O V FORBES Vs. VGPETERSON

JUDGEMENT

(1.) This is an appeal from an order of Ameer Ali, J. dated 21 June 1940, whereby he stayed an application by Oswald Vernon Forbes made to this Court for the grant to him of probate of the will of his mother, Adelaide Elizabeth Forbes, and a codicil alleged to. have been made with reference to the will. The order was as follows: The application is stayed sine die with liberty to bring it on upon notice to the other parties in the event of the probate granted by the Lucknow Court being hereafter revoked.

(2.) There was also an interim order restraining the. executor and executrix of the said will -- of which probate had been granted by the Oudh Chief Court at Lucknow -- from distributing the estate in such a manner that persons having rights under the codicil may be adversely affected. The interim order restraining distribution was stated to hold good until 1 July 1940. The facts leading up to this application are as follows : The deceased Adelaide Elizabeth Forbes was a widow, who died at Dehra Dun in the United Provinces whilst on her way to Mussoorie on 6 June 1939. She had resided for some time previous to her death at "Dilkusha House", Lucknow, in the province of Oudh and had immovable property in the province of Oudh and moveable property consisting mainly of money and shares in companies. Altogether the property was stated to be valued at about ninelakhs of rupees, eight lakhs of this was situate in province of Oudh and about one lakh, consisting of money and shares in companies, was held by the deceased's banks or other agents in Calcutta. The deceased had three children, namely Oswald Vernon Forbes, the present applicant, Mrs. Violet Geraldine Peterson, a married daughter, and Mrs. Esme Earle, another married daughter. The deceased made a will on 23 January 1938, whereby she devised and bequeathed one-third of her estate to the applicant Oswald Vernon Forbes, one-third of her estate to Mrs. Violet Geraldine Peterson, and the other one-third to her other daughter Mrs. Esme Earle for life with the remainder to her children. The applicant and Mrs. Peterson were named as executors in that will.

(3.) It is alleged that on 1 June 1939, that is five days before her death, the deceased executed a codicil to the said will whereby Mrs. Peterson was removed from the office of executor under the will and Mr. F.O. O Neill a barrister substituted in her place. The codicil also purported to reduce Mrs. Peterson's share from one-third to one-sixth and increase the share of Oswald Vernon Forbes, the applicant, from one-third, to one-half. On 23 June 1939, Mr. Stewart, an official of the Imperial Bank at Lucknow who was a witness to the will, swore an affidavit before the Commissioner of Affidavits, Chief Court of Oudh, verifying the will and stating that he saw the testatrix sign it. On 27 June 1939, Murli Dhar Raumiar and N.N. Shivpuri, who were witnesses to the codicil, swore affidavits before the Deputy Registrar of the Chief Court of Oudh stating that they saw the deceased sign the codicil. Wo are told that the will and codicil had both come into the hands of Oswald Forbes and that the codicil was produced by him on 4 July 1939. On 11 July 1939, Mrs. Peterson applied to the Chief Court of Oudh at Lucknow for grant of probate of the will and on 12 July she asked for a summons against Oswald Forbes and Mr. O Neill for production of the will and codicil. On the same date, namely 12 July, upon an application by Mrs. Peterson in the Oudh Court under Section 276, Succession Act, the following order was made: Let citations issue to Messrs. O.V. Forbes and F.O. O Neill, Munshi S. Aziz-un-Nabi and B. Shayama Charan. As it is said that the original will and codioil are in the possession of Mr. Forbes or Mr. O Neill, it is ordered under Section 267(1), Succession Act, that these gentlemen be required to produce the said will and codicil. Let the citation to Mr. Forbes issue immediately.