Will signed by testator after understanding the contents of the will.

P.K. Misra, J

Original Defendants 1 and 2 have filed this appeal against the judgment and decree of the learned single Judge in T.O.S.No.43 of 1995 granting Letters of Administration of the Will dated 5. 1992. During pendency of the appeal, Appellant No.1 has expired and his legal representatives have been brought on record.

2. Genealogy relevant to the case is as follows :-

Joseph Swaminathan

Rosary (First Wife) Leela Joseph (2ndWife)

1. J. Mathew (D1) 2. J. Damien (D2) 1. Malarkodi 2. Ezhilarasi

3. Jayanthi 4. Isabella

Son Son Daughter Daughter

The Will is purported to be executed by one P. Joseph Swaminathan. Original defendants 1 and 2 are the two sons of said Joseph Swaminathan through first wife. Two daughters were also born through first wife. After the death of first wife, Joseph Swaminathan married Leela Joseph, who filed O.P.No.410 of 1995 for grant of Letters of Administration, which was subsequently on contest converted into T.O.S.No.43 of 1995. Through second wife, deceased had also two daughters. Four daughters, first two born through first wife and the later two born through second wife had filed affidavits supporting grant of probate and such probate proceedings was contested only by two sons born through first wife. The Will sought to be probated is dated 5. 1992 It was presented for registration on 15. 1992 and registered as Document No.18 of 1992 on 15. 1992. In the said Will there is specific recital relating to earlier registered Will dated 8. 1990 and in the later Will it is specifically recited that earlier Will stands cancelled.

3. In the written statement filed by Defendant No.1 it was stated that the alleged Will purported to have been executed by the deceased is a forged Will and brought up Will and his father did not execute the Will nor sign the same. It was further stated that one of the properties at No.38, Thayar Sahib Street, Chennai 2, stood in the name of his mother late Rosaline Joseph, was earmarked for the benefit of Defendant No.1, the eldest son, and he was in possession of the same ever since the death of his mother in 1971. It was stated that:

"... recitals in the present Will making contradictory claim even in respect of the said property and his allotted share therein and his entitlement to the same under an alleged Will of his deceased wife exposes the false nature of the present will and establishes that the Will in question is not a genuine one."

It was further stated that the first defendant had sold his property to pay the dues to the Income Tax Department with the knowledge of the deceased and, therefore, the deceased could not have executed the Will. It is specifically averred that Joseph Swaminathan was very old, senile and was sick. He was aged 80 years and he had severe cardiac arrest and due to old age and illness, he was not at all in sound disposing state of mind at the time of execution of the Will. It is further stated that his father did not execute the present Will voluntarily or in sound disposing state of mind. Sometime after the marriage, the plaintiff converted her religion from Roman Catholic to Pentecoste and she was under the influence of one John working at Neyveli. Originally the deceased got enraged because of such conversion and sent her from the house and subsequently she and others prevailed upon the deceased and brainwashed to the extent that the deceased himself became Pentecoste. Because of the influence of the plaintiff and Mr. John of Neyveli and because of fragile health and advanced age, the defendants father was wont over and prevailed upon by the plaintiff to create such a document purported to be a Will and such Will has been brought about by fraud, misrepresentation and undue influence by the plaintiff and others and such Will has been created and not a genuine document. The Will was not at all executed by the defendants father and there are false recitals in the Will.

4. The second defendant denies the allegation about due exec