Max Cajeton Travasso of Bombay Indian Christian Inhabitant and Peter Cajetan Travasso of Bombay Indian Christian Inhabitant Vs. Mrs. I. Fernandes - Court Judgment

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family - last will and testament of deceased - legality of execution and genuineness of the will - sections 59 and 63 of indian succession act, 1925 read with section 68 of the evidence act, 1872 - petitioners are the sons of the deceased who executed the last will and testament - respondent challenges the execution of the will as it is not duly executed - whether defendant proved that the last will is duly executed - held, there are no suspicious circumstances made out and /or even proved by the defendant except by raising the averments - deceased was fit in mental capacity to sign the will - plaintiffs proved the requisite facts necessary to support the genuineness of the will - petition allowed - code of criminal procedure, 1973 [c.a. no. 2/1974]. section 41: [ swatanter kumar, cj, smt ranjana desai & d.b. bhosale, jj] arrest of accused - held, a police officer or a person empowered to arrest may arrest a person without intervention of the court subject to the limitations specified under the provisions of the code. the provisions of section 41 of the code provides for arrest by a police officer without an order from a magistrate and without a warrant. a distinct and different power under section 44 of the code empowers the magistrate to arrest or order any person to arrest the offender. under section 44 of the code, that power is vested in the court of the magistrate when an offence is committed in his presence. if the legislature has taken care of providing such specific power under section 44 of the code, then there could be no reason for such a power not to be specified under the provisions of chapter xii of the code. in terms of section 41, a police officer may arrest a person without a warrant or order from the magistrate for any or all of the conditions specified in that provision. language of this provision clearly suggested that the police officer can arrest a person without an order from the magistrate. thus, there appears to be no reason why on the strength of section 156(3) of the code, any restriction should be read into the power specifically granted by the legislature to the police officer. of course, freedom of investigation is the essence of these provisions but in order to suppress the mischief it is sufficiently indicated under different provisions of the code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. some kind of inbuilt safeguard is available to the accused in the cases where the magistrate directs investigation under section 156 (3) of the code by taking recourse to the provisions of section 438 of the code by approaching the court of session or the high court for such relief. thus, during the course of investigation of a criminal case, an accused is not remediless and that would further buttress the above view. [jagannath singh v dr. ajay upadyay & anr 2006 cri lj 4274; 2006 (5) air bom r held per incuriam]. - the defendant failed to prove that the signature on the acknowledgments are not of her. the defendant failed to rebut the said presumption. the deceased had executed the will by appending her signature to the foot of will, as well as, putting a thumb impression on each page of the will. she stated that the deceased was admitted to hospital prior to her death because of her kidney's failure, but she also stated that the deceased was in a position to walk. the defendant miserably failed to prove that the will was not duly executed also on the following reasons: the case that there is nothing mentioned in the will that her physical or mental condition was well is unacceptable. ] 10. the defendant failed to prove that she was not in sound disposing mind at the time of execution of the will or any suspicious circumstances sufficient to raise doubts. samsher singh (2009) 3 scc 687, in the present facts are distinct and distinguishable as she failed to bring on record even the suspicious circumstances as recorded in para 23 of the said judgment. the defendant failed to prove that the last will was not duly executed by the deceased.anoop v. mohta, j.1. this is a suit/petition for probate of the last will and testament of mrs. bella cajeton travasso alias bella c. travasso alias b. c. travasso of bombay, indian christian, a widow, residing at mahim, bombay. she died at bombay on 10th december, 1984 leaving behind two sons who are plaintiffs in the suit and 5 married daughters. the will is dated 01.01.1983. the plaintiffs being the executors and trustees, therefore, applied for probate by filing the petition in this court. mrs. iolante i. regina alias mrs. agnes fernandes, the defendant/caveator, the sister of the petitioners/plaintiffs filed caveat in form no. 116 and an affidavit in support thereof. therefore, the petition was numbered as suit.2. initial issues were framed on 10.12.2007 which are as under:(1) does the plaintiffs prove that citation was served upon the caveator/defendant? yes.(2) does the defendant proves that the last will and testament of bella cejetan travasswo alias bella c. travasso dated 01.01.1983 was not duly executed by the deceased? nolater on, on 09.01.2009, one additional issue was framed which is as under:(1a) do the plaintiffs prove that the will dated 1.1.1983 purported to be executed by bella c. travasso was the last will & testament? yes3. the plaintiffs/petitioners led evidence of three witnesses namely pw 1max cajeton travasso, pw 2suresh mahadev darekar and pw 3prakash prabhakar pandit. the caveator/defendant examined herself only. (dw 1).issue no. 1:4. in support of issue no. 1, the plaintiffs have examined mr. suresh (pw 2). the acknowledgments show the evidence of service of citation against the person named in the affidavit are marked at exhibits pa1 to pa23. the said evidence read with the documents proves the case of the plaintiffs and nothing contra could be extracted in the crossexamination. the service of citation is proved. the defendant failed to prove that the signature on the acknowledgments are not of her. in absence of any contramaterial and specially when there is ample evidence and the documents on record to support the service as referred above. the presumption is also in favour of service. the defendant failed to rebut the said presumption. even otherwise, now, as the caveator/defendant appeared and contested the matter, that issue about nonservice or improper service of citation need no further discussion. issue no. 2 and 1a : both these issues are interlinked and interconnected, therefore, common reasoning.5. the plaintiffs have led the evidence of two witnesses; pw 1 max travasso (the petitioner) and pw 3 - prakash pandit (advocate - attesting witness). there is sufficient evidence on record to show that the deceased was residing with him at his house at girgaonkar wadi, on 1.1.1983, when the testamentary instrument/the last will was executed at their residence in his presence and also in the presence of his brother peter and late philomena max travasso, late maria peter travasso and the two other family members. the deceased had executed the will by appending her signature to the foot of will, as well as, putting a thumb impression on each page of the will. their family advocate mr. pandit (pw 3) also put his signature on each page of the will and at the foot of the will dated 1.1.1983 as an attesting witness. bella travasso expired on 10th december, 1984 and at that time she was 71 years old. her health at the time of death was fragile. mr. max travasso is aged 82 years. he confirmed that the will was typed in the office of family advocate mr. prakash pandit and mr. vijay pandit who are also attesting witnesses to the will, who also stated that thumb impression was also taken in the office of mr. pandit. he further stated that the testamentary instrument was executed at the residence of travasso at girgaonkar wadi.6. pw 3mr. prakash pandit, an attesting witness, stated that he executed the testamentary instrument, at her residence, in the presence of mr. vijay pandit also. he also stated that the deceased put her thumb impression and subscribed her name at the foot of the will. it is also stated that the thumb impression and the additions and date written in ink existed at the time of the execution of the will. as the deceased was old and not able to put her signature properly, she also put her thumb impression on the testamentary paper. it is specifically deposed that the deceased was of sound memory and mind and with understanding executed the same of her free will and pleasure. pw 3 has deposed that on the last page of the will, the thumb impression and signature are of the deceased. on pages 1, 2 and 3, she had put her thumb impression only and this was done in his presence. merely because he was unable to state who drafted the will or whether it was typed in the office that itself is not sufficient to discard his evidence. he further stated that the legal firm was looking after the affairs of max travasso since long. he answered to the court's question that the thumb impression was put at the residence of the deceased when he had visited her house. dw 1/defendant admitted that she got married in 1952 and thereafter she left india. she stated that the deceased was admitted to hospital prior to her death because of her kidney's failure, but she also stated that the deceased was in a position to walk. she stated that her mother's hands were trembling because of consuming country liquor for a long time. there is no material brought on record to show that the deceased was scared of the petitioner/plaintiff. her evidence about her illhealth was on the basis of her observation of mother's movement. the defendant miserably failed to prove that the will was not duly executed also on the following reasons:(1) the deceased executed the will on 1.1.1983, but died on 10.12.1984;(2) from 1952 to 1984 the defendant visited india only on holidays;(3) there is no contra material or evidence brought on record to show that the deceased was not mentally fit and capable to execute the will;(4) the execution of the last will in question remained uncontroverted;(5) she also admitted that she was not in touch with father and the petitioners/plaintiffs used to take care of the deceased;(6) in the will, the married daughters have been provided with some fixed amount.7. in the above background, it is difficult to accept the case of the defendant to discard the will on the ground that it is nowhere mentioned/stated by any of the witnesses that the last will was read over to the deceased. there is nothing on record to show that she was illiterate and/or was not in a position to understand and/or read english being christian. the case that there is nothing mentioned in the will that her physical or mental condition was well is unacceptable.8. the minor discrepancy in evidence, in the present facts and circumstances, are inconsequential or at least are not sufficient to accept the case of the defendant. the contradiction and discrepancy between max (pw 1) and pw 3, in regard to the place of execution of the will, in the present case, is also not sufficient to discard the execution of genuine will.9. all the ingredients, as contemplated under sections 59 and 63 of the indian succession act, 1925 read with section 68 of the evidence act and as elaborated in savithri and ors. v. karthyayani amma and ors. (2007) 11 scc 621, have been complied with. there are no suspicious circumstances made out and/or even proved by the defendant except by raising averments. on the contrary, there is sufficient compliance as the testator had signed and affixed her thumb impression/signature in the presence of attested witnesses to have also seen and signed the said will, as per the direction of the testator and the evidence was led accordingly which remained uncontroverted. a factor that the testator died after 22 months from the date of the will is also important for rejecting the case of defendant and for accepting the case of the plaintiffs. in the present case, there are no suspicious circumstances surrounding the execution of the will. she was in fit and mental capacity to sign the will. mere raising doubt and expressing own observation as done in the present case by the defendant is not sufficient. in the present case, on the contrary, the plaintiffs proved the requisite facts necessary to support the genuineness of the will. : (2005) 1 scc 280 - meenakshiammal (dead) thorugh lrs v. chandrasekaran and anr. ]10. the defendant failed to prove that she was not in sound disposing mind at the time of execution of the will or any suspicious circumstances sufficient to raise doubts. the decision as cited by the defendant on bharpur singh and ors. v. samsher singh : (2009) 3 scc 687, in the present facts are distinct and distinguishable as she failed to bring on record even the suspicious circumstances as recorded in para 23 of the said judgment. in the present case, the plaintiffs have proved the legality of the execution and genuineness of the will as contemplated and as recorded in k. laxmanan v. thekkayil padmini and ors. : (2009) 1 scc 354; anil kak v. kumari sharada raje and ors. : (2008) 7 scc 695 and in niranjan umeshchandra joshi v. mrudula jyoti rao and ors. (2006) 13 scc 433.11. in view of the above, the plaintiffs prove that citation was duly served upon the defendant. the defendant failed to prove that the last will was not duly executed by the deceased. the plaintiffs prove that the will dated 1.1.1983 was the last will executed by the deceased bela cajeton travasso.order12. the caveat is dismissed. the testamentary suit/petition is allowed. a probate of administration of the last will of the deceased mrs. bella cajeton travasso dated 01.01.1983 be issued in accordance with law.13. no costs.