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In Re: Bomanji Burjorji Shroff - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Judge
Reported in(1877)ILR1Bom547
AppellantIn Re: Bomanji Burjorji Shroff;manickbai
Respondent;hormasji Bomanji
Excerpt:
.....alone had been given exclusive powers not only to execute documents but also induct tenants. - it did not, however, appear clearly that instructions for this statement had been given by manickbai. 1. the rule to be gathered from those cases is that, if the testator produces a paper and makes the witnesses understand that it is his will, that is an acknowledgment of his signature, if the court is satisfied that his signature was on the will when the witnesses attested it......as the last will of bomanji burjorji shroff. the two attesting witnesses state that, in the office of messrs. ralli brothers, bomanji produced a paper, saying it was his will, and asked them to attest it, which they did, and that this was the same paper which is now propounded as his will. both say, one more positively than the other, that they then saw no writing on the paper which they attested. if manickbai's evidence is to be relied on, this paper was written and signed by bomanji at his own house before he took it to the office of messrs. ralli brothers and there got the witnesses to attest it. the circumstance which, to some extent at least, threw doubt, in my mind, as to that evidence, was this: that an affidavit was proposed to be made by the two attesting witnesses.....
Judgment:

Green, J.

1. The question for decision is whether, under the 3rd clause of Section 50 of the Indian Succession Act X of 1865, the two attesting witnesses received from the deceased a personal acknowledgment of his signature to the paper here propounded as the last will of Bomanji Burjorji Shroff. The two attesting witnesses state that, in the office of Messrs. Ralli Brothers, Bomanji produced a paper, saying it was his will, and asked them to attest it, which they did, and that this was the same paper which is now propounded as his will. Both say, one more positively than the other, that they then saw no writing on the paper which they attested. If Manickbai's evidence is to be relied on, this paper was written and signed by Bomanji at his own house before he took it to the office of Messrs. Ralli Brothers and there got the witnesses to attest it. The circumstance which, to some extent at least, threw doubt, in my mind, as to that evidence, was this: that an affidavit was proposed to be made by the two attesting witnesses (which, however, they refused to make) that the will had been signed in their presence by Bomanji at the office of Messrs. Ralli Brothers. It did not, however, appear clearly that instructions for this statement had been given by Manickbai. The provisions of the English Wills Act (1. Vic., Cap. 26, Section 9), with regard to the acknowledgment by the testator of his signature to his will, are substantially the same as those of the Indian Succession Act X of 1865, Section 50, for I think the introduction of the word 'personal' into the last-mentioned Act is not material in such a case as the present. The question: what is a sufficient acknowledgment by a testator of his signature to his will? was considered in the cases of Cooper v. Bockett 4 Moo P.C. 419, Gwillim v. Gwillim 3 Sw. & Tr. 200, Smith v. Smith L.R. 1 P. $ D. 143, and Beckett v. Howe L.R. 2 P. & D. 1. The rule to be gathered from those cases is that, if the testator produces a paper and makes the witnesses understand that it is his will, that is an acknowledgment of his signature, if the Court is satisfied that his signature was on the will when the witnesses attested it. The circumstances of the present case, coupled with the evidence of Manickbai, have led me to the conclusion that when the testator produced this paper in the office of Messrs. Ralli Brothers, and informed the attesting witnesses that it was his will, and got them to attest it, his signature was already on it. That being so, I must hold that ho sufficiently acknowledged his signature to these witnesses. Probate must, therefore, issue to Manickbai. The costs of both parties must come out of the estate, except so far as occasioned by the contention of the caveator that probate ought not to issue on the ground that Bomanji Burjorji had executed another will subsequent to the one propounded. These last-mentioned costs must be paid by the caveator Hormasji Bomanji.


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