in Support of the Caveat?
Whether the Defendants prove that the
4.
deceased has instructed the Defendant
No. 1 to prepare another Will and the same
was given by the 1st Defendant to the
No
Plaintiff to get it executed and registered
as alleged in paragraph 6 of the Affidavit
in Support of the Caveat?
Whether the Defendants prove that the
5.
No
deceased had a desire to bequeath his
estate equally to all his 4 children as
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Sr. No. Issues Findings
alleged in paragraph 8 of the Affidavit in
Support of the Caveat?
What orders?
6. Suit Decreed
F. ORAL AND DOCUMENTARY EVIDENCE
13. The Plaintiff led the evidence of both attesting witnesses and
then a senior priest or functionary from the Society of Jesus. There
is an order of 12th December 2008 that gave the Plaintiffs the liberty
to lead evidence in rebuttal and this is how the evidence of Fr
Vernon D’Cunha of the Society of Jesus was led as PW3. The
Plaintiff himself did not give evidence.
14. The Defendants led the evidence of Juliana who was cross-
examined. Leopold began giving evidence but then did not present
himself for completed cross-examination. I will consider the effect
of this as well.
15. The documents in question are not many. In fact the principal
document is the record of certain proceedings in the Court of Small
Causes against a third party, one of the tenants or occupants of
Aldona House.
16. In both cases, the burden of proving issue No. 1 is on the
Plaintiff while the burden of proving other issues is on the
Defendant. I will, therefore, discuss the first issue in both cases
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together, i.e. , Whether the Plaintiff proves the due execution of the
two Wills?
G. RE: ISSUE NO. 1
17. PW1 was the first attesting witness, Mr. Hermitero
7
Fernandes. He was about 78 years old at the time when he filed his
Evidence Affidavits dated 12th June 2008. He deposed that he knew
Eliza and Anthony, and that on 22nd January 1999 at about 9.00
a.m., he was present along with the other attesting witness, Dr.
Mark D’Souza, at Aldona House, Flat No. 1. At that time, PW1 says
he saw both deceased sign their Wills and inscribe their signatures at
the foot of each of the pages of the Will. The deceased also put the
date just above the signature. Thereafter, PW1 and the second
attesting witness signed the Will as witnesses. He then deposes that
in the afternoon of that very day, 22nd January 1999, the Will was
registered at the Office of the Sub Registrar of Assurances, Andheri,
Mumbai Suburban at the Bandra Office. At that time, both the
deceased Testator and the Testatrix and both witnesses were
present before the Sub Registrar.
18. PW1 was cross-examined partly in Court. I find from the
cross-examination, which, as I have noted is common to both cases,
that an attempt was made to suggest that there was only one
8
document that was signed. This is no part of the case pleaded in the
7 Examination-in-chief, Vol. B, pp. 100–102 and 104–106.
8 Vol. B, p. 116.
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Caveat. This attempt did not succeed because the witness clearly
9
said that both Wills were signed on that date. At this stage, I must
refer to a suggestion put to PW1 regarding the persons present at the
time of execution of the two Wills.
“ Is it correct that on 22nd January 1999 at
Q.
9.00 a.m., you along with Eliza and Dr.
Marks were the only persons who were
present?
Anthony was also present.
Ans.
Can you tell how long it took for
Q.
completion of the work of execution of the
Will?
I cannot remember.”
Ans.
The suggestion clearly, therefore, is that the Plaintiff was not
present at the time of the execution of the Wills. Apart from the fact
that this has a material bearing on the case of undue influence and
about that case not being proved, this suggestion does not in any
way damage the Plaintiff’s case about the due execution of the Will.
19. What is important however is the manner in which the
question is put. The witness was not asked who was present, or to
name those present. A specific case was put to him asking him to
confirm that the Plaintiff was in fact present at that time. The
framing and phrasing of the question clearly suggest, therefore, that
the Defendants knew for a fact that the Plaintiff was present at that
9 Vol. B, p. 117.
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time. When a question is put like this, the party cross-examining
then takes on himself or herself the burden of proving the
correctness of the suggestion. There is an increasing tendency to
place questions like this — “I put it to you ... ” or “is it not correct
...” — without heed to the consequences. This is an error, and there
is no legal basis for the supposition that these ‘suggestions’ are
innocuous or their consequences irrelevant. When a party ‘puts’ a
positive case to a witness, makes a positive suggestion or asks if a
particular thing is not correct, then the party cross-examining takes
on himself or herself the onus of proving the correctness of the
suggestion. If the witness agrees, the cross-examiner need do
nothing further. But if the witness refutes the suggestion, then the
cross-examiner must prove the correctness of it; and his failure to do
so is again not without consequence.
20. Consider for a moment the foregoing question, which I will
reproduce again on its own:
Q. Is it correct that on 22nd January 1999 at 9.00
a.m., you along with Eliza and Dr. Marks were the
only persons who were present?
The suggestion is that the Defendants know and are in a position to
prove that Eliza, Fernandes and Dr. Marks were the only ones
present at 9:00 am, and that Anthony was not present; i.e. , that
Anthony was elsewhere. The Defendants do nothing further in this
regard, and therefore the conclusion against the Defendants are
inescapable: either that they kept back evidence specially within
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their knowledge, or that the suggestion is false. This would not have
been the consequence had the question been differently phrased:
Q. On 22nd January 1999 at 9.00 a.m., were you
along with Eliza and Dr. Marks the only persons who
were present?
Here, the cross-examiner and the Defendants would have taken no
onus on themselves. The question is merely a query to the witness,
who might say yes or might say no. There would have been no
impact on the Defendant’s had the question been placed in this
fashion. The result is that the Defendants are, at the very least,
unable to prove their assertion that Anthony was not present at 9:00
am on 22nd January 1999; the evidence from the Plaintiffs is not just
unshaken; it is reaffirmed.
21. A further question was then put to PW1 to the effect that it
was the Plaintiff, Clement, who took Fernandes, Eliza and Anthony
to the sub-Registrar’s Office. Though PW1 answered in the
10
negative, this question is directly contrary to the previous
suggestion of Anthony’s absence, and the discrepancy is never
explained. Again, this question suffers from the same vice: it
suggests that the Defendants are in a position to establish and prove
Clement’s presence at the sub-Registrar’s office. No attempt is
made in that direction. Fernandes then added that he did not
recollect the name of the person who took himself, Eliza and
Anthony to the Registrar’s Office and whether PW2, Dr Mark
D’Souza, accompanied them. He, however, denied the suggestion
10 Vol. B, p. 121.
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that PW2 was not present at the time when execution of the Wills
was admitted. This is a third instance of the same form of
unsubstantiated and unproved suggestion being put to the witness.
Fernandes added that the sub-Registrar read the Wills to Anthony
11
and Eliza.
22. I turn now to the evidence of PW2, Dr. Mark D’Souza, a
12
practising physician. His examination-in-chief is broadly consistent
with that of PW1. It is the cross-examination, however, that is of
13
interest. In this cross-examination, Dr. Mark D’Souza deposes that
he has an independent practice and is attached to two Hospitals, the
Holy Spirit Hospital, Andheri and the Holy Family Hospital at
Bandra. He also says that Eliza was his father’s sister, his maternal
aunt, and that he lived close by, no more than three or four kms.
14
from the Soares’s residence. He then says that Eliza visited his
clinic and personally asked him to come to her house on 22nd
15
January 1999 to witness the execution of her Will. As to her state of
health, he specifically deposes that Eliza was able at that time to
16
walk about three kms. to visit him at his residence. He goes on to
say that at that time she was still very much active and gave tuitions
to 10th standard students, while Anthony, though older, was quite
assertive even at that age. The cross-examination is brief and
nothing further is elicited in it by the Defendants.
11 Vol. B, p. 121.
12 Vol. B, pp. 136–138 and 140–142.
13 Vol. B, pp. 144-149 .
14 Vol. B, p. 145 .
15 Vol. B, p. 146 .
16 Vol. B, pp. 147–148.
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23. Then there is the question of the Defendants’ evidence, but
this does not touch upon the due execution of the Will although
attempts are made to suggest that both the Testator and Testatrix
lacked the necessary testamentary capacity. The evidence of
Leopold Soares is that Eliza was seriously ill and was treated for
multiple sicknesses such as diabetes, high blood pressure, heart
ailments and was medically treated both at private nursing homes
and at Nanavati Hospital and Lilavati Hospital since 1984. He says
that Anthony was old and immobile to a great extent since 1996 and
was incapable of conducting himself of his own free will. This is of
course followed by an allegation of undue influence, but I will turn
to that presently. As to the actual physical and mental state, there is
no direct evidence in the examination-in-chief. The evidence of
17
PW2 is too much the same effect. However, in her examination-in-
chief, PW2 Juliana makes a set of very peculiar statements. The first
18
of these is to be found in paragraph 15 of her examination-in-chief.
“15.
I say that my father and mother were
financially self sufficient throughout their lives
with income including that from rents from three
flats, pensions, interest from bank investments,
savings and private tuitions my mother gave to
The papers and documents
school children.
including their Income Tax Returns, and Bank
Records which are in possession of Mr. Clement
Soares, the Plaintiff/Petitioner herein and can be
produced when required with the directions of this
Hon’ble Court.”
17 Vol. B, pp. 170-174 .
18 Vol. B, p. 173 .
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( Emphasis added )
24. This itself is evidence of mental capacity. If there was any
doubt about this, it is put to rest by the contents of paragraph 19 of
19
that examination-in-chief.
“19. I say that it is pertinent to note that in each of
the respective Wills of my mother and father,
identical statements of joint equal ownership of the
property at Goa have been made. I further say, that
at the purported time the said Wills were signed,
i.e., 22 January 1999, the said Goa property was in
possession of a third party and a twenty year old
litigation for possession in the Goa Court, was in
progress.
My father and mother, being of sound
mind, when they allegedly made their respective
Wills, were definitely aware of the fact that the
.
Goa property was owned exclusively by my father
Therefore, I say that the false statement in my
parent’s Wills that she owned 50% of the Goa
property was at the sold instance of the
Plaintiff/Petitioner, who in the grip of full confidence
of the success of his coercive activity got careless.”
( Emphasis added )
25. This is the clearest possible admission of soundness of mind
and testamentary capacity of both Eliza and Anthony. It is hardly
possible to suggest that the two deceased were of sound mind in
19 Vol. B, pp. 173-174 .
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respect of the disposition of the Goa property but were of unsound
mind for the rest. Indeed, the statement, never explained in
paragraph 19 is that they were both of sound mind when they
20
allegedly made their respective Wills.
26. In view of this state of the evidence, it will have to be held
that issue No. 1 in both cases is to be answered in the affirmative.
The due execution of the two Wills is thus proved.
H. RE: REMAINING ISSUES
27. The remaining issues can all be dealt with together. They
cover undue influence, misrepresentation, coercion, whether there
was a second Will prepared, and whether Eliza and Anthony desired
to bequeath their estate equally to all four children. The burden of
proving all these issues was always on the Defendants. That burden
has not, as we shall see, been discharged. I will note here that there
is some degree of overlap between the previous issues and this
bunch because of the way Mr. Raphael D’Souza has placed his case,
particularly his submission that the undue influence alleged is tied
to the Defendants’ case that Eliza and Anthony suffered from such
ailments as left them incapable of dispositive understanding.
28. To appreciate the evidence, some dates are material. These
are undisputed. In 1967, Leopold, DW1, took holy orders or vows
20 Bharat Singh & Anr v Bhagirathi , AIR 1966 SC 405; Ramji Dayawala &
Sons v Invest Import , (1981) 1 SCC 80.
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and left the family home. He went to reside in quarters allotted to
him by the Society of Jesus. In 1980, DW2, Juliana married and left
the house. In February 1999, Clement and his wife left Mumbai and
went to Muscat. Patrick stayed on at Aldona House in Mumbai.
Patrick has, however, never challenged either of the Wills. Clement
and his wife remained in Muscat for the next five years till 2004,
when they returned. They then resumed residing in the same house
as their parents and they say they looked after them.
29. The substance of the case by the Defendants is that Clement
had lost a lot of money in the Harshad Mehta scam and that he was
drawing on his parents’ resources. How this can be said to be
evidence of ‘undue influence’ is never fully or properly explained. In
any case, much of this, at least in the hands of the Defendants, is
hearsay and inadmissible evidence. Paragraph 5 of Leopold’s
21
Affidavit of Evidence is that he had come home in December 1999
when Eliza confided to him that Clement had forced her and
Anthony to sign two Wills without giving them an opportunity to
read them. He says that Eliza asked him to help her and Anthony
make Wills afresh. He claims he took his mother to an Advocate,
Mr. Johnson John, in Bandra and that in his presence Eliza
instructed Mr. Johnson John to prepare two Wills, one for herself
and one for Anthony, ensuring that at the demise of either of them,
the surviving parent would inherit the entire movable and
immovable properties, and that on the surviving spouse’s demise,
all the estate would be divided between the four children equally. He
claims that he then collected these fresh Wills and gave them to his
21 Vol. B, p. 161 .
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mother. This is in direct contradiction to what Juliana says. Her
evidence is also hearsay because she only reports what Leopold told
her, so she cannot attest to the correctness of what she was told, but
only that she heard a particular thing. She says that she was told that
the Wills were given not to Eliza but to Clement. In any case, no
attempt was made by the Defendants to summon Advocate Mr.
Johnson John or to have copies of these drafts produced.
30. Leopold himself never tendered himself fully for cross-
22
examination. His cross-examination was recorded only in part. In
this, he admits that he joined the Society of Jesus in 1967 and since
then did not stay permanently at the family seat at Aldona House,
Bandra. Between 1997 and 2007, he was at Nasik. It is, therefore,
not explained how he came to be in Mumbai in December 1999 to
have any alleged conversation with Eliza on making of a fresh Will.
23
31. Paragraph 2 of his cross-examination is most interesting. In
this he denies a suggestion that all household expenses were being
incurred by the Plaintiff. Even the medical expenses, he says, were
incurred by the parents themselves. In short, he maintains that his
parents were managing their own finances and were financially
independent. This is directly contradictory to what is stated in
paragraph 4 of his examination-in-chief where he alleges that his
parents were entirely at the mercy of the Plaintiff and were
compelled to obey him without question.
22 Vol. B, pp. 165-168 .
23 Vol. B, p. 166 .
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32. From the perspective of appreciation of evidence, this is a
truly piquant situation. The Plaintiff, cross-examining Leopold, put
the suggestion that it was Clement (the Plaintiff) who supported the
parents Eliza and Anthony, bearing their household expenses etc.
This was placed presumably to show a special affinity and a
particular closeness between the parents and Clement; but the
cross-examination strategy was not without risk: if the witness
agreed, this might in itself have been one nugget of evidence on the
question of undue influence, suggestive of a dependency of the
parents on Clement. As it happens, the Plaintiff’s failure to show
dependency works to his advantage by dislodging any plausibility of
undue influence. The parents were, by Leopold’s own telling of it,
self-reliant and not dependent on Clement at all.
33. It seems that the matter was adjourned for settlement on that
date and Leopold never returned to the witness box. There is an
24
order of 9th December 2009 in which the Court noted that the
Defendants claimed that Leopold was unwell. The Court left it to
the Defendants to resolve the matter and to decide for themselves
whether Leopold should return to the box, and, if not, what the
consequences might be. As it transpires, Leopold never returned to
the witness box.
34. I think it is safe, therefore, to say that if a witness does not
tender himself for cross-examination or absents himself for the
completion of the cross-examination, then so much of the evidence
as is against the other side must necessarily be ignored and, equally,
24 Per SC Dharmadhikari J.
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that any admissions in that testimony may be used against the party
calling that witness. This is how it must be in the present case too.
Leopold’s admission, therefore, that his parents were financially
independent is one that must be accepted. His allegation that they
were at the mercy of the Plaintiff must be rejected simply because
the Plaintiffs had no opportunity to fully test the assertions made by
Leopold in his cross-examination. Mr. Shah for the Plaintiffs points
out that there is some evidence to suggest that even during this
time, far from being unwell, Leopold was actually in good health and
25
serving his duties in Goa. If that be so, that makes matter even
worse.
26
35. This takes us to Juliana’s evidence. Her Evidence Affidavit
is essentially on the basis that her parents desired to leave the
property to all four children. In evidence of this, she cites certain
proceedings against another tenant in Aldona House where on a
ground of bona fide requirement it was stated that Anthony required
the premises for Juliana’s two sons. While this pleading is on record,
by itself it does not invalidate a testamentary disposition. It is an
admitted position that this so-called expression of intent never
found voice in a fresh testamentary instrument. Juliana accepts in
her examination-in-chief that her parents were financially self
27
sufficient, and that Clement and his wife lived abroad for a
28
considerable period of time.
25 Questions 238–239, p. 238.
26 Vol. B, pp. 170–174 .
27 Vol. B, para 15, p. 173.
28 Vol. B, para 14, p. 173.
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36. She seems to claim that the undue influence arises from her
parents’ lack of good health. In paragraph 16, she says that her
mother was unwell since 1984. It is to be noted that the Will itself is
of 1999, a good 15 years later. To accept this submission, Juliana
would, therefore, have to show that for that entire 15-year period
Eliza was in such poor health that she could not know what she was
doing. However, as I have noted, in paragraph 19 of her evidence she
accepts her parents’ soundness of mind. There is no dispute that
Eliza was giving tuitions even at the time when she made the Will
and that these tuitions were being given to 10th standard students
and were in the subject of mathematics and science. On its own this
is powerful testimony of soundness of mind but it also goes to
destroy the Defendants’ case on undue influence. There is a faint
29
suggestion in paragraph 20 of the Affidavit of Evidence that the
Wills were unnatural, but this is no part of the Caveat and is beyond
pleadings.
30
37. Juliana’s cross-examination is comprehensive. She says
clearly in response to Question 26 that she does not remember the
previous illnesses. More importantly, she also says in response to
Questions 133 to 135 that Juliana recovered within one month from
her illness in 1984. It is necessary to set out the two portions of the
evidence, i.e., in the examination-in-chief and in the cross-
examination one after the other:
“13. I say that my mother Mrs. Eliza Soares, had
fallen seriously ill in 1984 and thereafter till her
29 Vol. B, p. 174 .
30 Vol. B, pp. 182–250 .
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death ws being treated for multiple medical
conditions including diabetes, high blood pressure,
heart ailments and was being medically treated
both at private nursing homes and at Nanavati
Hospital and Lilavati Hospital. I say that my
deceased father had been ill with similar ailments
since 1996 and not very much stronger than my
mother.”
In contrast to this in cross-examination, Juliana said:
“(Witness’ attention is drawn to paragraph
13 of her Affiavit of Evidence)
According to you your mother fell seriously
Q.133
ill in 1984. What had happened to her?
She had a stroke.
Ans.
What effect did the stroke have on her
Q.134
body?
She couldn’t walk, but she recovered very
Ans.
soon.
Within approximately what time did she
Q.135
recover?
Within a month she recovered.”
Ans.
38. Clearly, therefore, there is no question of incapacity such as
would have rendered Eliza susceptible to undue influence. It is not
even Juliana’s case that she was continuously ill from 1984
31 32
onwards and she admits that her only illness was diabetes. That
31 Question 141, p. 217.
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33
she was giving tuitions at the time of the Will was also admitted
34
and that these were for mathematics and science. Most
35
interestingly in response to Questions 54 to 56, she says her father
was most astute about his financial affairs.
According to you, was someone else
Q.54
providing for them and looking after them?
Whatever money was spent by my brother
Ans.
was the money he had taken from my
father, which was badly invested by him
and lost.
Can you explain, if he had lost the money
Q.55
how he could have spent it on the
parents?
I presume that it was what he was trying to
Ans.
give back, the best he could, since he had
lost everything. My father was very careful
with his money.
Do you have any documents to support
Q.56
your claim that the Petitioner had lost all
the money, which your father had given to
him, in the Stock Market?
My father told me about it.”
Ans.
32 Question 164, p. 220.
33 Question 45, p. 189.
34 Question 142, p. 217.
35 At p. 191.
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39. On the question of dependency, it appears that her case was
that Clement was dependent on her parents and not the other way
36
round:
“ In paragraph 7 you have mentioned that
Q.82
your brother was dependent on your
parents till the year 1994. If from 1989 he
was already employed, do you agree that
thereafter there was no question of his
being dependent upon anyone?
That is not true, because he couldn’t afford
Ans.
a house of his own. He was dependent on
my parents.
Was there enough space in the house?
Q.83
Yes.
Ans.
Can you explain why if there was enough
Q.84
space in the house he should look out for
another house?
Because he wanted to sponge off my
Ans.
father.
“ Is it correct that Plaintiff completed his
Q.85
studies i.e. B.E. Electrical in 1983?
I am not sure.
Ans.
Is it correct that immediately thereafter i.e.
Q.86
from 1983 to 1985 he was working with
RCF?
36 pp. 197-198
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Yes.
Ans.
Is it correct that from 1987 onwards he
Q.87
was continuously till 1999 working with
Crompton Greaves and then with Credit
Capital Finance Corporation and then Unit
Trust of India and then Deutsche Bank
Financial Services India Services India
Limited and Shree Stock Vision Securities
Limited?
I have no idea whether he worked for all
Ans.
these companies.”
40. This is no evidence of dependency at all, and it is difficult
from this to see how Eliza and Anthony could be said to have been
put under any sort of pressure by Clement. Her answers here are
clearly prevarications, for it is hardly likely that at the time when the
parents were alive, Juliana would have been totally unaware of
Clement’s employment, especially if she claims to have such
familiarity with his stock market losses.
41. A suggestion was put to Juliana that her father used to give
37 38
her money periodically. A document at Exhibit “D1” was
introduced and this is a document that is in Anthony’s handwriting.
It notes very many items given to Juliana and her family members
including her sons Vivek and Vinay at various times. These include
cash and jewellery. All of this is meticulously maintained with dates
and amounts.
37 Questions 61 to 64, p. 194.
38 p. 251.
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42. There is then the evidence of Juliana that she was aware of
the two Wills:
Is it correct that in the above portion of
Q.219
your Written Statement you have alleged
that your mother had expressed her desire
to execute a fresh Will, which would mean
that you were aware that prior to that she
had already executed a Will?
This was told to me by my brother
Ans.
Leopold.
Did you believe the words of Leopold?
Q.220
Ans. Yes.
Would it be therefore correct to say that
Q.221
you were aware even prior to the service
of the Court papers that your mother had
executed a Will?
Ans. It was told to me by my brother.
Therefore, you knew that there was a Will?
Q.222
Insofar as he told me about it.
Ans.
I am putting it to you that your statement
Q.223
that you became aware of the Will, only
when the papers were served upon you by
the Court is false.
Ans. It is not true.
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According to you, the entire portion in
Q.224
paragraph 5 which has been read out to
you was told to you by Leopold i.e., “ I say
that sometimes prior to her death during
her visit …......... bequeath”?
Yes.
Ans.
When did Leopold allegedly tell you about
Q.225
this?
When my mother asked him to prepare a
Ans.
new Will at that time Leopold told me
about this.
“I say
(Witness’s attention is drawn to the lines
that some time prior to her death.” )
Can you now recollect, when did Leopold
Q.226
allegedly tell you this?
I don’t remember.
Ans.
(Witness’s attention is drawn to the rest of the
statements made in paragraph 5 beginning with
the words “ I say that accordingly, and as per her
instructions, Fr. Leopold Soares, the First named
Caveator herein, had got prepared my mother’s
Will ….... the Will which he had already got
executed from her in 1999.
”)
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Do I take it that according to you this
Q.227
entire portion which has been shown to
you was told to you allegedly by Leopold?
Yes.
Ans.
Q.228 Would it be therefore correct to say that
your allegations that the two Wills were
got executed by undue influence,
coercion and misrepresentation were
based on what was told to you by
Leopold?
Ans. That is true.
I am putting it to you that you have no
Q.229
personal knowledge about the allegations
made by you impugning the said two
Wills?
No. it is not correct.
Ans.
( Emphasis added )
43. Finally there is the evidence of Juliana in response to
39
Questions 254 to 255 and this is directly relevant to the question of
undue influence. It is best to set out these questions.
Would it be correct to say that therefore
Q.254
there was no point in your parents
bequeathing anything to Leopold?
39 At p. 240.
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I cannot say what my parents wanted to
Ans.
do. That was my parents’ wish.
As far as you are concerned at the time of
Q.255
your marriage and even thereafter,
sufficient money gift and jewellery were
provided to you by your parents?
They did what they thought right.
Ans.
44. If there was ever any question of the two deceased persons
not being under any undue influence and of having necessary
testamentary capacity, this is probably it.
45. For the sake of completeness, I will now consider the
40
evidence in rebuttal of Fr. Vernon D’Cunha. This witness, PW3,
held a high position in the Society of Jesus. He specifically deposed
that a Jesuit would not be able to keep any wealth or assets, at least
without specific permission. He would have to renounce it in favour
of the Society although he could receive it, as for example by means
41
of a bequest.
46. In fairness, in his submissions on behalf of the Defendants,
Mr. Raphael D’Souza restricts himself to one point only. He does
not suggest that the parents were financially dependent. In fact, he
says it was the other way around, and it was Clement who was
financially dependent on his parents. The case of undue influence,
Mr. D’Souza says, is only because of old age and infirmity.
40 pp. 519 to 526.
41 Questions 284–286, p. 522.
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According to him, the evidence shows that Eliza was, he says, the
evidence shows, infirm from 1984 till 2006. There is unfortunately
no evidence at all of this. All the evidence is to the contrary. The
fact that she was giving tuitions, and that these were in mathematics
and science to 10th standard students, is not disputed. This is hardly
evidence of infirmity of such a kind as would render her susceptible
to any form of undue influence.
47. Mr. D’Souza then questions why the two Wills are mirror
images of each other. There is nothing very untoward in any of this.
It is probably salutary. It is certainly not uncommon. In and of itself,
it is also not evidence or even indicative of either undue influence or
lack of testamentary or dispositive capacity.
48. Mr. D’Souza attempts a faint submission that the Wills had
places for signature marked with an “X”, and this is evidence that
Eliza and Anthony knew not what they were doing. It is clear that
the Wills were drawn up by an Advocate. They are typewritten.
Merely because there is a place indicator or a marking showing
where a person is to sign, this does not establish a want of
dispositive capacity. This practice is fairly common especially in
complex legal documents and even otherwise.
49. Mr. D’Souza next says that there is a contradiction between
the evidence of PW1 and PW2: PW1 says that both read the Wills in
the witnesses’ presence, whereas PW2 says to the reverse. Again
nothing much can turn on this, simply because, being required to
give evidence so many years after the fact, one cannot reasonably
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expect a photographic recollection of every single detail that
happens in the past.
50. As a general rule, Courts tend not to lean to interpretations
42
that would result in intestacy; and certainly not on so thin a thread.
Undue influence cannot be presumed. It must be pleaded and
proved. The Defendants needed to show that Eliza and Anthony
were wholly under Clement’s domination, and acted on his dictates
at least in the matter of the making of the Wills; that they did as he
commanded and had no choice in the matter; and that, but for this
undue influence, they would not have been moved to make such
Wills. The actual exercise of that undue influence on the testator,
and which is in the nature of coercion and fraud, must also be
43
demonstrated. It is not enough to show that one person was in a
position or had the power to overbear the testator; it must be shown
44
that Will was the result of the exercise of that power. Generalized
allegations will not do: undue influence is to be pleaded with
45
specificity, particularity and precision. As pointed out by this
Court in Arvind s/o Bhaurao Gangashettiwar & Ors. v Smt. Indirabai
46
W/o Balkrishna Gangashettiwar :
“26 ...Mere presence of motive and opportunity for
playing fraud or exercising undue influence are not
sufficient to draw any inference in this respect.”
42 Pearey Lal v Rameshwar Das , AIR 1963 SC 1703; Bajrang Factory Limited
& Anr. v University of Calcutta & Ors. , (2007) 4 SC 513.
43 Mt. Gomtibai v Kanchhedilal & Ors. , AIR 1949 PC 272.
44 Wingrove v Wingrove , [1885] 11 PD 81.
45 Afsar Shaikh & Another v Soleman Bibi & Ors. , (1976) 2 SCC 142.
46 2008 (5) All MR 651.
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51. Similarly, in Naresh Charan Das Gupta v Paresh Charan Das
47
Gupta , the Supreme Court held:
“13. It is elementary law that it is not every
influence which is brought to bear on a testator that
can be characterised as “undue”. It is open to a
person to plead his case before the testator and to
persuade him to make a disposition in his favour.
And if the testator retains his mental capacity, and
there is no element of fraud or coercion – it has
often been observed that undue influence may in
the last analysis be brought under on or the other
of these two categories – the will cannot be
attacked on the ground of undue influence.”
52. In its recent decision in Charulata @ Renuka Haresh Lulla v
48
Gul Khanchand Gidwani & Ors ., this Court held:
“24. The principle of the ambit of undue influence
which can be practiced upon a testator has been
considered for the last more than a century in
England and later also in the Indian cases. The
authority under the said subject is the case of Hall v
(1868) LR 1 P & D 481 which held thus:
Hall
Even a reprehensible placing of
pressure on a testator will not always
be undue influence so as to avoid the
will: “
To make a good will a man must
47 AIR 1955 SC 363.
48 2013 (2) All MR 261.
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be a free agent. But all influences are
not unlawful. Persuasion, appeals to
the affection or ties of kindred, to a
sentiment of gratitude for past
services, or pity for future destitution,
or the like - these are all legitimate,
and may be fairly pressed on a
On the other hand, pressure of
testator.
whatever character, whether acting or
the fears or the hopes, if so exerted as
to overpower the volition without
convincing the judgment, is a species
of restraint under which no valid will
can be made. Importunity or threats,
such as the testator has not the
courage to resist, moral command
asserted and yielded to for the sake of
peace and quiet, or of escaping
distress of mind or social discomfort,
these, if carried to a degree in which
the free play of the testator's judgment,
discretion or wishes is overborne will
constitute undue influence, though no
force is either used or threatened.”
And thus Sir Wilde concludes:
“In a word a testator maybe
led but not driven and his
must be the off-spring of his
own volition and not the
record of someone else’s.”
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28. The defendants have not made out any case of
fraud. They have not shown such coercion
practiced by the plaintiff upon the deceased as to
make him sign on the dotted line under her
influence. They have, therefore, not shown any
such misrepresentation made by the plaintiff. The
fact of the plaintiff living with the deceased which
led the deceased to make a will in her favour
shows the course of the behaviour of the plaintiff.
The deceased himself with a free mind decided to
The
give her his properties under the will.
deceased had no other closer, better relative to
bequeath his properties unlike in the cases cited
above in which close family members themselves
were disinherited.”
( Emphasis added )
53. All the other issues will, therefore, have to be answered in the
negative.
I. CONCLUSIONS & ORDER
54. In my view, the Defendants have not been able to establish
their case at all. The Plaintiffs have discharged their evidentiary
burden.
55. Both Suits are accordingly decreed. The Caveats are
dismissed. The Petitions to proceed accordingly. Drawn up decrees
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dispensed with including as to dismissal or discharge of the caveats.
The Registry is not to raise requisitions regarding proof of service of
citations.
56. Registry will issue probate on an expedited basis and, subject
to all just exceptions, preferably before 22nd December 2016.
(G. S. PATEL, J.)
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