Judgement

Consolidated Appeal (No. 13 of 1945), by special leave, from two judgments and two decrees of the High Court (December 16 and 22, 1937) which reversed two judgments and two decrees of the Court of the Subordinate Judge, First Class, Khandwa (June 15 and 21, 1934).

These two appeals, which were consolidated, arose out of two suits, the first of which was brought by the appellants in the first appeal, or their predecessors in title, claiming possession of a house and certain land and the house thereon. In the second appeal the sole appellant claimed possession of three muafi fields.

The trial court decreed both suits, but, on appeal, the High Court (Stone C. J. and Bose J.) dismissed them.

The facts appear from the judgment of the Judicial Committee. In the first appeal the principal question for determination was whether a will, which was thirty years old, and was produced out of proper custody, and as to which both courts below had held that a statutory presumption as to due execution arose under s. 90 of the Indian Evidence Act, should be presumed in the absence of any evidence to the contrary to have been made by a person of competent understanding.

1946. July 2, 3. Pringle K.C. and Ralph Parikh for the appellants in the first appeal and the sole appellant in the second appeal. With regard to the will of Bahadur Singh, the question is whether " duly executed " in s. 90 of the Evidence Act covers only formalities, or whether it involves a presumption of testamentary capacity—that everything has been done to render the document valid and binding. No such presumption as to testamentary capacity should have been drawn under s. 90. The English rules of evidence do not apply, and the High Court erred in relying on Symes v. Green (( 1859) 1 Sw. & Tr. 401). The Evidence Act is exhaustive, and the construction put on s. 90 by the Subordinate Judge—that the statutory presumption applies only as to due execution, but not as to testamentary capacity— is right. [Reference was made to Sris Chandra Nandy v. Rakhalananda Thakur (( 1940) L.

R. 68 I. A. 34, 45.), Mst. Afsar Begum v, Saiyed Muhammad Yusuf (( 1929) I. L. R. 5 Luck . 526.), Kotayya v. Vardhamma (( 1930) A. I. R. (Mad.) 744.) and Nidh Kaur v. Gian Singh (( 1938) A, I. R. (Lah.) 55.).]

Rewcastle K.C., Khambatta K.C. and Jayakar for respondents 3 and 4 in the first appeal. If the argument for the appellants were accepted no weight would be given to the word “duly " in s. 90 of the Evidence Act. " Duly “executed means effectively executed without any incapacitating circumstances, and the presumption is in favour of sanity. The provision “duly " in s. 90 makes it clear that the presumption applies equally to testamentary capacity Mortimer on Probate Law and Practice, 1st ed., pp. 58-9, citing Symes v. Green (1). There was here no evidence to rebut the presump tion of testamentary capacity ; the will is on its face rational, is old and is proved to have been signed. [Reference was made to Robins v. National Trust Co. ([ 1927] A. C. 515.) on concurrent findings.]

Khambatta K.C. followed.

Pringle K.C. replied. " Duly" has a strict meaning referring to formalities.

The respondents to the second appeal did not appear.

July 29. The judgment of their Lordships was delivered by SIR JOHN BEAUMONT. This is a consolidated appeal, by special leave, from two judgments and two decrees, dated December 16, 1937, and December 22, 1937, respectively, of the High Court of Judicature at Nagpur, which reversed two judgments and two decrees dated June 15, 1934, and the June 21, 1934, respectively, of the Court of the Subordinate Judge, First Class, Khandwa.

The two appeals, which are consolidated, arise out of two suits in ejectment. The suit to which the first appeal relates was brought by the appellants, or their predecessors in title, claiming possession of a house and certain land in a town and the house thereon. In the suit to which the second appeal relates the appellant claimed possession