JOSEPH ANTONY LAZARUS (DEAD) BY LRS.versusA.J. FRANCIS

                JOSEPH ANTONY LAZARUS (DEAD) BY LRS.                              A
                                         V.

                                  A.J. FRANCIS

                                  APRIL 3, 2006

                   [B.P. SINGH AND AL TAMAS KABIR, JJ.]                           B

           Will-Genuineness of-Testatrix had two daughters and/our sons-Will
    purported to have been executed by testatrix in favour of one son bequeathing
    suit property-Application for grant of probate filed before Court by the son C
    without disclosing the names of others who had interest in the suit property-
    Probate was granted but later revoked on the application for revocation filed
    by one of the daughters-Daughter contending that her husband had paid the
    instalments for purchase of the suit property; that the Will was not executed
    by the testatrix voluntarily as she was not physically and mentally fit before
    her death; and that the son had exercised coercion and undue influence on the D
    testatrix for execution of the Will in his favour-Trial Court held in favour of
    the son-High Court held in favour of the daughter-Correctness of-Held,
    on facts, signatures in the Will are not corresponding to the actual signature
    of the testatrix-Advocate, who drafted the- Will at the instance of the testatrix
    and the Sub-Registrar before whom the Will was registered, was not examined- E
    Besides there are other suspicious circumstances surrounding the execution
    and registration of the Will-Hence, there is doubt regarding the genuineness
    of the Will and execution of the same by the testatrix of her own free volition.

           One S died leaving 'behind her two daughters and four sons. S was
    purported to have executed a Will in the presence of witnesses bequeathing · F
    suit house property in favour of appellant, who is one of the sons. The Will
    was registered after one year of the execution of the Will. The appellant filed
    an application for grant- of probate of the Will before High Court without
    disclosing the names of other persons having an interest in the suit property
    of the deceased. The probate was granted in favour of the appellant.
    Respondent, who is one of the daughters, filed an application in the probate G


-   proceedings seeking revocation of the probate granted to the appellant since
    it has been obtained without making her a party to the proceedings. The Single
    Judge revoked the probate and re-numbered the application to consider
    whether the Will said to have been executed by the testatrix was valid and
                                        709
                                                                                  H
    710                              SUPREME COURT REPORTS [2006J 3 S.C.R.

A   genuine or not and whether the Will had been vitiated by coercion and undue
    influence.

           The respondent contended that the suit property was allotted by the
    State on the application made by her husband; that since the State insisted
    that only residents of the city were eligible to be allotted house sites, she and
B   her husband decided to transfer the allotment to her mother on the
    understanding that she would be permitted to stay and enjoy the property
    till her life time and after her death, it would be handed back to her husband;
    that her husband paid all the instalments to the State for the suit property;
    that she stayed with her husband in a rented accommodation since the suit
C   property was not sufficient to accommodate all the members of the family;
    that after the death of her mother, the appellant refused to vacate the suit
    property for occupation of the respondent; that she filed a suit before trial
    court against the appellant for possession, which is pending; that the alleged
    Will could not have been executed by her mother voluntarily since she was
    not physically and mentally fit for almost thirteen years before her death;
D   and that if the Will had been executed by her, it could only have been done
    under duress and coercion.

          The appellant contended before the High Court that his brother and
    himself together paid the instalments of the suit property to the State and
    looked after their mother till her death; that his mother executed the Will in
E   favour of his brother and himself in recognition of the said fact which was
    also stated in the Will.

           Single Judge of the High Court decided the suit in favour of the
    appellant holding that there was no suspicious circumstances which were
F   sufficient in itself to indicate that the Will was not genuine; that the appellant
    was able to prove the proper execution of the Will; that the testatrix was
    sufficiently in possession of her mental faculties to execute the Will; that there
    was no evidence to indicate that the testatrix was under the control of the
    appellant or that she was physically or mentally incompetent to execute the
    Will ; and that the respondent has failed to prove that the appellant had
G   exercised coercion and undue influence on the testatrix.

          The respondent filed an appeal before the Division Bench of the High
    Court, which reversed the findings of the Single Judge and dismissed the
                                                                                         -
    appellant's application for grant of probate. The High Court observed that
    the testatrix had suffered a fall and had broken her thigh bone twice; that
H
                JOSEPH ANTONY LAZARUS (DEAD) BY LRS. "· A.J. FRANCIS            71 J

    she had to be operated on both the occasions and that she was keeping               A
    indifferent health after her first fall; that neither the advocate who drafted
    the Will on the instructions of the testatrix nor the Sub-Registrar, before whprn
    the Will was registered, had' been examined as witnesses on behalf of the
    appellant; that there was no proof that the document had ever been read over
    and explained to the testatrix; that there is no proof of the brother of the
    appellant, who is also a beneficiary of the Will and is staying abroad, sending     B
    any remittances to the testatrix for payment of instalments; that there is
    absolutely no reference of other two sons of the testatrix in the Will as to why
    they were being excluded and denied their share in the property; that the
•   signature of the testatrix in the Will does not tally with her actual signature;
    and that the Will had not been disclosed by the appellant till such time when       C
    the respondent's husband called upon him to vacate the suit property. Hence
    the appeal.

          Dismissing the appeal, the Court

           HELD: I. I. It will be injudicious to suggest that there are no suspicious   D
    circqmstances surrounding the execution and registration of the Will. It is
    difficult to understand as to w1Jy the testatrix omitted to mention two of her
    sons in the Will although she has taken great pains to mention the fact that
    the appellant herein and her other son had looked after her and had paid all
    the instalments towards the house property even though the other son had
    gone out of India way back and only the appellant was living with her in the        E
    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
    after her first fall. That by itself may not be sufficient to prove that she was    p
    incapable of executing the Will, but the respondent'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 taken into
    consideration. 1717-F•H; 718-A, Bl
                                                                                        G
           1.2. 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. The Will was registered 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 she signed in       H
    712                            SUPREME COURT REPORTS [2006[ 3 S.C.R.

A   the Will. Having regard to the peculiarity of the explanation sought to be
    given, on examination of 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. 1718-8-01

          1.3. The last and perhaps the most significant aspect of this matter is
B the failure of the appellant to examine the 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
C   absence of any evidence this Court is 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. [718-E-G[
D
          CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4009of1998.

         From the Judgment and Order dated I 7.12. I 997 of the High Court of
    Madras in O.S.A. No. 45/J 991.

E        K.K. Mani, K.B. Sandeep, R.K. Pandey and Mayur R. Shah for the
    Appellants.

          The Judgment of the Court was delivered by

          ALTAMAS KABIR, J. One Mrs. Solomon Lazarus was the owner of
F   Plot No. 85, Trustpuram Scheme, since re-numbered as No.9, III Cross Street.
    Trustpuram, Kodambakam, Madras - 600024. She died on 27th November,
    I 983 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,
G   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, I984 and the same was numbered
H   as O.P. No. 300/1984. In his application, the propounder did not disclose the
       JOSEPH ANTONY LAZARUS (DEAD) BY LRS. v. A.J. FRANCIS [KABlR, J.]   713
names of any other persons having an interest in the estate of the deceased A
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, B
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 C
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 D
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 E
leave India from time to time. As a result, the respondent was staying with
her mother in Madras. Tht: 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 p
subsequently re-numbered No.9, IJl 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· G
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 H
    714                              SUPREME COURT REPORTS [20061 3 S.C.R.

A 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.
B   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
C 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
  th~ learned Judge, 12th Court, City Civil Court, Madras, in respect of the
D aforesaid house property situated at No. 9, Ill 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
E   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
F   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 paiJ the installments of the house
    property and had looked after and cared for the testatrix till her death. It was
G   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 her two daughters had been married and had been
H   provided for and that the appellant and the said Cecil Lazarus had not only
       JOSEPH ANTONY LAZARUS (DEAD) BY LRS. v. A.J. FRANCIS [KABIR, J.]      7 J5

looked after and cared for her but had also paid the installments for the house      A
in question.

      It was in this background that the learned Single Judge del:ided 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    B
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    C
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          D
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              E
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       F·
appellant that despite her physical condition, she was mentally alert and was
capable of understanding everything that she did. Despite the denial by the
plaintiffs 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        G
fallen and broken her thigh bone for which she had to be taken to Vellore and
operated upon. In the year l 979, 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         H
    716                           SUPREME COURT REPORTS (2006) 3 S.C.R.

A the testatrix, the plaintiff, namely, the appellant herein (PW-I) 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-
B 2, one Mr. N.K. Sarni, 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
C 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.

          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
D   year 1963 and there was no evidence to show that he had bee11 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.
E          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
F   pages of the Will and twice on each page 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.
G
          Since the Will came from the custody of the plaintiff. the appellant
    herem, (PW-I), 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
H   aside the judgment and decree of the learned Single Judge on the aforesaid
       JOSEPH ANTONY LAZARUS (DEAD) BY LRS. v. A.J. FRANCIS [KABIR, J.]     7 J7

findings and the present appeal is directed against the said judgment of reversal   A
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          B
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            C
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 D
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 E
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 F
understand as to why the testatrix omitted to mention two of her sons in the
Will 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 I 963 and only the appellant was
living with her in the house being the subject matter of the bequest in the G
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 H
    718                             SUPREME COURT REPORTS [2006] 3 S.C.R.

A 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.
B        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
C 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
D naked eye it is quite evident that the two signatures are entirely different and
  have httle or no Iikeness 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
E   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
F   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.
G
          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.

H B.S.                                                          Appeal dismissed,