2006 Supreme(SC) 304

2006(3) Supreme 259
SUPREME COURT OF INDIA
(From Madras High Court)
B.P. Singh and Altamas Kabir, JJ.
Joseph Antony Lazarus (Dead) By Lrs.—Appellants
versus
A.J. Francis—Respondents
Civil Appeal No. 4009 of 1998
Decided on 3-4-2006
Counsel for the Parties :
For the Appellants : K.K. Mani, K.B. Sandeep, R.K. Pandey, Mayur R. Shah, Advocates.

Headnote:Indian Succession Act, 1925—Section 276—Petition for probate of Will—Testatrix mother of petitioner and respondent executed Will on 5.7.1979 which was registered on 7.7.1980—Question was whether Will was valid and genuine or not or whether Will had been vitiated by coercion and undue influence by beneficiary therein—Single Judge decided suit in favour of plaintiff-appellant holding that testatrix was sufficiently possessed of her mental faculties to execute the Will and there was no evidence that she was under control of appellant—Appellate Court reversed the judgment—Appeal—No evidence or explanation why testatrix omitted to mention two of her sons in Will—Testatrix was of very advanced age and had suffered a fall and broken her thigh bone twice and was operated on both occasions—Defendant’s contention that appellant took advantage of mishap and subsequent dependence of testatrix to influence her to make the Will in his favour and in favour of another brother who was not even residing in India needed to be taken into consideration—Two signatures of testatrix appeared on each page of Will and two signatures were entirely different and had little or no likeness whatsoever—Advocate who drafted Will and Sub-Registrar before whom will was registered were not examined—Effect of all such circumstances created genuine doubt on genuineness of ‘Will’—No reason to differ.

       Held : 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 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.(Paras 20 to 23)