1. This is a curious case. The petitioner who is the widow of a Cutchi Memon applies for probate of a document as being the last will and testament of her deceased husband, which document is in the following terms according to the official translation :--
May it be known to Bhai Abdulabhai us follows: In the will which you will get made tomorrow and give me, be kind not to forget (to add) my 'Mukhatyari' as long as I am alive and after me my wife's 'Mukhatyari.' Whatever costs may be incurred I will pay you. Written by your servant Mahomed Hasam Haji.' (On the other side) Bhai Abdulabhai.
2. 'Mukhatyari', I should explain, means absolute ownership or authority or full power.
3. Now this gentleman Abdulabhai is the testator's deceased sister's husband, in other words, his brother-in-law. He has made an affidavit and I have also seen him in the witness box, and I may say that I am satisfied that this document was written by the testator and given to the witness under the Circumstances stated in his affidavit.
4. The testator was a Cutchi Memon and in some respects Cutchi Memons are governed by Hindu law. Further, the document in question is not attested. But I think it is quite clear, and at any rate there is an express authority of this Court precisely in point, that Cutchi Memons are governed by Mahomedan law as regards the execution of their wills, and that under Mahomedan law no attestation is necessary. The case I refer is In re Aba, Satar (1905) 7 Bom. L.R. 558 and is a decision of Mr. Justice Tyabji. So far, therefore, as that point is concerned, I think no difficulty arises.
5. But the point on which I have felt difficulty was whether this document can fairly be regarded as a will. Having regard to which the testator was, all we are concerned with is the Probate and Administration Act. Under Section 3 of that Act the definition of will is:
'will' means the legal declaration of the intentions of the testator with respect to his property, which he desires to be carried into effect after his death.
6. The declaration must, therefore, be a 'legal declaration.' But I see nothing here which, according to Mahomedan law, is illegal. In fact by that law an unsigned declaration or even an oral declaration is sufficient. The document in question is therefore a legal declaration, and prima facie it would seem to be a declaration of 'his intentions with respect to his property which he desires to be carried into effect after his death.' It is true that this document might be construed and probably is in the nature of instructions to his legal advisers or to his relative as to the instructions to be given to the legal adviser as to the disposition of the property, but as to that I think one may compare what is said in Mayne's Hindu Law, 8th Edition, page 588:
So, a paper drawn up in accordance, with the instructions of the testator, and assented to by him, will be a good will, though not signed. And if a paper contains the testamentary wishes of the deceased, its form is immaterial. For instance, petitions addressed to officials, or answers to official enquiries have been held to amount to a will...Similarly a matrimonial arrangement deed and deeds of assignment have been held to operate as a will.
7. In a case before the Privy Council of Mahomed Altaf Ali Khan v. Ahmed Baksh (1876) 25 W.R. 121 a document there which was a power of attorney having an expression of what was to be done with the property after the death of the person giving the power was held to operate as a will.
8. Further, it seems to be the case that if the solicitor had drawn up the document in accordance with the intention of the testator as being his will and he had assented to that that would have been a valid will although not signed by him.
9. Here we have the converse case for we get the original instructions of the testator to the solicitor. I think, therefore, that his original instructions should be as valid as the more formal document that the solicitor would, in the ordinary course, have drawn up in accordance with those instructions.
10. Abdulabhai, as I have said, has been in the box and he says that he told the testator that he would send for the vakil the next day and prepare a will to that effect, that is to say, to the effect mentioned in the document in question. I think this shows that the document really contained the testamentary intentions of the testator. I should perhaps explain that the reason for all this was that the testator was lying on his deathbed suffering from cancer of the tongue and was unable to speak properly at the time and that he died two days after the date of this letter.
11. On the whole, although this case is near the line, I think that, having regard to the fact that the parties are Mahomedans, this document was a valid will and may be admitted to probate accordingly. I should have mentioned that there was at one time a caveat lodged by the testator's brother disputing the document as a will. That caveat has been withdrawn and I dare say the reason for it is that probably at a subsequent stage it will be contended that all that the widow takes under the document is a Hindu widow's estate. If that contention is correct, the question is largely academic whether this is a good will or not, for the property will devolve in the same way as on intestacy. But as I have intimated in my view it is a good will and accordingly I admit it to probate.