1. Hajee Sir Ismail Sait, a member of the Cutchi Memon community and a resident of Bangalore, died on 24th April 1934 in the Tuberculosis Sanitorium at Arogyavaram, Chittoor District. He was survived by a widow, five sons (the appellant and respondents 1 to 4) and a daughter (respondent 5). He had sixteen grandchildren, who are respondents 6 to 21. He left a will dated 19th March 1934, and the present appeal arises out of an application which was made by the executor for the grant of probate. By his will the testator provided for the education of his grandsons. For some of them he made special provisions with regard to their education and maintenance. 'While he was in the Sanitorium he decided to fix the allowance which his sons and daughter were to receive under his will and he directed his solicitors, Messrs. Moresby and Thomas, Madras to draw up a codicil to give effect to his intentions in this respect. The instructions to draft the codicil were embodied in a letter dated 5th April 1934 and; signed on the testator's behalf by respondent 1. Messrs. Moresby and Thomas prepared a draft and sent it to him on 6th April. Two of the testator's grandchildren had been at school at Aligarh. One died while at school and the other was consequently withdrawn from the school. On 13th April 1934 the testator directed respondent 1 and his agent D.L. Narasappa to write to Messrs. Moresby and Thomas in these terms:
I beg to acknowledge the receipt of your letter of the sixth instant with the draft codicil. I am grieved to inform you that since the receipt of this codicil my grandson, Abdul Sammad, suddenly died at Aligarh University. I have withdrawn my other grandson from school and have decided to cancel the allowances provided for school fees. I have therefore wired you as under : 'Your letter, sixth; since my grandson Abdul Sammad died have therefore decided omit also school fees - Don't delay - Ismail,' which I beg to confirm.
2. Respondent 1 who applied for probate of the will also asked that the telegram referred to in this letter and the letter should be read as parts of the will and admitted to probate. The learned Judge who heard the application, (Wadsworth J.) granted probate of the will, but refused to admit to probate the telegram and the letter. The appeal concerns the question whether this decision is right. The refusal of the learned Judge to admit these documents to probate was based on the opinion which he formed that they were only intended to provide material for the preparation of a draft codicil which the testator was to settle later.
3. Although according to the oral evidence the testator was in clear mind until two days before he died, he was undoubtedly seriously ill when he instructed respondent 1 and his agent to write to Messrs-Moresby and Thomas on 13th April 1934, and from the documentary evidence it is quite evident that soon afterwards he became too ill to attend to his affairs. On 14th April, Messrs. Moresby and Thomas wrote to him acknowledging receipt of his telegram instructing them to omit from the will the provisions made for school fees but asked for further instructions in order to clear up a doubt which they felt with regard to the extent of the instructions. By Clause 14(a) of the will the testator provided for the maintenance and education of the five sons of respondent 2, including provision for the pursuit of studies in England or America. In Clause (b) he made a similar provision for the education of any sons who might subsequently be born to the second respondent, and in Clause (f) he made provision for the education and maintenance of Sulaiman, the son of the appellant. Sulaiman was then reading for the bar in England. In their letter asking for further instructions Messrs. Moresby and Thomas referred to the fact that Sulaiman was in England and observed that probably the testator did not wish to make any alteration in the clause relating to him but they would be glad to know by return whether he wished them to strike out from the will Clauses 14(a) and 14(b). In addition to writing this letter Messrs. Moresby and Thomas sent him a telegram asking for instructions. The telegram and the letter were not replied to and it is obvious that this was because the testator was too ill to give instructions. On 12th April Messrs. Moresby and Thomas submitted a bill of costs to the testator and on 21st April the first respondent wrote to them stating that his father was not well enough to go through their letter in consequence of which it had not been placed before him.
4. The testator being a Cutchi Memon the provisions of the Mahomedan law with regard to wills apply. That a Cutchi Memon is governed by the Mahomedan law in this respect was held in Sarabai Amibai v. Mahomed Cassum Haji Jan Mahomed : AIR1919Bom80 and the contesting respondents have not disputed the correctness of the decision. It is also accepted, as it must be, having been accepted by the Judicial Committee, that by the Mahomedan law no writing is required to make a will valid and no particular form even of verbal declaration is necessary as long as the intention of the testator is sufficiently ascertained : see Mahomed Altaf Ali Khan v. Ahmed Buksh (1876) 25 W.R. 121. The appellant says that the telegram and the letter which he asks to be admitted to probate embody a definite decision by the testator that the provisions which he had made in his will with regard to school fees should be cancelled. If that is the position there can be no doubt that the telegram and the letter should be admitted to probate. The contesting respondents however say that the learned Judge was correct in treating the telegram and the letter as being material for the preparation of a draft and that the testator left open the definite position until the draft had been submitted to him. The case in 43 Bom. 6411 has direct bearing on this appeal. In that case a Cutchi Memon wrote to his brother-in-law, Bhai Abdullabhai, as follows:
In the will which you will, get made tomorrow and give me, be kind not to forget (to add) my 'mukhatyari' so 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.
5. On the other side of this document were the words 'Bhai Abdullabhai', the name of the brother-in-law. 'Mukhatyari' means absolute ownership or full power. The document was unattcested. The intention was that the brother-in-law should instruct a solicitor to draw up a will embodying the intentions of the deceased. It was held that the document was in the nature of instructions to his legal adviser with regard to the disposition of his property and that under Mahomedan law the document operated as a valid will which might be admitted to probate. The deceased died before the will was drawn up. Marten J. cited with approval the following statement from Mayne's Hindu Law, Edn. 8, 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.
6. He also referred to the case in Mahomed Altaf Ali Khan v. Ahmed Buksh (1876) 25 W.R. 121. In that case the Privy Council held that a document which was a power of attorney containing an expression of what was to be done with property after the death of the donor of the power operated as a will. In Mazhar Husen v. Bodha Bibi (1899) 21 All. 91 the Privy Council held that a letter operated as a will. The letter contained this statement:
You should not have the property given to (my) grandmother and paternal uncle's wife, but you should give the whole to my three sisters, who are my paternal uncle's daughters. You should see that they all get an equal share, and in the same manner as stated by me in para. 3.
7. The letter was addressed to the writer's agent. Now what is the position here? The testator having decided to make certain alterations in his will and after having received the draft codicil instructed his solicitors to amend it by inserting a provision cancelling the directions he had given in his will with regard to the school fees of his grandchildren. He wrote : 'I...have decided to cancel the allowances provided for school fees' and sent a telegram also couched in language equally clear. The testator had made up his mind what was to be done and he gave definite instructions to this end. The fact that the solicitors were not certain whether the instructions affected the grandson who was studying for the Bar in England did not alter the nature of the instructions. In these circumstances the letter and the telegram cannot be regarded as being instructions to the solicitors to submit a draft the provisions of which were to be deemed to be merely tentative. The learned Judge formed the opinion that the letter and the telegram were instructions merely for the preparation of a draft codicil which the testator would settle after perusal, but there is no evidence to be found in support of this. I can see no difference in principle between this case and the case in Sarabai Amibai v. Mahomed Cassum Haji Jan Mahomed : AIR1919Bom80 and I accept the judgment in that case as correctly deciding the question under discussion.
8. For the reasons indicated I consider that the appeal should be allowed and the telegram and the letter admitted to probate. It is not necessary to inquire what will be the effect of admitting these documents to probate. That question will be decided if and when it arises in proper proceedings. The costs of all the parties who have appeared before us will be paid out of the estate, but not on the advocate and client basis.
Kunhi Raman, J.
9. I agree with my Lord.