The plaintiff (original petitioner) had filed testamentary petition interalia praying for probate of the Will and Testament dated 26th May 1986 of the deceased Mrs. Ermina Pinto D'Souza. Some of the relevant facts for the purpose of deciding this suit (original petition) which emerge from the record are as under :

2. Father of the plaintiff and the defendant acquired plot No.170171 from Salesette Co-op. Hsg. Society Ltd., situated at 18, St. Andrews Road, Bandra (West), Mumbai 400 050 and a structure standing thereon which is known as 'Hermine Villa'. In the year 1956, defendant left India for employment and settled down in Canada. On 18th October 1975 father of the plaintiff and defendant died leaving behind his wife Mrs. Ermina Pinto D'Souza, three sons and one daughter. On 26th May 1986, Mrs. Ermina Pinto D'Souza (hereinafter referred to as 'the said deceased') executed a Will and Testament. On 10th January 1987 the said deceased expired leaving behind her three sons and one daughter. Plaintiff and defendant are two of the sons of the said deceased.

3. Sometime in the month of June 1988, plaintiff filed a probate petition in this Court which was numbered as 283 of 1991 interalia praying for probate of the alleged Will of the said deceased. On 6th November 1992, citation came to be issued in the said probate petition. On 22nd December 1994, plaintiff made an application for amendment of probate petition. Plaintiff discharged his advocate and started appearing in person. On 22nd December 1994, the plaintiff has alleged to have filed a consent affidavit alleged to have been signed by the defendant giving his no objection in favour of the plaintiff and waived citation of the petition. On 22nd December 1994, plaintiff filed consent affidavit of his sister Mrs. Silvia Fernandes giving her no objection for grant of probate in favour of the plaintiff and according her consent of the same. By the said affidavit, the said Mrs. Silvia Fernandes also waived service of citation of petition upon her.

4. According to plaintiff, plaintiff did not have an address of the defendant who was staying at Canada and sought to place the address of the defendant by seeking amendment to the petition which was carried out on 24th December 1994. On 28th December 1994, this Court granted probate in favour of the plaintiff in respect of the Will and Testament alleged to have been left by the said deceased. On 31st March 2005, the defendant issued a notice to the plaintiff and other legal heirs of the said deceased asking for various details and informed that plaintiff would take appropriate legal action against them for partition and separate possession of his share in all the immovable properties and for recovering his share in movable properties left behind by the parents.

5. The Constituted Attorney of the defendant addressed a letter to the society on 12th March 2005 requesting for inspection of the documents pertaining to the said immovable property situated at Bandra and in respect of which the said deceased was the member of the said society. On 5th July 2005, constituted attorney of the defendant made an application for certified copy of the proceedings in petition No.283 of 1991. On 13th July 2005, the said constituted attorney took inspection of the proceedings of this petition. On 14th July 2005, defendant issued a legal notice to the plaintiff stating that the defendant never executed any consent affidavit in favour of the plaintiff and that the same was forged and fabricated with a view to obtain probate by the plaintiff. On 12th August 2005 and 17th August 2005, plaintiff replied to the aforesaid notice alleging that plaintiff was not aware of the alleged consent affidavit dated 22nd December 1994. On 6th September 2005, defendant was issued a certified copy of this proceedings by the Prothonotary & Senior Master of this Court. Sometime in the year 2005, defendant filed petition (55 of 2005) in petition No.283 of 1991 interalia praying