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 in