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CASE NO.: Appeal (civil)  4009 of 1998

PETITIONER: Joseph Antony Lazarus (Dead)By Lrs

RESPONDENT: A.J. Francis

DATE OF JUDGMENT: 03/04/2006

BENCH: B.P. Singh & Altamas Kabir

JUDGMENT: J U D G M E N T

Altamas Kabir, J.

       One Mrs. Solomon Lazarus  was the owner of Plot No. 85,  Trustpuram Scheme, since re-numbered as  No.9, III Cross  Street, Trustpuram, Kodambakam, Madras \026600024.  She  died on 27th November, 1983 at Madras leaving behind her  surviving two daughters, namely, Mrs. Wood and Mrs. A.J.  Francis  and four sons, namely, Joseph Lazarus, Cecil  Lazarus, Benjamin Lazarus  and Thomas Lazarus.  It appears  that Mrs. Solomon  Lazarus executed a Will dated 5th July,  1979 in the presence of witnesses, but the same was  registered with the Sub-Registrar, Kodambakam, on 7th July,  1980.         One of the sons of the  deceased, Joseph Antony Lazarus  applied for  grant of probate of  the Will on 18th October, 1984  and the same was numbered as O.P. No. 300/1984.  In his  application, the propounder  did not disclose the names  of  any other p ersons having an interest in 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  Jospeh 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.         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 that her mother,  Mrs.  Solomon Lazarus, was working as a House Keeper  in Raj  Bhavan, Madras, on a meagre salary and had retired from  service in the early 1950s.   The elder sister of the respondent  was married in 1951 and had left the family.   The respondent  was married  to one D.A.J. Francis who was working as II  Engineer on a vessel which required him to leave India from

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time to time.  As a result, the respondent  was staying with her  mother   in Madras.  The further case  made out by  the  respondent is that in 1955 her husband applied to the City  Improvement Trust, Mount Road, Madras, to   enable him to  get a house-site allotment in the city of Madras.  Pursuant  thereto, he was allotted Plot No.85, Trustpuram  Scheme  which was subsequently re-numbered   No.9, III Cross Street.  Trustpuram, Kodambakam, Madras- 600024, which was the  subject-matter of  the purported Will.         It was also the case of the respondent that in 1956 upon  the City Improvement Trust insisting that only residents of the  city of Madras were eligible to be included in the housing  scheme contemplated by the City Improvement Trust, the  respondent and her husband decided to transfer the   allotment standing in the name of  D.A.J. Francis  to  Mrs.  Solomon Lazarus  on the understanding that Mrs. Solomon   Lazarus would be permitted to stay and enjoy the property till  her life time and after her death it would be  handed  back to   D.A.J. Francis, the respondent’s husband.  As the only  earning member in the family at the relevant time, the  respondent’s husband continued to pay  all the installments to  the City Improvement Trust as decided in the family  arrangement.  On the basis of the aforesaid decision, the  respondent’s husband wrote to the Chairman of the City  Improvement Trust on 7th May, 1956 requesting him to  transfer the allotment of the plot in favour of   Mrs. Solomon  Lazarus.  The plot was accordingly transferred in the name of  Mrs. Solomon Lazarus.         Subsequently, the respondent’s husband got a job in  Madras but the respondent  and her husband stayed in rented  accommodation since the house  at No.9, III Cross Street,  Trustpuram,  was not sufficient to accommodate all the  members of the family.  However, on the death of  Mrs.  Solomon Lazarus on 27th November 1983, the respondent  requested the appellant herein to make over  vacant  possession  of  the house  to her  husband, but such request  was met  with refusal 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.         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.         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 Muscat who had paid the installments of the house  property  and had looked after and cared for the testatrix till  her death.  It was in  recognition of the said fact that  Mrs.  Solomon Lazarus had executed  a Will bequeathing the said  house property to the respondent and his brother, Cecil  Lazarus, and made  both of them  executors of her  said Will.   The appellant also claimed that as would appear from the  recitals in the Will, the testatrix had mentioned the fact that

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her  two daughters had been married and had been provided  for and that the appellant and the said Cecil Lazarus had not  only looked after and cared for her but had also paid the  installments for the house in question.         It was in this background that the learned Single Judge   decided the suit in favour of the appellant herein upon holding  that there were no  suspicious circumstances which were  sufficient  in itself to indicate that the Will was not genuine.   On the other hand, the learned Single Judge held that that the  plaintiff had been able to prove the proper execution and  attestation of the Will and was, therefore, entitled to  grant of  probate of the Will.         In arriving at the aforesaid finding, the learned Single  Judge also came to the conclusion that the testatrix was  sufficiently in possession of her   mental faculties to execute  the Will and that there was no evidence to indicate that the  testatrix was under the control of the appellant herein or that  she was  physically or mentally  incompetent  to execute the  Will.         Even on the question of coercion  and undue influence,  the learned Single Judge was satisfied that such an allegation   had not been proved.  The learned Judge held that the  defendant, namely, the respondent herein had miserably   failed to prove  that influence had been exercised by the  appellant herein on  the testatrix and  that the Will  was the  result of such influence.         The respondent herein  preferred an appeal before the  Division Bench of the High Court  of Judicature at Madras,  being O.S.A.No.45/1991.  Upon  consideration of the case   made out by the respective parties, the Appeal Court reversed   the findings of the   learned Single Judge and dismissed the  appellant’s application for grant of probate on various  grounds.         The Division Bench firstly noticed that at the relevant  time, the testatrix was 83 years old and not fully fit   physically, notwithstanding the case 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.         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. Sami,   the plaintiff and his wife (PW-4) were present.  The Will is said   to have been drafted on the instructions  of the testatrix by an  advocate, Mr. K. Venkataraman.  The Division Bench noted  that neither the learned advocate who has said to have drafted  the Will nor the Sub-Registrar before whom the Will was  registered, had been examined as witnesses  on behalf  of the  plaintiff/appellant.  The Division  Bench  concluded that there  was  no proof that the document had ever been read over and  explained to the testatrix before the same was registered.

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       Apart from the above, the Division  Bench commented on  the fact that admittedly  Cecil Lazarus had gone to Sharjah in  Saudi Arabia  in or about the year 1963 and  there  was no  evidence  to show that he had been  sending any remittance   from Sharjah  to the testatrix.  Furthermore, although the  testatrix had two other sons, besides the  two beneficiaries  under the Will, there is absolutely no reference to the two  other sons in the Will  as to why they were being  excluded   from the Will and were denied  their share in the property.         The last circumstance which weighed with the Division  Bench was  the fact that the testatrix is alleged to have signed  the Will as Mrs. M. Solomon  Lazarus, whereas according to  the respondent herein, she always  signed her name as Mrs.  Solomon Lazarus.   It was noticed by the Division Bench that  the testatrix purportedly signed  as Mrs. M. Solomon Lazarus  on the different pages of the Will and  twice on each page \026  once when the Will was executed and next on the request  made by the Sub-Registrar before  whom  the Will was  registered.  The Division Bench took note of  Ext.D-2,  a postal  acknowledgement,  where  the testatrix has signed as Mrs.  Solomon Lazarus,  in coming to the conclusion that there was  considerable   doubt    about the genuineness of the disputed  Will.         Since the Will came from the custody of the plaintiff, the  appellant herein,  (PW-1), the Division Bench also took note of  the fact that the Will had not been disclosed  by the appellant  till such time when  the respondent’s husband called upon  him      to vacate the suit property.  The Division Bench set  aside the judgment and decree of the learned Single Judge on  the aforesaid findings  and the present appeal is directed  against the said judgment of  reversal of the Division Bench of  the Madras High Court.         The same submissions as were advanced 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.         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 at this stage that despite  service of notice no one has appeared to represent the  respondent during the hearing.  In such circumstances, the  responsibility of looking  into the genuineness  of the Will  becomes all the more onerous  and the entire circumstances  leading to the  execution   and registration of the Will  has got  to be scrutinized carefully.         It will be injudicious to suggest, as has been held by the  learned Single Judge of the Madras High Court, that there are  no suspicious circumstances surrounding the execution and  registration of the Will.  It  is difficult to understand  as to why  the  testatrix    omitted to mention two of her sons in the Will

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although she has taken great pains  to mention the fact  that  the appellant herein and her other son, Cecil Lazarus, had  looked  after her and had paid all  the  installments towards  the house property, even  though Cecil Lazarus had gone to  Sharjah as far as back as  in  1963 and only the appellant was  living with her  in the house  being  the subject matter of the  bequest in the Will.  That  the testatrix was of very advanced  age  is admitted.  It is also established that she had  suffered a  fall and had  broken her  thigh bone  twice and that she had to  be operated on both the occasions and that she  was keeping  indifferent  health from after  her first fall.  That by itself may  not be   sufficient to prove that she was incapable of executing  the Will, but  the defendant’s contention    that the appellant  took  advantage of the  mishap and the subsequent    dependence of the  testatrix  to influence  her to make the Will  in his favour and  in favour  of  another brother who was not  even residing in India will have to be taken  into consideration  while deciding  the aforesaid question.   Apart from the above circumstances, what is perhaps of  even more significance  is the  existence of the two signatures   on each page of the Will, said to be those of the testatrix.  It  may be remembered that while the Will is dated 5th July, 1979,  the same was registered on 7th July, 1980 after more than a  year.  Except for the Will, no other  document has been  produced by the appellant to indicate that the deceased  ever  signed her name as Mrs. M. Solomon Lazarus notwithstanding  the fact that it was attempted to be  explained that her middle  name was Martha  and  that at times she signed her name as  Mrs. M. Solomon Lazarus and at other  times simply as Mrs.  Solomon 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.         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.         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.         In the circumstances aforesaid, we see  no reason to  differ from the view taken by the Division Bench  of the  Madras High Court.  Consequently, the appeal stands  dismissed, but in  the facts and circumstances of the case the  parties will bear their own costs.