Decided on December 19,1955

V.E. Desouza And Anr. Appellant
R.P. Desouza And Ors. Respondents


Chaturvedi, J. - (1.) THIS an appeal under Section 299 of the Indian Succession Act against an order passed in Letters of Administration Case No. 17 of 1953 by the District Judge, Indore, on 5 -10 -l953 dismissing the application for granting Letters of Administration with the will annexed to the Appellants.
(2.) THE deceased Peregrine Joseph DeSouza made a will on 21 -2 -1951 at Mhow bequeathing all his movable property worth nearly Rs. 7,000 to his brother and his brother's wife who are Appellants Nos. 1 and 2 in this appeal. He was at that time sixty years of age and was residing with the Appellants in Bungalow No. 109 at Mhow Cantonment. The will is a registered document. The testator then died on 15 -1 -1953 in Mhow in the house of the Appellants. The deceased left behind him, besides the Appellants, two more brOrs. and two sisters who are Respondents in this appeal. The application for Letters of Administration was opposed only by one brother i.e. Respondent No. 2, A.J. DeSouza mainly on the ground that the will was suspicious and seemed to be the outcome of undue influence exercised on the testator by the Appellants. It was mentioned that the deceased had a heart complaint and did not usually reside at Mhow, that it was only a temporary residence of his at Mhow and the Appellants taking advantage of his ill health manipulated the will which is suspicion's inasmuch as the other relations had not been informed of it. The said will was signed by two attesting witnesses (i) Rustomji D. Patel, who was at that time Guard, B.B. and C.I. Railway at Mhow, and (ii) Mr. R. Schoope, Roman Catholic Church Chaplin, at Mhow. The first witness could not be produced as he had been transferred to Ahmedabad. The Chaplain was produced who clearly deposed that the deceased signed the will Ex. P/1 in his presence and the other witness also signed it in his presence, and that the deceased at the time of execution appeared to be in a sound mental state. The witness knew the deceased for about a year before the will was made. The deceased would not come to the church at all but he called to his home the witness (i.e. the chaplin) for making prayers once a month. The deceased suffered from high blood pressure and nervousness and so he walked in the compound of his house but would not go outside. The chaplain was specially called as a witness to this will at the time of execution. As regards the mental ability of the deceased, the witness stated: My estimate of his mental ability is that he was fairly intelligent and able to look after his affairs. The evidence of the chaplain has not been adversely commented upon by the learned District Judge nor has he disbelieved it. It has been cursorily referred to in the judgment and the only portion of this testimony which the learned District Judge thought proper to refer to is that the deceased suffered from high blood pressure and nervousness. And, then, from other evidence in the case, the District Judge concluded that the conscience of the Court that the instrument so propounded is the will of a free capable testator is not satisfied, and, on this ground alone, he has dismissed the application for Letters of Administration.
(3.) THE main thing that seems to have weighed with the learned District Judge is that the Appellants had not informed other brOrs. and sisters about the death of the deceased. Appellant No. 2, who is the wife of Appellant No. 1, clearly deposed that she had informed all the relations of the deceased of his death by telegrams. But she could not produce receipts of the telegrams. On this point, therefore, the learned District Judge did not believe her. In our opinion, unless there is some evidence which contradicted it, the testimony ought to have been believed on this point. Respondent No. 2 did not dare come to the witness -box to depose that he did not receive any telegram of her brother's death.;

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