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TMI Blog2006 (4) TMI 551X X X X Extracts X X X X X X X X Extracts X X X X ..... n the estate of the deceased and consequently probate was granted to him on 18th October, 1984. One of the two daughters of the deceased, Mrs. A.J. Francis, filed an application, being No. 463/1985, in the probate proceedings praying that the probate granted to Joseph Antony Lazarus be revoked since she had not been made a party to the proceedings despite being the daughter of the testatrix. On 28th February, 1985, the learned Single Judge who had granted the probate earlier, revoked the said grant and upon such revocation, the application filed by Joseph Antony Lazarus was re-numbered as T.O.S. No. 11/1985 with Joseph Antony Lazarus as plaintiff and Mrs. A.J. Francis as the defendant, to consider the question whether the Will dated 5th July, 1979 said to have been executed by Mrs. Solomon Lazarus was valid and genuine or not or whether the Will had been vitiated by coercion and undue influence by the beneficiary therein. 3. For an understanding of the case made out by the parties, the facts in brief are set out hereinbelow:- Mrs. A.J. Francis, the respondent in this appeal, claimed in her application for revocation of the grant of probate in favour of Joseph Antony Lazarus t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efusal by the appellant. The respondent's husband thereupon filed a suit for declaration and possession, being O.S. No. 8861/1984 before the learned Judge, 12th Court, City Civil Court, Madras, in respect of the aforesaid house property situated at No. 9, III Cross Street, Trustpuram, Madras against the appellant herein and the other legal heirs of Mrs. Solomon Lazarus. The said suit is said to be pending final decision. 6. The respondent questioned the validity and genuineness of the Will said to have been executed by Mrs. Solomon Lazarus in respect of the aforesaid property considering the physical and mental state of the testatrix prior to her death from the year 1970 onwards. According to the respondent, the alleged Will could not have been executed by Mrs. Solomon Lazarus voluntarily and if at all the Will had been executed by her, it could only have been done under duress and coercion by the appellant herein and other family members who were residing with her at the time of her death. 7. On the other hand, it was contended on behalf of the appellant that the property in question belonged to the testatrix and that it was the appellant and his brother now staying in M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the appellant that despite her physical condition, she was mentally alert and was capable of understanding everything that she did. Despite the denial by the plaintiff's wife (PW-4), who was also an attesting witness and identifying witness, that the testatrix had undergone an operation before the registration of the Will, the Division Bench found that the testatrix had in the year 1975 fallen and broken her thigh bone for which she had to be taken to Vellore and operated upon. In the year 1979, the testatrix fell down again and broke the same bone after which she had to undergo an operation and steel plates had to be inserted in her thigh. 13. The Division Bench also took note of the fact that of the four sons of the testatrix, the plaintiff, namely, the appellant herein (PW-1) alone was residing in the suit house and that of the three other sons, Cecil Lazarus, the only other beneficiary under the Will, was residing in Sharjah, Saudi Arabia, while Benjamin Lazarus was residing at St. Thomas Mount, Madras and Thomas Lazarus was said to be staying in Deharan, Saudi Arabia. At the time of the execution of the Will on 5th July, 1979, in the suit house only PW-2, one Mr. N.K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vanced before the learned Single Judge of the Madras High Court in favour of grant of probate has also been advanced before us by Mr. K.K. Mani, learned advocate appearing for the appellant. The main thrust of his submission was that the testatrix was no doubt old and advanced in years, but there was no material to show that she had either lost or impaired her physical and mental faculties to such an extent as would prevent her from consciously executing the Will which had been drafted on her instructions. It was submitted that the Will had been duly proved by the attesting witnesses and by an independent witness, who was a Sub-Registrar and there was no reason to disbelieve his testimony. 18. On the question of two signatures appearing on each page of the Will, it was submitted that the same could not be said to have created any suspicious circumstances relating to execution of the Will since the attesting witnesses and the witness who had introduced the testatrix to the Sub- Registrar at the time of registration had all in one voice supported the case for grant of probate by deposing that the Will had been signed, executed and registered in their presence. It must be mentioned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Lazarus. Having regard to the peculiarity of the explanation sought to be given, we examined the photo copy of the Will which was in the records and to the naked eye it is quite evident that the two signatures are entirely different and have little or no likeness whatsoever. 21. The last and perhaps the most significant aspect of this matter is the failure of the appellant to examine the learned advocate who is said to have drafted the Will on the instructions of the testatrix and the non-examination of the Sub-Registrar before whom the Will is said to have been presented for registration. Both the said witnesses could have conclusively proved the facts relating to the preparation, execution and registration of the Will. In the absence of any evidence, we are unable to ascertain as to whether the Will was ever read over and explained to the testatrix before she is said to have executed and presented the same for registration. 22. The cumulative effect of all the circumstances taken together gives rise to a genuine doubt regarding the genuineness of the Will and as to whether the same had, in fact, been executed by the testatrix and, if so, of her own free volition. 23. In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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