RODA FRAMROZE MODY Vs. KANTA VARJIVANDAS SARAIYA

JUDGEMENT

(1.) THIS is an appeal from the judgment of Mr. Justice Kania dated December 7, 1944. The appeal raises a short though interesting question with regard to the proof necessary to establish due execution of a will on a petition for probate which is contested.

(2.) THE deceased in this case was Dr. H. M. Mody, who died on October 21, 1942. He had married his second wife Manoramabai in September, 1942, and on October 6, 1942, he executed a testamentary document in her favour which purports to be attested by a solicitor and his clerk. On October 15, 1942, it is alleged that he executed a second testamentary document and this purports to be attested by Mr. Somne and one Choudhari Mohammed Mustaqueem Khan. This document of October 15 is the one in respect of which the petitioner asks for probate, and except for the signatures, it is typewritten on a sheet of the Doctor's note paper and is in the following terms: Last Will I hereby cancel all my wills and bequeath all my estate to Mrs. Roda Framroze Mody, whom I direct to pay 1/10th of the estate to Petit Memorial Library, and spend a slum of Rupees One thousand towards my funeral and other ceremonies, and utilise a sum of Rupees one hundred annually towards anniversary ceremony of my wife Urmila.

(3.) BEFORE referring to Section 63 (c) of the Indian Succession Act and to Section 68 of the Indian Evidence Act, the observations of the Privy Council in Ramanandi Kuer v. Kalawati Kuer (1927) 30 Bom. L. R. 227 F. C. , which refers to the procedure to be adopted in revocation of a grant of probate, must be borne in mind. Those observations, in my opinion, equally apply in principle to the proof of a will in a contentious matter. Lord Sinha delivering the judgment of the Board said this (p. 231): There has been some divergence of opinion in the Courts in India as regard the law and procedure governing cases for revocation of probate, due in part to the introduction into Indian practice of the difference in English law between the grant of probate in common form and probate in solemn form. It is worse than unprofitable to consider how far, if at all, that distinction has been incorporated into Indian law. It has often been pointed out by this Board that where there is a positive enactment of the Indian legislature the proper course is to examine the language of that statute and to ascertain its proper meaning, uninfluenced by any consideration derived from the previous state of the law-or of the English law upon which it may be founded.