HORMASJI KHARSETJI SETHNA Vs. DHANJISHAW RATANJI LALCACA

JUDGEMENT

(1.) This is an appeal from the decision of the District Judge of Surat who disallowed an application for probate of the will of one Aimai, a Parsi lady, who died on the 3 of May 1907 and who is alleged to have made the will in question dated the 8 of March 1907. She left a husband who was the opponent in the application for probate and a daughter aged one year and a half. The property which she purported to dispose of was a sum of Rs. 15,000, inherited from her father. By the will she purports to bequeath the whole of it for the benefit of her daughter providing that during her daughter's minority her executors shall hand over the interest of the property so far as may be necessary for her maintenance to the person with whom her daughter may be, that is, either her mother or her husband or any other member of the family, and that after the daughter attains her nineteenth year the whole of the property should be handed over to her. Then the will proceeds as follows :- Should, God forbid, my daughter Gulbai die before attaining her nineteenth year, my executors shall give my property and assets, that is, whatever may remain over after deducting all expenses to my respected-mother Ratanbai Hormasba or shall divide and give the same to her heirs in equal Dbares. 7. I do not see the necessity of giving anything whatever out of my munji to my husband Dhanjisha. But, as mentioned above, I give the whole of lay punji to my and his only daughter Gulbai...

(2.) The learned Judge was unable to hold that the will was not signed by the testatrix. He did not find himself in a position to disbelieve the evidence of the witnesses who proved the signature, but he held that it was incredible that the testatrix should have given the go-by to her husband and should have had her will prepared by her father's brother. He seems to have started with the presumption that no Parsi would under ordinary circumstances exercise her unfettered power of testamentary disposition to the prejudice of her heirs on an intestacy, and he seems to have assumed that because the executors named in the will had not been communicated with before their names were entered as executors that was a circumstance which threw suspicion upon the genuineness of the will.

(3.) We are of opinion that there is no presumption that a Parsi lady will leave her property to her heirs on an intestacy in preference to exercising her power of testamentary disposition.