Judgement

CONSOLIDATED appeal from a decree of the Judicial Commissioner (Feb. 9, 1888), reversing a decree of the District Judge of Lucknow (March 28, 1887), and restoring a decree of the Subordinate Judge of Lucknow(Nov. 1, 1886).

Law. Rep. 19 Ind. App. 83 ( 1891- 1892) Nawab Sahib Mirza V. Mussammat Umda Khanam

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The facts are stated in the judgment of their Lordships.

As to the second will in 1876, the Subordinate Judge observed that it bad not been produced, nor had it been proved that it had been duly executed, the probability being that it had not been executed, for in that case the testatrix would surely have withdrawn the will of 1860 from the wasika officer, or had it otherwise set aside. That there was not anything in the will of 1860 to indicate that it was made for a temporary purpose only, that its fulfilment did not depend solely on her returning from her pilgrimage, that it was not a conditional will. As to the validity of the prior will, the Court held that she could not make a devise out of the wasika, but there were other properties from which the stipends were to be paid, and these were not affected by Act XXIII. of 1871.

That from the 3rd and 5th clauses of the will, the pension of Rs. 4500, which the testatrix drew at one time, and which was discontinued in 1873, seemed to be included. Nawab Malka Jehan, however, had several lakhs of rupees in Government Promissory Notes, a very large proportion of which came into the Appellants possession as heirs, and that therefore the discontinuance of the pension did not deprive the Plaintiffs of their right to the stipends claimed, nor was it a revocation of the will, nor was the will revoked by the subsequent large gifts above mentioned. The Court therefore held that Plaintiffs were entitled to their stipends out of all moveables of the testatrix inherited by the Defendants. The word " etcetera " in the 5th clause was comprehensive enough to include all moveables.

The District Judge held that the covering letter of the testatrix, dated the 6th of December, 1876, sending the second will to the Commissioner, shewed that the terms of the new will differed from those of the will of 1860, that Sahib Mirza was appointed executor in the place of the Chief Commissioner, and a poor-house was provided for, that she had revoked her will of 1800, and had drawn up a new one, the distribution of the large sum of Rs. 18,500 to some of the legatees of the first will was evidence in support of the revocation, and silence in the letter of the 6th of December, 1876, in regard to the will of 1860, pointed to Nawab Mulka Jehan having executed the will of 1860 for a temporary purpose only. The District Judge therefore ordered the Plaintiffs suits to be dismissed.

The Judicial Commissioner generally concurred in the findings of the Court of first instance. He was of opinion that the correspondence of the Queen with the local authorities in 1876 clearly proved the animus revocandi, but it went no further ; that, on the contrary, it shewed that the new draft will was then not finally completed, that it was not registered, though she was expressly recommended by the Government to do so, and so the natural inference was that she laid aside her intention when she found that Government would not assist her; that this conclusion was strengthened by the fact that [she did not withdraw her will of 1860 from the wasika office. That this first will was an elaborate document, and there was nothing therein to shew that it had been executed for a temporary purpose only.

Rigby, Q.C., and C. W. Arathoon, for the Appellants, contended that this last decision was erroneous, and that the decree of the District Judge should be restored. The preamble of the will of 18G0 and its terms generally, the testatrix having made no reference thereto in her correspondence of 1876, and the effect of other acts on her part, shewed that that earlier will was intended to be effective only in case of her death while away