VELLASWAMY SERVAI Vs. L SIVARAMAN SERVAI

JUDGEMENT

(1.) The appellants alleged that R. Muniandy Servai (hereinafter referred to as the testator) executed a will dated 22 January, 1906, by which he appointed the appellant Vellasawmy Servai and one S. Muniandi Servai as executors to the will. The testator died on 16 February 1924 He deposited this will personally in the Registration Office in Rangoon on the very day that it was executed, and it remained there until it was produced by the Registrar in this case. The District Judge held this will to have been duly proved, and although the High Court in its judgment threw doubts on its genuineness, the respondent before the Board did not seriously dispute its validity. Their Lordships agree with the District Judge and hold that this will was duly executed.

(2.) The respondent alleged that the testator duly executed another will dated 23 January 1924. The main question involved in this appeal is whether this will was duly executed by the testator. The respondent on 7th August 1924, made an application for probate of this last mentioned will. To prove this will the respondent gave evidence himself and called several other witnesses, amongst whom the important ones were one Maung Po Nyun (hereinafter refer-red to as the registration clerk) and Kurpaya, Aiyer and Tangasawmy.

(3.) Shortly put, the respondent's evidence is that the testator, an old man of 75, started from Kyungyaung, his home, for Rangoon on 21 January 1924. The respondent accompanied him only to Kungyangon, where the testator got on the steamer to go to Rangoon, and at his request the respondent went to fetch Kurpaya and Tangasawmy to Rangoon to help the testator to make the will. The respondent went to Rangoon and requested one Aiyer to see the testator to take instructions from him about the will, which Aiyer did. Aiyer drafted the will and took it to the testator and he approved of it. Before the will was signed an application was made to the Registrar for the issue of a commission, and a commission was duly issued. Thereafter the registration clerk attended at No. 67, twenty-seventh Street, Rangoon, where the testator was staying, and the will was executed by the testator and attested by Kurpaya and Tangasawmy in the presence of Aiyer and the registration clerk.