Mr. Ameer Ali. :-

This appeal arises out of an application by the petitioner, a Parsee lady named Mrs. Moti Bai Kanga, in the Court of the District Judge of Bangalore for the probate of a will which she alleges had been executed by her husband shortly before his death, on the 17th August, 1920. The probate was granted by the District Judge, Mr. de Rozario, on the 19th December, 1921. His order was, however, reversed by the Resident of Mysore, Mr. Barton, who appears to have exercised, in his official capacity, the appellate jurisdiction over the Civil Court in Bangalore; hence the appeal to His Majesty in Council.

The testator, Mr. Hormusjee Rustoomjee Kanga, resided in Bangalore, and he is described as having been a turf accountant. He became ill on the 2nd August, 1920, and his medical attendant, a doctor named Mylvaganam, diagnosed his complaint as malaria; but as he became gradually worse, his wife and friends became anxious and called in two other doctors in consultation with Dr. Mylvaganam. They were of opinion that it was not malaria but sceptic poisoning, and they prescribed accordingly. The will is alleged to have been executed in the evening of the 16th August, and was registered by the Sub-Registrar of the Civil and Military Station, Bangalore, shortly after its execution. From his name (Mr. Burby) the Sub-Registrar appears to be an Englishman. As his evidence, in their Lordships' opinion, is of the utmost importance in the determination of this appeal and is very short in substance, they propose to quote it in full :-

"I am Sub-Registrar of Assurances, C. and M. Station, Bangalore. I was so in August, 1920. I remember the 16th August, 1920. I was called to the residence of Mr. Kanga and a will was there given to me for registration. I registered it. Exhibit A is the will. It was signed by Mr. Kanga in my presence unaided. I had no suspicion whatever that anything was wrong with the will. I satisfied myself that Mr. Kanga was perfectly right in his mind." He was not cross-examined at all on behalf of the caveator, the eldest son of the deceased, Mr. Kanga. His case was, in the first place, that his father was not competent or in such a condition, mentally or physically, as to make a valid disposition; in the second place, that if it was competently made, it was made under the undue influence of his wife, the petitioner. The petitioner is the second wife of the deceased. He appears to have married her in 1917, and it is in evidence that they lived harmoniously and on good terms.

The attesting witnesses to the will are Aga Abbas Ali, a Mohammedan gentleman residing in Bangalore; a Mr. W. H. Thomson, an Englishman carrying on business in that city; and Dr. Mylvaganam. The facts connected with its execution are testified to by two Hindu gentlemen of the names of Mr. C. Sundara Raja Naidu and Mr. C. N. Suryanarayana Rao, a Parsee of the name of Mr. K. D. Belgaumwala; and a Mr. F. DSouza, a furniture dealer.

As the deceased became gradually worse, it was considered advisable he should execute a will. It is not clear from the evidence from whom the proposition emanated, but there is nothing to show that it was not with his approval. Mr. Suryanarayana Rao, a prominent pleader of the Bangalore Bar, was asked by Mrs. Kanga to draft the will. He excused himself on the ground that he was a close friend of the deceased and apprehended a dispute; he would rather it was prepared by some other lawyer. He accordingly introduced Mr. Naidu, another pleader, as a fitting man or the purpose. Mr. Naidu states that he came to the house on the 16th August and obtained Mr. Kanga's personal instructions about the will. His statement on this point is as follows :-

"Mr. Kanga asked Mrs. Kanga to take some bank-books and title deeds from an almirah and a chest of drawers. She took out some documents from each and handed them over to Mr. Kanga, who took up the books and documents one after another and gave me instructions. As he gave instructions I t