1. This is an application for the grant of probate of the will of one Surendra Nath Pal, who died on 30th April 1927. The will is dated 15th July 1923, and was therefore made more than four years before the death of the testator.
2. By that will the testator made certain dispositions of his property and he left the whole of the residue of it to his widow whom he appointed to be the executrix of that will. When the widow applied for probate of the will in the ordinary course a caveat was entered by a brother of the deceased (named Narendra Nath Pal) who filed an affidavit alleging that his brother was at the time he made the will and up to the time of his death a man of weak intellect and had a very imperfect knowledge of English. He also alleged in effect in his affidavit that the will was procured by the undue influence of the widow. But there was a still more serious allegation in the affidavit in that the caveator contended, or at any rate, stated that the will was not genuine, and in effect he said that it was a forgery.
3. In the last paragraph of his affidavit he says:
I therefore insist upon the said will being proved in solemn form and that I be given the liberty to cross-examine the witnesses produced in support of the will.
4. When the case was called on, the learned Counsel who appeared on behalf of the caveator made it clear that he did not intend to rely on any of the matters set out in the affidavit but that he merely required the plaintiff in this suit to prove the will in solemn form.
5. If ever there was a case where a will might be said to have been executed under thoroughly satisfactory conditions in my opinion it was this case. The will itself is a holograph will, i.e., written entirely by the testator in his own handwriting. That fact of itself is a very strong indication that the testator was fully cognizant of what he was doing and that what he did was an act of his own volition.
6. If the caveator had taken the elementary precaution of inspecting the will before he recklessly began making charges with regard to his brother's state of mind he must have known perfectly that the will was actually in the handwriting of the brother. More than that, not only did the testator write out the will in his own handwriting but he took the sensible and reasonable course of getting entirely independent and responsible persons to be the witnesses to his will. Apparently the caveator thinks it is a matter for regret and a fact which ought to cast some doubt on the authenticity of the will that the caveator selected such independent and responsible persons to be witnesses to the will....
7. I should have thought every reasonably minded person would have seen how much more satisfactory it is to have independent persons to be witnesses to a will. Had the testator adopted the course which the caveator suggests he should have taken, namely, to call in his own relations such as the caveator himself or his sons to witness the will, then it was obvious that some other branch of the family would have immediately alleged that those witnesses had exercised an improper influence on the testator.
8. The attesting witnesses, who were called, testified that this will is in the handwriting of the testator and that it was duly executed by the testator in the presence of the various gentlemen whose names appear as witnesses.
9. It is quite clear that all of those witnesses to the will are responsible persons. There is not a shadow of reason, not a sciutilla of evidence, for suggesting or for ever having suggested that this testator was not fully cognizant of what he was doing or that this will was not properly executed. A more baseless intervention by a caveator, a more unwarrantable intervention by the caveator than the intervention in this case is to my mind impossible to imagine. There was absolutely no shadow of justification at all for the entering of this caveat.
10. Now it is argued that the effect of this affidavit is to bring the matter within the terms of Rule 29, Ch. 35 of the Rules of this Court. I have had occasion to construe that rule quite recently In Re the goods of Cohen; Cursinder v. Cohen, Suit No. 4 of 1928 and I pointed out that that rule is a reproduction of the English Rule 18, Order 21, of the Rules of the Supreme Court in England.
11. It has been held that under the English rule that a notice such as is contemplated by the rule must be served with the defence and Rule 29, of the rules of this Court provides:
that a party opposing a will may by his affidavit give notice that he merely insists upon the will being proved in solemn form.
12. It is to be observed that the rule contains the word 'merely,' and therefore I do not think that the last paragraph of the affidavit in the present case is sufficient to bring the matter within the terms of Rule 29, particularly having regard to the fact that it has been laid down by a very high authority in England that a plea of undue influence or fraud is inconsistent with notice. I refer to the case of Ireland v. Kendall  1 P. & D. 194, also to Cleare v. Cleare  1 P. & D. 655. reported in the same volume at p. 655, but especially to the case of Harrington v. Bowyer  2 P. & D. 264, where at p. 265 Lord Penzance said, referring to the case of Cleare v. Cleare  1 P. & D. 655:
That case establishes the proposition that where a party setting up a will has to prove affirmatively a fact not merely to negative a charge made by his opponent, where a proof of such fact forms part of the burden, which the party propounding the will takes upon himself, the other party may cross-examine the witnesses upon such matter without liability for costs if the proper notice has been given. The question is, whether under the circumstances of this case, it is proper that I should exercise my discretion as to costs in favour of the defendant. I think the Court should be consistent in exercising its discretion; and as it has been already decided in Ireland v. Rendall  1 P. & D. 194, that under similar circumstances a party pleading undue influence is liable for costs, 1 shall follow that decision.
13. These cases show quite clearly that if a caveator merely intends to require the executrix to prove the will in solemn form he must not at the same time set up a defence of undue influence or fraud or any matter of that character. Therefore I hold that in this present case notice was not given in such a way as to bring the matter within the terms of Rule 29. But I desire to add that in this particular case the circumstances are such that in any event it would be impossible for the Court to do otherwise than come to the opinion that there was no reasonable ground at all for opposing the will and, therefore, even if the matter had fallen within the terms of Rule 29, it would not have followed that the caveator would be entitled to escape liability fox costs.
14. I think it is eminently desirable that persons should be discouraged from recklessly launching probate suits or causing probate suits to be brought especially when there is no other foundation whatsoever for the charges which they recklessly make other than the fact that they feel sore or disappointed because they do not happen to be named as beneficiaries in the will in question. This in my opinion is essentially a case where a caveator should pay the whole of the costs of the executrix and I make an order accordingly.
15. I pronounce in favour of the will and direct that grant of probate do issue.