MOTIBAI HORMUSJI KANGA Vs. JAMSETJI HORMUSJI KANGA

JUDGEMENT

(1.) This appeal arises out of an application by the petitioner, a Parsee lady named Mrs. Motibai Kanga, in the Court of the District Judge of Bangalore for the probate of a will which she alleges had been executed by her husband shortly before his death, on August 17, 1920. The probate was granted by the District Judge, Mr. de Rozario, on December 19, 1921. His older was, however, reversed by the Resident of Mysore, Mr. Barton, who appears to have exercised, in his official capacity, the appellate jurisdiction over the Civil Court in Bangalore; hence the appeal to His Majesty in Council.

(2.) The testator, Mr. Hormusjee Rustomjee Kanga, resided in Bangalore, and he is described as having been a turf accountant. He became ill on August 2, 1920, and his medical attendant, a doctor named Mylvaganam, diagnosed his complaint as malaria; but as he became gradually worse, his wife and friends became anxious and called in two other doctors in consultation with Dr. Mylvaganam. They were of opinion that it was not malaria but septic poisoning, and they prescribed accordingly. The will is alleged to have been executed in the evening of August 16, and was registered by the Sub-Registrar of the Civil and Military Station, Bangalore, shortly after its execution. From his name (Mr. Burby) the Sub- Registrar appears to be an Englishman. As his evidence, in their Lordships opinion, is of the utmost importance in the determination of this appeal and is very short in substance, they propose to quote it in full:-- I am Sub-Registrar of Assurances, C. and M. Station, Bangalore. I was so in August, 1920. I remember August 16, 1920. I was called to the residence of Mr. Kanga and a will was there given to mo for registration. I registered it. Exhibit A is the will. It was signed by Mr. Kanga in my presence unaided. I had no suspicion whatever that anything was wrong with the will. I satisfied myself that Mr. Kanga was perfectly right in his mind.

(3.) He was not cross-examined at all on behalf of the caveator, the eldest son of the deceased, Mr. Kanga, His case was, in the first place, that his father was not competent or in such a condition, mentally or physically, as to make a valid disposition; in the second place, that if it was competently made, it was made under the undue influence of his wife, the petitioner. The petitioner is the second wife of the deceased. He appears to have married her in 1917, and it is in evidence that they lived harmoniously and on good terms.