PITAM LAL Vs. KALLA RAM

JUDGEMENT

(1.) Two questions have been referred to this Full Bench for consideration. They are: (1) Whether an application for the grant of probate of an oral will can be entertained under the Probate and Administration Act (Act 5 of (1881); and (2) whether the Act would apply to a case where the substance of the oral will was taken down by a witness at the time.

(2.) If the questions were res integra and we had to consider nothing but the provisions of the Probate and Administration Act (Act 5 of 1881) there would be considerable difficulty in holding that a. probate of an oral will would be granted.

(3.) No doubt the definition of "will" though not that of codicil" in Section 3 was wide enough to include an oral will. But "probate" was defined as meaning the copy of a will certified under the seal of a Court of competent jurisdiction, with a grant of administration to the estate of the testator. We then had Secs.24, 25, 26 and 27 relating to the grants limited in operation. The language of these sections presupposed that the will had been lost or mislaid or was in the possession of a person residing outside the province or that it was in existence but was not forthcoming. The language of these sections was therefore appropriately related to a written will and not to an oral will. Lastly we had Section 62 which referred to the application to be made for probate which must have the will annexed or in the cases mentioned in Secs.24, 25 and 26 a copy, draft or a statement of the contents thereof annexed and must also state that it was duly executed. It did not expressly say that was to be done in the case of an oral will. Section 63 referred to the case-where the will was in a language other than English, of which a translation had to be annexed.