KALYANCHAND LALCHAND Vs. SITABAI DHANASA

JUDGEMENT

(1.) Dhanasa died in September 1905. He is alleged to have made a will within forty-eight hours of his death. The executors petitioned for probate in 1908. The widow Sitabai, plaintiff in this suit, opposed, alleging in general terms that there was no will. To understand the vagueness of her caveat it is necessary to state that at the time of her husband s death she was a minor. The executors averred that the will was executed in her presence. She therefore replies in her caveat that no such will was ever executed in her presence, and that what is now propounded as the genuine last will and testament of the deceased Dhanasa, does not seem to be a genuine will. In the circumstances I do not see how she could have been expected to be more explicit, and I think that her contention fairly raised all points upon which the genuineness of a will can be disputed.

(2.) The learned District Judge refused probate, clearly on the ground that the deceased Dhanasa could not have been in a sound disposing state of mind, even were the will really made and signed by him. The executors appealed to the High Court, and the appeal was disposed of by Scott, C.J. and Batchelor, J. The appeal was dismissed and probate refused. No definite issue was raised, it very rarely is in appeal to this Court, but it cannot be seriously denied that the appellate Court held that the evidence proved that the alleged testator was not, at the time the alleged will was executed, of a sound disposing mind. This is as clear as though the learned Judges had raised the issue in so many words and answered it in the negative and against the executors. It is necessary to emphasize these points in the statement of facts, to clear the way of a certain amount of irrelevant and untenable argument which might otherwise obscure the questions we propose to ask a full Bench.

(3.) The widow Sitabai having come of age has now brought the present suit against the defendants as executors de son tort. They have again set up the will and claim to be invested under it with all the legal character of executors.