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2012 DIGILAW 837 (BOM)

Oscar Mascarenhas v. Collin Joseph Mascarenhas

2012-04-20

A.P.LAVANDE

body2012
Judgment 1. Heard Mr. V. Menezes, learned Advocate for the petitioner and Mr. M. P. Almeida, learned Advocate for respondent nos.1 and 2. 2. By consent of learned counsel for the parties, the petition is taken up for final disposal. Hence Rule. Heard forthwith. 3. By this petition under Article 227 of the Constitution of India, the petitioner challenges order dated 16.4.2011 passed by Civil Judge, Senior Division, Margao in Regular Civil Suit No. 121/2004/A by which an application dated 29.11.2010 filed by the present petitioner to bring him on record as legal representative of the original plaintiff has been dismissed. 4. Briefly, the facts leading to filing of the present petition are as under: “Fr. Jose Antonio Minguel Emiterio Mascarenhas filed the above Civil Suit against respondent nos.1 and 2/defendants nos. 1 and 2 seeking declaration that a sale deed, deeds of rectification and deed of gift purported to have been executed by him in favour of defendant nos. 1 and 2 be declared null and void.” 5. The suit was contested by respondent nos.1 and 2 to whom the properties were sold/gifted. While the evidence of the plaintiff was being recorded the original plaintiff expired on 21.10.2010 and on 29.11.2010 the present petitioner claiming to be legatee pursuant to the Will dated 21.9.2006 executed by the original plaintiff sought to bring himself on record as legal representative of the original plaintiff. The said application was opposed on behalf of defendant nos.1 and 2/respondent nos. 1 & 2 herein primarily on the ground that the original plaintiff was of unsound mind at the time of execution of Will in favour of the present petitioner. 6. The learned Judge by impugned order dated 16.4.2011 dismissed the application primarily on the ground that the Will could not be taken into consideration since it was executed by plaintiff when he was mentally imbalanced. 7. Having heard learned Counsel for the petitioner & learned Counsel for the respondent nos. 1 and 2 and having perused the record, I am of the considered opinion that the impugned order is patently unsustainable in law. 7. Having heard learned Counsel for the petitioner & learned Counsel for the respondent nos. 1 and 2 and having perused the record, I am of the considered opinion that the impugned order is patently unsustainable in law. Learned Judge has relied upon proceedings in the suit which discloses that the plaintiff who was under examination in the year 2010, did not appear to be mentally sound and based on this fact learned trial Court has come to the conclusion that original plaintiff was mentally imbalanced at the time of execution of Will dated 21.9.2006 and consequently the Will could not have been relied upon by the present petitioner. 8. The finding recorded by learned Trial Judge is patently unsustainable in law. Merely because, the original plaintiff was not in very sound state of mind in the year 2010 no inference can be drawn that the plaintiff was mentally imbalanced in September, 2006 when the Will was executed by the original plaintiff in favour of the petitioner. This is a matter which requires evidence to be led by the parties. Therefore, on this short ground alone, the impugned order is liable to be quashed and set aside. 9. For the reasons aforesaid, the impugned order dated 16.4.2011 passed by the learned Civil Judge Senior Division, Margao in Regular Civil Suit No. 121/2004/A is quashed and set aside and petitioner is permitted to bring himself on record as legal representative of the original plaintiff. Needless to mention that all the contentions of respondent nos. 1 and 2 are kept open & respondent nos. 1 and 2 are permitted to file additional written statement in view of the stand taken by them that the original plaintiff was of unsound mind and could not have executed the Will in favour of the petitioner. Petitioner to carry out amendment to the cause title of the suit within a period of six weeks. Respondent nos. 1 and 2 and other defendants in the suit if they so desire to file additional written statement on or before the date fixed for appearance of parties. The order of abatement of the suit passed by the trial Court is also quashed and set aside and matter remanded to trial Court for disposal in accordance with law. 10. Parties to appear before the trial Court on 5.6.2012 at 10.00 a.m. 11. The order of abatement of the suit passed by the trial Court is also quashed and set aside and matter remanded to trial Court for disposal in accordance with law. 10. Parties to appear before the trial Court on 5.6.2012 at 10.00 a.m. 11. Rule is made absolute in the aforesaid terms with no order as to costs. 12. Writ Petition stands disposed of.