The main legal principle established in the judgment is that in contested probate matters, the evidence of the attesting witness must be taken first before the propounder of the will is examined. The execution of the will must be proved before the will is marked as an exhibit in evidence.

1. The question that has arisen during the trial of this contested probate action is one that is likely to affect a very large number of similar contested testamentary matters. The question is this: in such matters, i.e., contested matters seeking probate or Letters of Administration with Will annexed, is it necessary that the evidence of the attesting witness be taken first, before the evidence of the Plaintiff (original Petitioner)?

2. The context in which this question arises is this. The Plaintiff, Walter D’Souza, (“Walter”) is the brother of the deceased testatrix, one Lydia D’Souza (“Lydia”), who died in Mumbai on 17th June 1995. Walter says Lydia left a will dated 2nd November 1983, one that he propounds in the petition. The caveatrix, Alba D’Souza (“Alba”) is Lydia’s sister-in-law, i.e., Lydia’s brother’s widow. Lydia’s brother (Alba’s husband), Victor D’Souza, died before Lydia. Alba passed away after she filed her caveat. Her three children, Anita, Valerian and Vitrus filed caveats (the two sons filing a joint caveat) and, adopting Alba’s contentions, continued the opposition to the probate petition.

3. Issues were struck on 1st October 2010. The Plaintiff, Walter, filed an evidence affidavit dated 26th November 2010 and an accompanying compilation of documents. These were suitably marked in evidence or for identification on 27th October 2014. There is also on file the affidavit dated 26th November 2010 of one Vasant G. Farad, an attesting witness to the will in question. The matter was then ultimately placed for cross-examination of the Plaintiff in Court on 11th November 2014.

4. The original will is lodged in the registry and assigned a filing number. On 27th October 2014, I assigned it a number in the trial, viz., Exhibit “P-1”, clarifying that this was only for convenience and ease of reference and that this marking did not mean that the Will had been received in evidence or proved.

5. On 11th November 2014, Mr. D’Mello, learned Advocate for the Plaintiff, tendered the Plaintiff for cross-examination. Mr. Narula, learned Advocate for the Defendants, was prepared to cross-examine him. Before he could begin, however, it was found that the will in question had till then not been marked in evidence. It was only marked for identification. I pointed out to Mr. Narula that should he, in these circumstances, show the Will to the witness and put to him any questions to him, or confront him with it or any part of it, I would have no choice but to then receive the Will in evidence as his, i.e., the Defendants’ document. At that point, the challenge to the probate action would instantly fail and the inevitable consequence would be a dismissal of the caveats. Mr. Narula fairly stated that he did indeed have questions for the Plaintiff on the will, especially since Issues Nos. 2 and 3 related to Lydia’s state of mind and mental capacity and whether the will was invalid as having been procured by force and coercion. His submission then was that in such a situation, he would have no choice but to seek leave to cross-examine the Plaintiff twice, the latter portion of his cross-examination being reserved till after the will was received in evidence.

6. This is not an uncommon situation. Indeed, it occurs in practically every single contested testamentary mater. Our practice on the Original Side is that the original will is deposited with the Prothonotary and Senior Master. Every will so deposited is given a unique filing number. In Court and at the trial however, the will is frequently not marked for identification and almost never as an exhibit. In fact, I have before me, at least one case where an entire trial has been completed without the original will ever being retrieved from the Registry and shown to a single witness. Therefore, the first step, as a matter of procedure, must be to uniquely identify the will as a document in the trial. It is not sufficient merely to have a filing number of the will. A linkage mus