1. This matter concerns the will of Hajee Sir Ismail Sait, a gentleman of the Cutchi Memon community, who died on the 24th of April, 1934, in the Tuberculosis Sanatorium at Arogyavaram in the Chittoor District. The petitioner, who is one of the sons of the testator, propounds a registered will dated 19th March, 1934, about which there is really no dispute, and also desires probate of two communications, which are alleged to amount to a codicil to that will, despatched by the testator to his solicitors, Messrs. Moresby and Thomas, on 13th April, 1934.
2. Most of the issues framed in this suit are entirely irrelevant to probate proceedings. The first issue in this case as to whether the deceased was governed by the Hindu or the Muhammadan law so far as it relates to the execution of his will is governed by authority, namely, Sarabai Amibai v. Mahomed Cassum I.L.R. (1918) Bom. 641, where it has been held that the Muhammadan law governs the wills of Cutchi Memons and that consequently no particular form is necessary for the execution of such a will. Nothing has been urged before me to throw a doubt as to the correctness of that ruling on this point. I am not concerned in this suit with the law governing the extent of the testator's testamentary capacity, but I do hold that he is governed by the Muhammadan law so far as the execution of the will and the alleged codicil are concerned.
3. The execution of the registered will has been formally proved and there is no doubt that it was validly executed by the testator when in a sound disposing state of mind. The issues relating to the provisions of the will and the extent of the properties which are validly covered by the will and the rights of the widow to maintenance are, to my mind, quite irrelevant to probate proceedings.
4. The only issue remaining is issue 4 which relates to the telegram and the letter dated 13th April, 1934, which together are alleged to constitute a codicil effecting a partial revocation of the will of the 19th of March. Two witnesses, whose evidence I see no reason to distrust, have spoken to the circumstances in which this telegram and the letter were written and despatched. There was an application for the examination on commission of the petitioner. But, as it appears that his evidence will add nothing to the evidence of these two witnesses who were present and know the circumstances of the despatch of this letter and telegram and whose evidence I propose to accept entirely, I see no reason to delay the decision of this suit by examining on commission a witness whose evidence will add nothing to the materials available for the disposal of this case.
5. Before going into the circumstances relating to this alleged codicil, it is desirable to give a very brief summary of the will itself. The will appoints three executors of whom two have renounced and the petitioner Mr. Mahomed Yoonus is the sole remaining executor and trustee. It conveys certain specific properties to the trustees for certain specific charitable purposes. After these provisions, the shares of the testator in his firm are divided amongst his various descendants and the balance is to go to the wakf which is constituted over the residue of the whole estate. Then, certain gifts and loans are, confirmed and the whole of the residue is to be transferred to the wakf trustees who are directed to provide for the education of the grandsons now living and after-born sons of the first' respondent, the marriage of the first respondent's existing daughters and his after-born daughters and the other granddaughters, for the education of a named grandson, and any balance left after making these provisions is to be held by the wakf trustees of the wakf estate with an ultimate remainder to certain specified religious purposes. Meanwhile, the income is * to be devoted to the education and marriage expenses of the descendants of the testator and there is a provision that any payments out of the wakf income are to be additional to the education and marriage provision made in the body of the will.
6. At the time when this will was made, the testator had been for a considerable time in the Tuberculosis Sanatorium at Arogyavaram. Very shortly after it was registered, he was already in communication which his solicitors about a codicil and he wrote on the 5th of April giving directions for the preparation of a codicil with certain blanks which were to be filled up by him. On the 6th of April the solicitors sent a draft codicil accordingly. Then on the 13th of April come these two communications which are alleged to have the effect of partially revoking the registered will. These consist of a telegram, Ex. C, which runs as follows:
Your letter 6th. Since my grandson Abdul Samad died. Have therefore decided omit all school fees. Don't delay. Ismail.
7. The evidence shows that this telegram was typed by the stenographer, P.W. 1 to the dictation of the testator and that it was not signed by the testator himself. At the same time, the letter, Ex. B, was despatched. This letter acknowledges the letter of the 6th with the draft codicil, intimates the death of the grandson at school and says:
I have withdrawn my other grandson and have decided to cancel the allowances provided for school fees. I have therefore wired you as under.
8. Then the wire is repeated. The letter is signed by the petitioner and by P.W. 2, Mr. Narasappa, who was the chief accountant under the testator, 'By order'. The evidence shows that this letter was also written to the dictation of the testator himself, and that, though both the signatories were in the habit of signing for the testator, it was unusual for both of them to sign any one communication. It also shows that at the time of the telegram and the letter the testator himself was clear in his head, carried on his business and physically quite capable of signing for himself. On receipt of this letter and the telegram, the solicitors wired and wrote to the effect that the instructions were not clear enough for a re-draft of the codicil, and the evidence is that this letter and the telegram were seen by the testator but his condition was so bad that those who were responsible for his care did not place them before him for orders and his directions were not taken regarding them. He died oh the 24th.
9. There is no doubt that Section 70 of the Indian Succession Act does riot apply to this will, that the ordinary Muhammadan Law governs the execution and revocation of the will, that the will need not be in any particular form and that it can be revoked by any definite expression of a present intention to revoke it. An attempt has been made to argue that Section 92, Clause (4) of 'the Indian Evidence Act prevents the revocation of a registered will by an unregistered document. It seems to me that this contention does not require any serious consideration. Sections 91 arid 92 apply only to contracts, grants and dispositions of property, and a will is neither a contract nor a grant nor a disposition of property until the death of the testator makes it operative. I have been referred to the case already quoted, Sardbai Amibai v. Mahomed Cassum I.L.R. (1918) 43 Bom. 641, as authority for the somewhat drastic position that any letter written by a Muhammadan to his solicitor telling him what his intentions are with reference to the making of a future will is itself a will. It seems to me that this proposition has only to be stated in those terms for its unsoundness to be apparent. It is true that the decision which I have just quoted does appear to treat as a will a document which might be described as a direction to the lawyer to prepare a will. If it is to be regarded as a decision that any letter by a Muhammadan to his lawyer telling him the terms in which a will is to be drafted, is itself a will, I can only say that with all respect I dissent from it. Actually, I do not believe that such a rule can be spelt out of this judgment which really only goes to the extent of holding that the letter is good evidence of the testamentary intentions of the testator and that in the circumstances of that case, the testator being at the time dying from cancer of the tongue and unable to speak, there were grounds for concluding that those testamentary intentions were finally declared.
10. The circumstances of the present case are very different. Here we have the testator who had made a will drawn up in due form, attested and registered. After making this will, he communicates with a firm of European Solicitors and gets a properly drafted but incomplete codicil. After receiving that draft codicil, he communicates again with the solicitors instructing them to make certain alterations in that draft and urging them not to delay in the process. It seems to me quite clear that the testator did not intend his letter and telegram to Messrs. Moresby and Thomas to be a codicil or to be in themselves the revocation of a former will, either in whole or in part. Clearly, what he intended was that the solicitors should draw a proper draft codicil embodying the modifications communicated since the preparation of the previous draft, and he had every intention after approving the draft and filling in the blanks to execute that codicil formally as he had done with the previous will. Granted that the will of a Muhammadan need not be drawn in form, and granted that it need only be a declaration of the testamentary intentions of the testator, it seems to me imperative that there should be evidence which would justify a conclusion that the testator intended that the declaration which he made of his intentions should be of itself operative and that it should not be merely the basis for making a draft which he would subsequently scrutinise, correct and amplify before signing it. Had the testator intended that this letter and telegram should revoke any portion of his registered will, I cannot believe that he would have abstained from signing them himself and directed his servants and attendants to sign for him. Clearly, he regarded these communications as nothing more than instructions to his solicitors on the basis of which they were to prepare the document which itself was at some future date to effect a revocation of a portion of the will. While, therefore, it is, to my mind, quite possible that a letter by a Muhammadan to his solicitor might operate to revoke a will, I do not for a moment believe in the circumstances of this case that it was the intention of the testator to revoke any part of his will by this letter or this telegram. I believe that the letter and the telegram were intended to serve no other purpose than to provide materials for the preparation of a draft. A mere expression of an intention to revoke a will at some future date cannot amount to a revocation of the will under any system of law, so far as I am aware.
11. In the view I hold, the letter and the telegram dated 13th April, 1934, cannot be admitted to probate as a codicil to the will dated 19th March, 1934. Probate will, therefore, issue of the will dated 19th March, 1934. Taxed costs of all parties will come out of the estate.
12. Costs to be taxed for all parties as between attorney and client.