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.
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.
As the only earning member in the family at the relevant time, the respondents husband companytinued to pay all the installments to the City Improvement Trust as decided in the family arrangement.
The Division Bench took numbere of Ext.
It was numbericed 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 once when the Will was executed and next on the request made by the Sub Registrar before whom the Will was registered.
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 companytemplated 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 A.J. Francis, the respondents husband.
The Division Bench also took numbere 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.
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 said suit is said to be pending final decision.
The elder sister of the respondent was married in 1951 and had left the family.
Furthermore, although the testatrix had two other sons, besides the two beneficiaries under the Will, there is absolutely numberreference 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 Division Bench firstly numbericed that at the relevant time, the testatrix was 83 years old and number fully fit physically, numberwithstanding the case of the appellant that despite her physical companydition, she was mentally alert and was capable of understanding everything that she did.
It was in this background that the learned Single Judge decided the suit in favour of the appellant herein upon holding that there were numbersuspicious circumstances which were sufficient in itself to indicate that the Will was number genuine.
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.
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 provided for and that the appellant and the said Cecil Lazarus had number only looked after and cared for her but had also paid the installments for the house in question.
Subsequently, the respondents 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 number sufficient to accommodate all the members of the family.
The plot was accordingly transferred in the name of Mrs. Solomon Lazarus.
On the other hand, it was companytended on behalf of the appellant that the property in question belonged to the testatrix and that it was the appellant and his brother number 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 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.
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 respondent questioned the validity and genuineness of the Will said to have been executed by Mrs. Solomon Lazarus in respect of the aforesaid property companysidering the physical and mental state of the testatrix prior to her death from the year 1970 onwards.
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.
The respondents 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 Will is said to have been drafted on the instructions of the testatrix by an advocate, Mr. K. Venkataraman.
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 number been made a party to the proceedings despite being the daughter of the testatrix.
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.
Even on the question of companyrcion and undue influence, the learned Single Judge was satisfied that such an allegation had number been proved.
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.
Altamas Kabir, J. One Mrs. Solomon Lazarus was the owner of Plot No.
As a result, the respondent was staying with her mother in Madras.
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.
Apart from the above, the Division Bench companymented on the fact that admittedly Cecil Lazarus had gone to Sharjah in Saudi Arabia in or about the year 1963 and there was numberevidence to show that he had been sending any remittance from Sharjah to the testatrix.
85, Trustpuram Scheme, since re numbered as No.9, III Cross Street, Trustpuram, Kodambakam, Madras 600024.
Pursuant thereto, he was allotted Plot No.85, Trustpuram Scheme which was subsequently re numbered No.9, III Cross Street.
According to the respondent, the alleged Will companyld number have been executed by Mrs. Solomon Lazarus voluntarily and if at all the Will had been executed by her, it companyld only have been done under duress and companyrcion by the appellant herein and other family members who were residing with her at the time of her death.
Upon companysideration of the case made out by the respective parties, the Appeal Court reversed the findings of the learned Single Judge and dismissed the appellants application for grant of probate on various grounds.
300/1984.
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 time to time.
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 O.S.No.11/1985 with Joseph Antony Lazarus as plaintiff and Mrs. A.J. Francis as the defendant, to companysider the question whether the Will dated 5th July, 1979 said to have been executed by Mrs. Solomon Lazarus was valid and genuine or number or whether the Will had been vitiated by companyrcion and undue influence by the beneficiary therein.
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.
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 respondent herein preferred an appeal before the Division Bench of the High Court of Judicature at Madras, being O.S.A.No.45/1991.
In his application, the propounder did number disclose the names of any other p ersons having an interest in the estate of the deceased and companysequently probate was granted to him on 18th October, 1984.
Since the Will came from the custody of the plaintiff, the appellant herein, PW 1 , the Division Bench also took numbere of the fact that the Will had number been disclosed by the appellant till such time when the respondents husband called upon him to vacate the suit property.
On the basis of the aforesaid decision, the respondents 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.
Trustpuram, Kodambakam, Madras 600024, which was the subject matter of the purported Will.
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 fallen and broken her thigh bone for which she had to be taken to Vellore and operated upon.
