Judgement

Appeal (No. 37 of 1928) from a decree of the High Court (February 26, 1926) reversing a decree of the District Judge of Hanthawaddy (February 26, 1925).

The appeal arose out of an application by the appellants under the Probate and Administration Act, 1881, for a grant of probate of the will dated January 22, 1906, of It. Mooniandy, who died on February 16, 1924, and a counter-application by the respondent for a grant of probate in respect of a

Law. Rep. 57 Ind. App. 96 ( 1929- 1930)

Vellasawmy Servai V. Sivaraman Servai 246

will of the same testator dated January 23, 1924.

The District Judge ordered the matter to be tried as a regular suit and framed issues.

Upon the oral and documentary evidence the District Judge found that the evidence of the two attesting witnesses to the will of 1924 was false, and granted probate of the will of 1906.

The High Court (Rutledge C.J. and Maung Ba J.) reversed the decision, and admitted the will of 1924 to probate.

An application to the High Court for leave to appeal to the Privy Council was granted, the value of the property involved being admittedly considerably more than Rs.10,000. The learned judges (Rutledge

C.J. and Carr J.) declined to follow the decision in Po Kin v. Ma Sein Tin (( 1919) 10 L. B. Rulings, 22.) that no appeal lay in probate cases. They were of opinion that the provisions of the Code of Civil Procedure as to appeals to the Privy Council applied.

1929. Oct. 15. Pennell for the respondent. The present appeal is not competent. It was rightly held in Po Kin v. Ma Sein Tin (( 1919) 10 L. B. Rulings, 22.) that the provisions as to appeals to the Privy Council in the Code of Civil Procedure do not apply to matters dealt with under the Probate and Administration Act. Although the administration of that Act is confided to judicial officers they act purely under, and for the special purposes of, the Act, which gives no such right of appeal. The grounds of the Boards decision in Rangoon Botatoung Co. v. The Collector, Rangoon (( 1912) L. R. 39 I. A. 197.), are applicable. Sects. 55 and 86 of the Probate and Administration Act, 1881, correspond with ss. 54 and 55 of the Land Acquisition Act, 1894, upon which that case was decided. Although appeals in similar probate matters have been heard by the Board it does not appear that the present objection has been raised or determined.

Dunne K.C. and Kenelm Preedy for the appellants were not called on upon the preliminary objection.

Their Lordships dismissed the preliminary objection by the following judgment delivered by

VISCOUNT DUNEDIN. The point has been taken that no appeal to this Board lies against a judgment of the High Court pronouncing for or against probate of a will on a question between two competing wills. That is rather a startling proposition, because, as the learned counsel admitted, there have been such appeals. He relied upon Po Kin v. Ma Sein Tin (( 1919) 10 L. B. Rulings, 22.) decided by the Court of Lower Burma. That case was cited to the High Court in the present case, but the Court refused to follow it. The reason given by the Court which decided Po Kins case was that the case was analogous to Rangoon Botatoung Co. v. The Collector, Rangoon. (2) Their Lordships entirely agree with the view of the High Court that no analogy whatever exists.

The proceeding in the Rangoon Botatoung case (( 1912) L. R. 39 I. A. 197.) was under a special provision for fixing the value of land taken under the Land Acquisition Act, and though the Act contained a section giving rights of appeal, the section did not mention an appeal to the Privy Council.

But when, as here, there is a suit which is undoubtedly a competition between parties seeking to establish different wills, there is no reason why it should not fall under the general words in s. 109, and the following sections, of the Code of Civil Procedure.

Their Lordships, therefore, have no hesitation in disposing adversely of this preliminary objection.

Law. Rep. 57 Ind. App.