JUDGMENT

1. These are two miscellaneous appeals directed against the orders of the Civil Judge of Rae Bareli dated lith July 1938 and 16th August 1938, respectively. The former order was to the effect that the appellants were liable to pay court-fee on the entire value of the estate of the testator. Miscellaneous Appeal No. 86 of 1938 is directed against this order. The second order was that the value of the property likely to come into the hands of the appellants was Rupees 1,45,384-4.4 and the court-fee payable thereon was Rs. 4815-6-0, which the appellants were directed to pay within 15 days. Miscellaneous Appeal No. 94 of 1988 is directed against this latter order. Both these appeals are being disposed of by this judgment. A short pedigree, which is not disputed, will serve to elucidate the facts.

2. (See pedigree on page 152)

3. Ganga Prasad executed a will on 15th November 1934, in respect of his entire estate. He died on nth September 1935. Under this will, Ganga Prasad appointed 20 executors including the appellants. One of these executors, namely Babu Shanta Datt Ram, did not join the appeal and was impleaded as respondent 13. These executors applied for a probate of the will under Section 276, Succession Act. This case was numbered as miscellaneous case No. 49 of 1937. In this application they stated that 102 bighas of jungle land in Sheora, the proprietary rights of the entire village Dindauli and the under-proprietary rights of the plots as detailed in list "A" attached therewith had immediately come to the petitioners' hands. Mt. Kamlapati, the widow of the testator, and Mt. Tirath Kuar, his daughter, filed an application in which they stated that they accepted and ratified the will executed by Ganga Prasad deceased and that they had no objection to the probate being granted to the appellants. They further stated that mutation of names was effected in favour of the appellants as trustees of the Ganesh Technical Educational Trust, Gangaganj, in respect of the property for which they asked for a probate and that the remaining property was mutated in their own names. Damodar Prasad however entered a caveat and denied the genuineness and validity of the will. He alleged that the testator was not in a sound disposing state of mind at the time he was alleged to have executed the will. He opposed the granting of the probate. His sons, Suraj Prakash and Chandra Prakash, also entered a caveat and opposed the grant of the probate. Various other objections were raised to the validity of the will. Ganga Prasad, the testator, was alleged to be a habitual drunkard and was alleged to be in a state of intoxication during the time of the execution of the will. It was also alleged that the testator was the head of the joint Hindu family consisting of himself and his brothers and was incompetent to make the will. The will was also alleged to be opposed to the provisions of the Trusts Act and the Oudh Estates Act.

TABLE

4. Mt. Tirath Kuar, the daughter of the testator, also filed an application for probate (case No. 57 of 1937) on the ground that she had been appointed an executrix under the will for realisation of three debts only. She asked for a probate in respect of one promissory note dated 28th March 1931, executed by Nanak Prasad for Rs. 3463 in favour of the deceased testator. She confined her application to one out of the three debts. A number of issues were framed by the learned Civil Judge. He held that the will was genuine and was duly executed by Ganga Prasad. He also held that Ganga Prasad was of sound disposing mind when he executed the said will. His further finding was that it was not executed under the influence of interested persons who were beneficiaries under the will. He further held that the will was not unenforceable under the Trusts Act, nor was it opposed to the provisions of the Oudh Estates Act. One of the issues in the case was whether the application for a part of the estate was maintainable or not. Upon t