MICHAEL LORENCE LOPIS Vs. JOSEPH LORENCE LOPIS

JUDGEMENT

(1.) This appeal is directed against the judgment dated 14th December, 1993 passed by the learned Civil Judge Senior Division, Thane allowing the suit filed by the respondent no. 1 for letters of administration with the will annexed of the deceased Mr. Joseph Lorence Lopis (hereinafter referred to as the said deceased). Some of the relevant facts for the purpose of deciding this appeal are as under :

(2.) The respondent no. 1 was the original plaintiff. The appellants were the original defendant nos 1, 3 and 4 respectively. Respondent no. 2 herein was original defendant no. 2. Respondent no. 3 herein was the original defendant no. 5. During the pendency of the appeal the original appellant no. 3 expired. By an amendment permitted by this court by order dated 18th November, 2008, his legal heirs are brought on record. Original Appellants and the respondent no. 1 and 2 were the sons of the said deceased. Mr. Joseph Lorence Lopis. Respondent no. 3 is the daughter of the said deceased. It is the case of the respondent no. 1 that the said deceased had executed a will on 23rd June, 1983. The said deceased and the parties to this proceedings are governed by the provisions of Indian Succession Act, 1925 being Christians. The said will was registered with the sub registrar's office. On 9th November, 1987, the said testator expired leaving behind the appellant no. 1 and 2, the original appellant no. 3 and the respondents as heirs and legal representatives.

(3.) On 10th March, 1988, respondent no.1 herein filed an application for letters of administration with will annexed. All the legal heirs of the said deceased were served with the citation of the proceedings. The appellants filed written statement challenging the genuineness of the will on various grounds. In the said written statement, it was alleged that the purported will was either a fraudulent document and/or got by undue influence and coercion and did not express the true or last wishes of the deceased. It was alleged that the respondent no.1 herein got the alleged will executed by the deceased who was under his absolute control by exercising undue influence and coercion upon the said deceased. The deceased was at the time of alleged execution of the will 85 years old. It was alleged that the testator was not in sound mental condition or health. It was alleged that the entire property that the deceased had purported to will was an ancestral property and therefore, all the heirs of the said deceased had equal share in those properties. It was further alleged that Mr. S.P. D'mello, a relation of the respondent no. 1 herein from his wife's side had scribed the alleged will and in collusion and conspiracy with the respondent no.1 had got the alleged will executed by the deceased without the deceased being aware of the contents and the implications of the alleged will. 80% of the estate under the will of the deceased had been allegedly bequeathed to respondent no.1 and his family members.