1. The petitioners prayed for probate of the Will of one Mariambi who died at Poona on May 16, 1922. The petition was opposed by her nephew who contended that the Will wag a forgery, and that in any event the petitioners were not appointed executors under the Will. The Judge found that the Will was not a forgery, but dismissed the petition on the ground that the petitioners had not been appointed executors by the Will.
2. We think that decision was wrong. The testatrix in her Will stated that moveable and immovable estate of about Rs. 880 was with her and she was the owner thereof. She then directed that her body should be buried and subsequent ceremonies performed according to her religion, and the expenses in connexion therewith should be defrayed from out of the proceeds of sale of her ornaments. She appointed certain persons as panchas on her behalf who, after her death, were to look after the immovable property, defray the expenses, collect the rents, and out of the nett rent they were to defray the proper expenses in connexion with the Masjid where the testatrix was living.
3. If any money out of the sale proceeds in respect of the said ornaments remained after defraying the expenses of her funeral, etc., the panehas were to spend the same for purposes connected with the Masjid according to the opinion of the majority. After directing that her nephew had no manner of right or inheritance over the immovable and moveable property, the testatrix said that after her death she had appointed the said panchas as full mukhtyars.
4. We think, in any event, that was a sufficient appointment of the petitioners as executors according to the tenor of the Will, and they were, therefore, entitled to probate.
5. As to the question, whether the Will was executed by the testatrix, the Judge has dealt with that evidence. He be lieved the evidence of two attesting witnesses. It was contended that the testawatrix could sign her name and could write and the Judge said:
Had Opponent No. 1 successfully established that Mariambi could write I should have come to a different conclusion. But only one signature of her's is produced. The fact that it appears in a public register proves nothing. I have no doubt the authorities would have permitted anyone who came with her to sign the register. The only witness who saw her signing is a relation of Opponent No. 1. Had she been able to write, it is inconceivable that no further specimens of her writing should be forthcoming.
6. Now the Indian Succession Act enables a testator to execute a Will either by signing it or by making his mark, and the fact that a person who can sign his name makes a mark would not affect the validity of the Will. If a person who can sign his name makes his mark instead, then the evidence with regard to his execution of the Will by making his mark would necessarily have to be scrutinized with great care. The decision in this case would then depend upon whether the evidence of the two attesting witnesses and the other witnesses who deposed that Mariambi put her thumbmark on the Will should be believed and we are entitled to rely upon the decision of the Assistant Judge who believed the evidence in favour of the Will. Once we come to the conclusion that we ought to support that finding, it follows that the case for the opponent that the Will was a forgery can no longer have any force in it.
7. We must, therefore, allow the appeal and direct probate to issue of the Will of the deceased Mariambi to the petitioners. The appellants well get their costs of the appeal; costs in the lower Court to come out of the estate. Cross-objections dismissed with costs.