Basil Scott, Kt., C.J.
1. This is an appeal from the decision of the District Judge of Surat who disallowed an application for probate of the will of one Aimai, a Parsi lady, who died on the 3rd of May 1907 and who is alleged to have made the will in question dated the 8th of March 1907. She left a husband who was the opponent in the application for probate and a daughter aged one year and a half. The property which she purported to dispose of was a sum of Rs. 15,000, inherited from her father. By the will she purports to bequeath the whole of it for the benefit of her daughter providing that during her daughter's minority her executors shall hand over the interest of the property so far as may be necessary for her maintenance to the person with whom her daughter may be, that is, either her mother or her husband or any other member of the family, and that after the daughter attains her nineteenth year the whole of the property should be handed over to her. Then the will proceeds as follows :-
Should, God forbid, my daughter Gulbai die before attaining her nineteenth year, my executors shall give my property and assets, that is, whatever may remain over after deducting all expenses to my respected-mother Ratanbai Hormasba or shall divide and give the same to her heirs in equal Dbares.
7. I do not see the necessity of giving anything whatever out of my munji to my husband Dhanjisha. But, as mentioned above, I give the whole of lay punji to my and his only daughter Gulbai...
2. The learned Judge was unable to hold that the will was not signed by the testatrix. He did not find himself in a position to disbelieve the evidence of the witnesses who proved the signature, but he held that it was incredible that the testatrix should have given the go-by to her husband and should have had her will prepared by her father's brother. He seems to have started with the presumption that no Parsi would under ordinary circumstances exercise her unfettered power of testamentary disposition to the prejudice of her heirs on an intestacy, and he seems to have assumed that because the executors named in the will had not been communicated with before their names were entered as executors that was a circumstance which threw suspicion upon the genuineness of the will.
3. We are of opinion that there is no presumption that a Parsi lady will leave her property to her heirs on an intestacy in preference to exercising her power of testamentary disposition.
4. We are also of opinion that there is nothing suspicious in the fact that the executors were not communicated with before their names were entered as executors in the will. This circumstance which aroused suspicion in the mind of the learned District Judge being eliminated, we will now consider whether, having regard to the rest of the evidence in the case, the lower Court was right in declining to allow probate of the will.
5. The will is said to have been prepared upon the instructions of the testatrix herself. This is proved by Sorabsha, her uncle, with whom she was living at the time and is corroborated by the statement of his son Framroz who was a pleader and was asked to draw up a will in accordance with her instructions. Her mother Ratanbai also gives evidence as to the intention of Aimai in making a will. She says that Aimai said, 'All that I have got from my father and all other things belonging to me I am going to make over the same in favour of my daughter.'
6. The instructions given by Aimai to Sorabsha as stated by him were that she was going to make a will and to give all her properties to her daughter.
7. The attesting witnesses who were two Brokers of Bombay named Madan and Dadina have given evidence which, as above stated, the learned Judge does not disbelieve, that they attested the execution of the will by Aimai at her request, and that she stated that it will was her will.
8. We do not think that there is anything improbable in the statement that Aimai wished to dispose of the property received from her father in favour of her infant daughter. Her husband was fairly well-to-do having the position of g. Post-Master in the Postal Service. Nor do we think that there is anything improbable in the story that a certain amount of secrecy was observed in the preparation of the will, for, although the testatrix is shown to have been on good terms with her husband she may have been unwilling to run the risk of offending him by making to his knowledge a testamentary disposition exclusively in favour of her daughter and therefore she may have taken the opportunity of residing separately from him in the house of her uncle to have a will prepared by her pleader cousin.
9. We, therefore, hold that the learned Judge was not right in refusing probate in its entirety of the will propounded.
10. The question however remains whether the executors have discharged the burden of proof assumed by them in propounding the will.
11. It is laid down by Lord Penzance in Chare and Forster v. Cleare (1869) 1 P. & D. 655:
That the testator did know and approve of the contents of the alleged will is therefore part of the burthen of proof assumed by every one who propounds it as a will. This burthen is satisfied, prima facie, in the case of a competent testator, by proving that he executed it. But if those who oppose it succeed by a cross-examination of the witnesses, or otherwise, in meeting this prima facie case, the party propounding must satisfy the tribunal affirmatively that the testator did really know and approve of the contents of the will in question before it can be admitted to probate.
12. Now the challenge put forward by the opponent has made it necessary for the executors to adduce evidence of the instructions given by the testatrix before the preparation of the will and it is to be observed that the statement of those instructions both by Sorabsha and by Ratanbai and the corroborative statement of the pleader Framroz do not suggest any instructions for the concluding clause of the will which provides that in the event of the death of her daughter before attaining her nineteenth year the whole of the property shall go to her mother Ratanbai or be divided among Ratanbai's heirs in equal shares. This seems to be a very unnatural provision and there is no evidence whether any instructions were given with regard to it. Having regard to the fact that the will was prepared with the assistance of Ratanbai's brother-in-law and nephew, the suspicion arises that the contingent remainder may have been created at the suggestion of Sorabsha; at any rate, the executors have not proved that the testatrix did give instructions for that clause and having regard to the evidence that she was in the last stage of consumption and lying in bed very weak we think it is by no means improbable that the terms of that clause, occurring as it does after the provision made for the daughter, escaped her notice.
13. We are, therefore, not prepared to admit the will to probate with that clause, and, following the course adopted in the Goods of Thomas Duane (1862) 2 SW. & T. 590, we set aside the decree of the lower Court and admit the will to probate omitting clause 6.
14. Costs of both parties to come out of the estate.