SALA MAHOMMED JAFFERBHOY Vs. DAME JANBAI

JUDGEMENT

(1.) SIR Tharia Topan was a native of Zanzibar and the owner of a large mercantile business carried on in that island and in the city of Bombay. He resided in Bombay for some years and managed the business there, while his eldest son Moosa managed the business in Zanzibar. He belonged to the sect called Khojas, being Mahomedan in religion but observing Hindu customs as regards their property. In the year 1886 he made his will. He had then a wife named Janbai, who is the present respondent, and who apparently belongs to a family of Shiya Mahomedans. He had also eight living children, three of whom were born of a former marriage, and were of middle age. The other five were children of Janbai, and were much younger. Later in the same year, when another son had been born to him, he made a codicil to his will, and in the year 1889 a second codicil. On January 12, 1890, he made a third codicil. On November 1, 1890, he made a fourth codicil. On February 6, 1891, a document was prepared which is propounded as a fifth codicil. On February 9, 1891, he died. His executors were the respondent Dame Janbai and his eldest son Moosa.

(2.) ON July 23, 1891, the widow Janbai petitioned the High Court of Bombay, claiming probate of the will and five codicils. Moosa opposed her. As regards the will and the two first codicils there was and is no dispute; but Moosa contends that the third and fourth codicils were obtained from the testator by the undue influence or coercion of Janbai, and that the fifth codicil, if signed at all by the testator, was signed when he was unconscious. Those are the issues now before their Lordships. They were decided in favour of Moosa by Bayley J. at the trial, and against him by the Court of Appeal. He is now dead, and his executors are the present appellants.

(3.) THE most emphatic of these letters is dated January 16, 1890, four days after the date of the third codicil. It is written in Gujerathi and is translated as follows: