1. Two questions have been referred to this Full Bench for consideration. They are:
(1) Whether an application for the grant of probate of an oral will can be entertained under the Probate and Administration Act (Act 5 of (1881);
(2) whether the Act would apply to a case where the substance of the oral will was taken down by a witness at the time.
2. If the questions were res integra and we had to consider nothing but the provisions of the Probate and Administration Act (Act 5 of 1881) there would be considerable difficulty in holding that a. probate of an oral will would be granted.
3. No doubt the definition of 'will' though not that of 'codicil' in Section 3 was wide enough to include an oral will. But 'probate' was defined as meaning the copy of a will certified under the seal of a Court of competent jurisdiction, with a grant of administration to the estate of the testator. We then had Sections 24, 25, 26 and 27 relating to the grants limited in operation. The language of these sections presupposed that the will had been lost or mislaid or was in the possession of a person residing outside the province or that it was in existence but was not forthcoming. The language of these sections was therefore appropriately related to a written will and not to an oral will. Lastly we had Section 62 which referred to the application to be made for probate which must have the will annexed or in the cases mentioned in Sections 24, 25 and 26 a copy, draft or a statement of the contents thereof annexed and must also state that it was duly executed. It did not expressly say that was to be done in the case of an oral will. Section 63 referred to the case-where the will was in a language other than English, of which a translation had to be annexed.
4. Reading these sections together, it would have followed that the procedure laid down for the grant of a probate related to the probate of a written will and not an oral one.
5. No doubt under the Succession. Act (Act 10 of 1865) privileged wills made by soldiers or mariners need not be wholly in writing. Then there was Section 187 which laid down that no right as executor or legatee could be established in a Court of justice unless a Court of competent jurisdiction had granted probate of the will under which the right was claimed. But the language of Section 244, Succession Act, though similar in some respects to that of Section 62, Probate and Administration Act, was not absolutely identical, as the latter section had the words allowing the annexing of 'a copy, draft or statement of the contents of the original will' limited to the cases covered by Sections 24, 25 and 26. It might also have been difficult to interpret Section 62, Probate and Administration Act, not according to its plain language but in the light of the difficulties which might arise under the Succession Act. However the fact remains that the Bombay High Court In re Haji Mohamed Abba  24 Bom. 8 held that a probate of a nuncupative will could be granted. This case was followed by the Allahabad High Court in Gokul Chand v. Mangal Sen  25 All. 313, where the difficulties were fully appreciated but it was considered more convenient and in accordance with the practice in England to admit probate of an oral will.
6. The legislature has now consolidated these two Acts and passed the Succession Act (Act 39 of. 1925). It permits of oral wills being made by Mahomedans as well as by soldiers, mariners and airmen, whose wills are not required to be in writing. The language of Section 276 is almost identical with that of the old Section 62, Probate and Administration Act. It does not expressly refer to oral wills. It must be presumed that the legislature was aware of the trend of rulings in this country. And when in re-enacting the statute, it had adhered to the former phraseology, we are justified in inferring that the interpretation laid down in the rulings has been approved of by the legislature.
7. If oral wills are not to be admitted to probate there would certainly be one serious difficulty in the way of soldiers, mariners and airmen. Section 213 of the new Act does not exempt them and lays down that their executor or legatee cannot establish the will without having obtained probate or letters of administration. If Section 276 does not permit of a probate being granted of an oral will, their wills would be nullified in their effect.
8. We may further note that although the will in this case was made before the new Act came into force and would accordingly not be invalid, the application was made shortly before the coming into force of the new Act. The Act lays down a rule of procedure and not a substantive law and therefore there is no reason why the new Act should not govern these proceedings. It is also obvious that there was nothing to prevent the applicant from withdrawing this application and filing a fresh application as soon as the new Act came into force. Having given the case our best consideration we think that the rule laid down in Gohul Chand v. Mangal Sen should be followed.
9. Our answer to the first question is therefore in the affirmative.
10. In our opinion the fact that the substance of the oral will was taken down at the time the will was made would not make any difference in the eye of the law. That fact would only be a strong piece of evidence to prove the contents of the oral will.