Chetan Calvin Nazareth VS Lena John D Souza

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

G.S.PATEL
Chetan Calvin Nazareth – Appellant
Versus
Lena John D Souza – Respondent

Advocates:
Counsel for the Parties:
For the Petitioner:Mr. Darryl B. Pereira, Advocate
For the Deceased: Mr. Ajay Talreja with Anil Jakatdar, for the Caveator

JUDGMENT

G.S. Patel, J.—This is a probate petition. The probate Petitioner (“Nazareth”) is an Australian resident. He was appointed as the sole executor of a Will allegedly dated 23rd December 2013, said to have been made by one Lena John D’Souza. Nazareth applied for probate. This was/is opposed by one Maureen Jyothi Furtado, one of the two heirs who survived Lena. Apart from Maureen there is one other heir, Lolita Kiran Lazrado. Maureen also lives in Australia. Lolita is apparently in Mumbai, though presently with her son, also in Australia.

2. All concerned, including the Testator, Lena, are Christians.

3. The Advocate for the Petitioner says that the heirs are ‘not co-operating’.

4. The Application today is for an ‘unconditional withdrawal’ of the probate petition. On a correct reading of the Succession Act, 1872, I believe that is impermissible.

5. To appreciate the contours of the controversy, a few sections of the Succession Act need to be considered. These are Sections 57, 213, 222, 227, 229 and 231.

6. Section 57 is in Part VI, which deals with Testamentary Succession. Some portions of Part VI set out in Schedule III (and subject to the restrictions there, with which we ar