IN RE: LAST WILL OF HAJEE SIR ISMAIL SAIT, KT LATE OF ESSEX LODGE, EXPORTER AND IMPORTER; ABDUL HAMEED Vs. MOHAMMAD YOONUS MERCHANT AND COMPANY DIRECTOR

JUDGEMENT

(1.) Hajee Sir Ismail Sait, a member of the Cutchi Memon community and a resident of Bangalore, died on the 24 April, 1934, in the tuberculosis sanitarium at Arogyavaram, Chittoor District. He was survived by a widow, five sons (the appellant and respondents 1 to 4) and a daughter (the fifth respondent). He had sixteen grandchildren, who are respondents 6 to 21. He left a will dated 19 March, 1934, and the present appeal arises out of an application which was made by the executor for the grant of probate. By his will the testator provided for the education of his grandsons. For some of them he made special provisions with regard to their education and maintenance. While he was in the Sanitarium he decided to fix the allowance which his sons and daughter were to receive under his will and he directed his solicitors, Messrs. Moresby and Thomas, Madras, to draw up a codicil to give effect to his intentions in this respect. The instructions to draft the codicil were embodied in a letter dated the 5 April, 1934 and signed on the testator's behalf by the first respondent. Messrs. Moresby and Thomas prepared a draft and sent it to him on the 6 April. Two of the testator's grandchildren had been at school at Aligarh. One died while at school and the other was consequently withdrawn from the school. On the 13 April, 1934, the testator directed the first respondent and his agent D. L. Narasappa to write to Messrs. Moresby and Thomas in these terms: I beg to acknowledge the receipt of your letter of the 6 instant with the draft codicil. I am grieved to inform you that since the receipt of this codicil my grandson, Abdul Sammad, suddenly died at Aligarh University. I have withdrawn my other grandson from school and have decided to cancel the allowances provided for school fees. I have, therefore, wired you as under : Your letter sixth since my grandson Abdul Sammad died have therefore decided omit also school fees - Don t delay - Ismail which I beg to confirm.

(2.) The first respondent who applied for probate of the will also asked that the telegram referred to in this letter and the letter should be read as parts of the will and admitted to probate. The learned Judge who heard the application (Wadsworth, J.) granted probate of the will, but refused to admit to probate the telegram and the letter. The appeal concerns the question whether this decision is right. The refusal of the learned Judge to admit these documents to probate was based on the opinion which he formed that they were only intended to provide material for the preparation of a draft codicil which the testator was to settle later.

(3.) Although according to the oral evidence the testator was in clear mind until two days before he died, he was undoubtedly seriously ill when he instructed the first respondent and his agent to write to Messrs. Moresby and Thomas on the 13 April, 1934, and from the documentary evidence it is quite evident that soon afterwards he became too ill to attend to his affairs. On the 14 April Messrs. Moresby and Thomas wrote to him acknowledging receipt of his telegram instructing them to omit from the will the provisions made for school fees but asked for further instructions in order to clear up a doubt which they felt with regard to the extent of the instructions. By Clause 14(a) of the will the testator provided for the maintenance and education of the five sons of the second respondent, including provision for the pursuit of studies in England or America. In Clause (b) he made a similar provision for the education of any sons who might subsequently be born to the second respondent, and in Clause (f) he made provision for the education and maintenance of Sulaiman, the son of the appellant. Sulaiinan was then reading for the Bar in England. In their letter asking for further instructions Messrs. Moresby and Thomas referred to the fact that Sulaiman was in England and observed that probably the testator did not wish to make any alteration in the clause relating to him but they would be glad to know by return whether he wished them to strike out from the will Clauses 14(a) and 14(b). In addition to writing this letter Messrs. Moresby and Thomas sent him a telegram asking for instructions. The telegram and the letter were not replied to and it is obvious that this was because the testator was too ill to give instructions. On the 12 April Messrs. Moresby and Thomas submitted a bill of costs to the testator and on the 21 April the first respondent wrote to there stating that his father was not well enough to go through their letter in consequence of which it had not been placed before him.