Begum v Din and Another (Civil Appeal No, 16 of 1951) [1951] EACA 102 (1 January 1951)

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR BARCLAY NIHILL, President, SIR NEWNHAM WORLEY, Vice-President, and PEARSON, Ag. C. J. (Uganda)

## RASHIDA BEGUM, Appellant

## (1) ADMINISTRATOR GENERAL and (2) KARAM DIN, Respondents

## Civil Appeal No. 16 of 1951

(Appeal from decision of His Majesty's High Court of Uganda—Ainley, J.)

Will-Mohammedan testator domiciled in Uganda-Will partially oral and partially in writing—Construction. Adopted daughter whether included in "other relatives"—Intention by testator to exclude his brother in written portion—Necessity to read both written and oral portions as a whole.

The testator, a Mohammedan born in Pakistan but at the date of his death domiciled in Uganda, adopted the appellant as his daughter. He made a will partly written and partly oral. The Uganda Succession Ordinance, section 50, in prescribing the rules for execution of unprivileged wills, provide that nothing therein should affect the validity of any will made by a Mohammedan ... according to the provisions of Mohammedan law. Mohammedan law permits a will to be oral or in writing or partly oral and partly written.

The written portion, made five months prior to death, gave such property as the testator inherited in Pakistan to the children of one whom he described as "once his brother and with whom I had severed all my relations since 1936". It also referred to his adopted daughter according to religion being dear to him "even more than my real daughter". There was no bequest of the residue. On the day before his death the testator made certain oral statements confirming dispositions in the written portion of his will and these were followed by a statement that the testator wished the remainder of his property to be divided as to onethird between his two wives, one-third among his other relatives and one-third to charity.

The Administrator-General administering the testator's estate submitted certain questions to the High Court for directions inter alia:-

- (i) as to whether the bequest of the third of the residue to the testator's other relations was to be distributed as if deceased had died intestate vide section 80, Uganda Succession Ordinance; - (ii) if it were not to be so distributed were the testator's brother and his adopted daughter excluded from the sharing in the distribution. - The High Court held that— - (i) the bequest to charity failed and one-third of the residue was to be distributed as in an intestacy; - (ii) the testator's brother was not excluded from the class of other relations; - (iii) the testator's adopted daughter was excluded from that class; - (iv) the two wives were excluded; - (v) the Court could look at section 80 for assistance and the "relations" were to be determined in the way section 80 directs and the property must be distributed as if the testator had died intestate in respect of it;

۱ę.

(vi) the property must be distributed according to the rules of Mohammedan law governing an intestacy but excluding the two wives.

Held $(2-10-51)$ .—(1) The testator's adopted daughter was not included in the words "other relations".

(2) That the written and oral portions of the will must be looked to as a whole and the brother, the second respondent, is excluded from the class of persons to share in the bequest of one-third of the residue.

Cases cited: Douglas-Menzies v. Umphelby, (1908) A. C. J. C. 224; Perrin v. Morgan, (1943) I All E. R. 187.

Wilkinson for appellant.

Munroe, Administrator-General (Uganda).

Parekhji (with Korde) for Karam Din.

JUDGMENT (delivered by SIR NEWNHAM WORLEY, Vice-President).—This appeal involves the construction of the will of Cooknan Mughal Imam Din (hereinafter referred to as the testator), a Mohammedan, who was born in what is now the State of Pakistan and died in Uganda having acquired a domicile of choice there. The appellant was adopted when a mere baby by the testator and his wife and we were informed by her counsel that the testator actually (though falsely) registered her under the Births and Deaths Registration Ordinance as the child of himself and his wife. The second-named respondent is the only brother of the testator: the first-named respondent was, with the consent of all parties, granted letters of administration with the will annexed by the High Court of Uganda. As such administrator the Administrator-General has from time to time applied to the High Court for directions under section 31 of the Administrator-General Ordinance and the present appeal is from a ruling of the High Court of Uganda on one of these applications filed on 20th September, 1950.

The effect of the ruling and the points in issue on the appeal will be more easily appreciated if I first set out the material portions of the will and the relevant circumstances. The statute law of Uganda affecting wills and succession on intestacy is to be found in the Succession Ordinance (Cap. 163 of the Laws of the Uganda Protectorate, 1935). Section 50 of that Ordinance prescribes rules for the execution of unprivileged wills but it is in that section further provided that nothing therein shall affect the validity of any will made by a Mohammedan or a native according to the provisions of Mohammedan law or native custom, as the case may be. It is common ground that a Mohammedan may make a will either orally or in writing or partly orally and partly in writing. The testamentary disposition of the testator in the present instance was partly written and partly oral; there is no dispute as to the validity of either portion and it is agreed by all parties that these two acts of disposition must be taken as one will and construed as one. This is the principle to be followed where the expression of a testator's wishes about his estate is contained in two or more testamentary writings: Douglas-Menzies v. Umphelby (1908), A. C. J. C. 224, at page 233. As is there said, it is inaccurate to speak of a man leaving two wills, he does leave and can leave but one will. I do not doubt that this principle equally applies where the expression of the deceased's wishes is partly written and partly oral when the appropriate law recognizes the validity of an oral testamentary disposition.

The written portion of the testator's will was written in Urdu at Kampala on 29th December, 1948; the portions most material to this appeal, as translated, read as follows:—

"My hereditary village is Kotli Loharan East. All the property inherited by me from my ancestors in that village I give to the children of Karam Din son of Umar Din, once my brother and with whom I had severed all my relations since 1936 when he used to reside in Kampala. The aforesaid Karam Din has no brotherly connexion with me since long nor do I consider myself his brother. Neither I nor my wives have got any right or interest of any kind in my inherited property situated at Kotli Loharan.

Rashida Begum wife of Zahoor Din son of Miran Bux though she is an adopted daughter according to the religion but she is dear to me even more than my real daughter. In Kampala, Uganda, wherever I have got movable or immovable property that property is my personal property and no one else has any right or interest over that. The entire property here I have acquired by myself with the help and blessings of Almighty God."

Next, after a bequest of Sh. 50,000 to one Mohamed Azim, described as a cousin, who had worked for him for many years, and after acknowledging a debt to a bank, the testator set out a list of his immovable property, item 4 of which reads as follows: —

"4. Plot No. 84 William Street, Kampala, only vacant land. On this land there is a store built with old iron sheets. Since I have purchased this plot I have dedicated it to my daughter Rashida Begum though the land is still registered in my own name. I have a desire to put up a building worth Sh. 30,000 on it and then to transfer the property in the name of Rashida Begum. If death did permit me to fulfil my desire then it is my duty to complete a building otherwise it is the duty of my heirs to complete the same after my death."

I pause here to record that the High Court has ruled that this clause is a devise of the plot in question, coupled with a bequest of Sh. 30,000, to the appellant and that no appeal has been lodged from that ruling.

The next clause in the writing is as follows:-

"My two wives have a joint plot, No. 78 in South Street, Kampala, in their name as the sole proprietors thereof. I have got no right in that plot nor my heirs will have any right to interfere therein."

The remaining clauses of the writing acknowledge the deposit of certain sums of money with the testator by strangers and refer to certain disputes over money with other strangers and are not relevant to the present issue. There was no gift of residue and it is, I think, conceded that the specific bequests did not exhaust in extent or value the whole of the testator's property at that date.

The oral portion of the testator's will was evidenced by the affidavit of Dr. Kapur, the medical practitioner who attended him during his last illness and knew him well. I set out in full the material paragraphs of this affidavit: -

- "(ii) On 10th day of May, 1949, at about 10 a.m., I was called in to treat the said Iman Din and he was dejected and believed he was dying. He stated to me and to the other persons hereafter mentioned as present that he wished that after his death the sum of Sh. 50,000 of his property should be given to Mr. Mohamed Azim, his nephew, in recognition of his long and faithful services. He desired Sh. 5,000 to be given to Mohamed Jamal who assisted him at his ginnery and a further Sh. 5,000 when the said Mohamed Jamal went to Pakistan to get married; - (iii) the said Iman Din further stated that the house now registered in the names of his two wives was in fact their property; - (iv) the said Iman Din further stated that he had written already everything else and desired to be buried next to his mother at Kampala;

- (v) the said Iman Din further stated that he wished the remainder of his property to be divided as to one-third between his two wives the onethird among his other relations and one-third to charity; - (vi) there were present with myself at the time Sofi Noor Mohamed, the husband of the niece of the said Iman Din, one Jamal Din and younger wife of the said Iman Din, namely Khurshid Begum; - (vii) I saw the said Iman Din in the evening of the same day and was present again when he died at about 3.45 a.m. on the following morning. He added nothing on those occasions to the wishes he had previously expressed."

I may note here that no affidavits by the other persons named in paragraph (vi) were filed and that Dr. Kapur's affidavit was accepted by all parties. The deponent does not state in what language the testator spoke but counsel have accepted the words sworn to as being those used by the testator or at least the true English equivalents of his words. This is of particular importance as regards the word "relations" in paragraph (v), on which this appeal really turns, and, if I understood counsel aright, there is no dispute that even if some vernacular word were actually used by the testator, it would have carried the same meaning as the ordinary natural meaning of the English word "relative" or "relation" in this connection, that is to say, a person connected with or related to the testator by blood or marriage.

In the application filed on 20th September, 1950, several questions were submitted to the High Court for directions, of which the following are relevant to this appeal:-

- (2) Whether the bequest contained in paragraph 5 of the affidavit of C. L. Kapur (which contains a record of the deceased's oral will), of one-third of the residue of his property to 'his other relations' is, having regard to the provisions of section 80 of the Succession Ordinance (Cap. 163), to be distributed as if the deceased had died intestate in respect of such bequest. - (3) If this honourable Court holds that the bequest hereinbefore referred to in paragraph 2 above is not to be distributed in accordance with the provisions of section 80 of the Succession Ordinance are the following persons to be excluded from sharing therein— - (a) Karam Din (reference is invited to the following words in paragraph 4 of the deceased's written will: 'The aforesaid Karam Din has no brotherly connexion with me since long nor do I consider myself his brother'. - (b) Rashida Begum, the deceased's adopted daughter."

Section 80 of the Succession Ordinance provides as follows: -

"80. Where a bequest is made to the 'heirs' or 'right heirs' or 'relations' or 'nearest relations' or 'family' or 'kindred' or 'nearest of kin' or 'next of kin' of a particular person, without any qualifying terms and the class so designated forms the direct and independent object of the bequest, the property bequeathed shall be distributed as if it had belonged to such person, and he had died intestate in respect of it, leaving assets for the payment of his debts independently of such property.'

The learned Judge who heard the application ruled—

(i) that the bequest to charity failed, and the one-third share of residue affected thereby fell to be distributed as on an intestacy. There is no appeal lodged from that part of the ruling;

- (ii) that the testator's brother, Karam Din, was not excluded from the class of "other relations"; $\mathcal{A} = \mathcal{A} \oplus \mathcal{A}$ $\gamma_{\rm{eff}}\rightarrow\gamma$ - (iii) that the appellant was excluded from that class; - (iv) that the two wives were excluded and that his exclusion of the wives must be regarded as a qualification of the bequest to "relations"; - (v) that such qualification did not debar the Court from turning to section 80 for assistance; that the "relations" were to be determined in the way section 80 directs and that the property (scil. the one-third of residue) must be distributed as if the testator had died intestate in respect of it; - (vi) that this property must be distributed according to the rules of Mohammedan law governing an intestacy but excluding the two wives. This last ruling is based upon an Order made by the Governor, in exercise of powers conferred on him by section 333 of the Succession Ordinance, directing that the rules for the distribution of intestate estates in the said Ordinance shall not apply to Mohammedans.

Before proceeding to consider the grounds of appeal from these rulings, I think it as well to record that, on a previous application, the learned Judge had ruled that the testator, having acquired a domicile of choice in Uganda, was free to dispose of the whole of his property by will and that his power to testamentary disposition was not restricted to the limitation of one-third prescribed by Mohammedan law. The correctness of that ruling has not been questioned by any of the parties to this appeal and we have therefore not been called upon to consider it.

The grounds of appeal as set out in the appellant's memorandum are: $-$

- "(1) The learned Judge erred in holding that section 80 of the Succession Ordinance applied without modification to the distribution of the remainder of the estate of deceased dealt with in the verbal part of the will of deceased. - (2) The learned Judge erred in holding that the words 'other relatives' in the verbal part of the said will should be interpreted to include Karim Din and to exclude the appellant and that the learned Judge should have held that the appellant was to be included therein and Karim Din excluded."

But it is the rulings which I have set out as (ii) and (iii) above which are really in dispute, for I understood all parties to agreed that, whoever may be excluded from or included in the class which takes the one-third share of residue bequeathed to the "other relations", the respective shares of the individuals in that class are to be calculated according to the rules of Mohammedan law governing distribution on intestacy. The appellant is not so much interested in outsing the brother, Karam Din, as in getting herself admitted to the class of beneficiaries; but the Administrator-General in an able and forceful argument, has contended that Karam Din should be excluded and the appellant included. The question therefore is resolved into a very small compass and turns upon the proper construction of the words "other relations" in the context of and circumstances surrounding the will.

The argument for the second-named respondent, which prevailed with the learned Judge in the Court below and was repeated before us, was, briefly that the testator used the word "relations" in its ordinary natural sense as meaning all persons connected to him by a nexus of blood; that in the absence of evidence to the contrary it could not be extended to include an adopted child or a person reputed to be related to him, such as the appellant; and that if he had intended to include her and exclude his brother he would have used words apt for that

purpose. Counsel conceded that in the earlier written testamentary disposition the testator had expressed great bitterness against his brother but submitted that, in the interval, the testator might have repented and, moved by a sense of duty or family affection, intended to benefit his brother. In effect, the argument was that the oral disposition should be regarded as a codicil modifying the earlier, written will. $\cdot$

The case for the appellant was that on a proper construction of the will the Court was precluded from holding that section 80 applied without any modifying term and should hold that the testator used the word "relations" in his own special sense as excluding not only the wives but also the brother and as including the appellant. Further it was contended that any suggestion of a change of heart towards the brother during the four months which passed between the written and the oral expression of his wishes was negatived by the reaffirmation of the written will.

f.

I now turn to consider how the learned trial Judge dealt with these submissions and reached the conclusion he did. After referring to the opinions in the House of Lords in *Perrin v. Morgan* (1943), I All E. R. 187, and in particular to the speech of Lord Romer at page 197, he says: -

"No doubt as Lord Romer says it may be shown that a man has been his own dictionary. But yet when a man in his will uses a plain word one must be most cautious I think in giving to it other than its plain meaning, The position here is strange indeed. The testator on his death-bed used a word which has a very plain meaning not only to lawyers and those who deal in rules of construction, but to ordinary men and women. He used a word which signified those connected with him by the nexus of blood. It was rather more than four months earlier that he wrote the words of Karam Din and Rashida Begum which have been quoted. Too much should not be made of the gap in time perhaps for the testator on his death-bed referred to what he had written. But to turn to Karam Din's case, it is not as if the testator, sitting at his desk had written 'Karam Din is no brother of mine', and then on the next line had written 'One-third of my property shall go to my other relations'. The references to Karam Din and Rashida Begum are not so intimately connected with the expression 'relations' as that, and the difference in time and circumstances between the references and the expression 'relations' makes me pause before I agree with an argument which would turn certain parts of the written will into interpretation sections governing the oral will. The testator uses strong and vivid phrases in the written part of his will emphasizing the sad dissension with his only brother. He seems to explain the passing over of his brother in the matter of the Pakistan property by reference to his bitter feeling. But are these emphatic phrases more than a vivid way of describing dissension. Are they really to colour and interpret what is said four months later. My view is that they are no more than bitter and vivid descriptions of an estrangement and that they cannot properly be regarded as interpretive of a plain word used four months later. It is really, I think, to snatch at a turn of phrasing to say that under these peculiar circumstances the testator when he used the word 'relations' on his deathbed was using the word in a limited and peculiar sense of his own. It would, I think, be dangerous and speculative to say that at the time and under the circumstances at which the testator used the word he did not mean what he said, and since he used a word which in its plain meaning included his brother I hold that his brother Karam Din is not excluded from among the testator's relations by reason of the will. As to Rashida Begum I feel less difficulty. To my mind it is reasonably clear that the testator uses with regard to her phrases indicative simply of great affection. With regard to her I do find it necessary to rely on Mr. Parekhji's argument touching the word 'other' before relations, though it has weight. What I have said with regard to Karam Din applies, I think, with even greater force in her case. This girl, loved as a daughter as the testator declares, has had special provision made for her, and it does not seem to me at all probable that having so dealt with her the testator would, becoming his own dictionary, intend to include her by using the plain word 'relations'. Yet if it was his intention I cannot see that by the use of loving phrases he has expressed that intention. I think that Rashida Begum is not included among the testator's 'relations' as that phrase is used in the oral will."

In my view the learned Judge correctly refused to accept the view that the testator was giving the word 'relation' a special sense of his own whereby he intended to include the appellant.

At the risk of seeming platitudinous, I propose to set out the principal canons for construction of wills which seem to me relevant to this question: -

- (1) The only principle of construction which is applicable without qualification to all wills and overrides every other rule of construction is as follows: The intention of the testator is collected from a consideration of the whole will taken in connexion with any evidence properly admissible, and the meaning of the will and of every part of it is determined according to that intention (Halsbury's Laws of England, Hailsham edtion, Vol. XXXIV, paragraph 240). - (2) For the purpose of ascertaining the intention the will is read, in the first place, without reference to or regard to the consequences of any rule of law or of construction. Words are given that meaning which is rendered necessary in the circumstances of the case by the context of the whole will, the particular passage concerned being taken together with whatever is relevant in the rest of the will to explain it. The will itself is taken as the dictionary from which the meaning of the words is ascertained, however inaccurate such meaning would be in ordinary legal usage. The only qualification on this application of the general principle is that a clear context is required in order to exclude the usual meaning of a word. Relative terms, and other terms needing a context to make them intelligible, can only be explained by the context (ibid: paragraph 242). - (3) The Court makes any reasonable inference from a particular passage, comparing that inference with what is apparent in other parts of the will. This power of inference, however, is limited: a general intention not carried out by some appropriate words in the will itself cannot give the Court the right to place the words there for the testator, and $a$ priori reasoning upon what the testator would naturally intend cannot be allowed to weigh against the proper construction of the words used (ibid: paragraph 244). - (4) It is a general rule that, subject to the foregoing rules, words are to be first read, in the case of ordinary words, in their grammatical and ordinary sense. Where the words so interpreted are sensible in reference to the surrounding circumstances, that is to say, where these circumstances do not deprive the words of all reasonable application when so interpreted, this sense of the words must be so adhered to (ibid: paragraph 246). The ordinary meaning of a word is the meaning given it by the ordinary usage of society, that is to say, the testator's society, of that class and period in which he lived and moved. (Ibid: paragraph 249.)

(5) To deprive words of their appropriate usual sense there must be sufficient to satisfy a judicial mind that they were meant to be used by the testator in some other sense, and to show what that other sense is, and the burden of proof lies on those who attribute to the words such other sense. (Ibid: paragraph 246.)

It must I think be conceded by the appellant that the ordinary meaning of the word "relation" does not include an adopted child. It certainly does not when used by an Englishman or in English common law and it was admitted by her counsel that adoption in Mohammedan law has no legal effect. I think it may be inferred from the written part of the will that the testator was himself aware of this for, although he had in fact registered the appellant as his own child, he yet refers to her as "an adopted daughter according to the religion". The onus, therefore, lies on the appellant to justify the special meaning of the word here contended for and she sought to do this by reliance both on the fact of registration and on the words which follow those just quoted, namely, "but she is dear to me even more than my real daughter". The testator had no "real daughter" so these words may fairly be read as meaning that the appellant was dearer to him than a real daughter would have been. The argument is that this passage shows that the testator considered the appellant as his own daughter and must be taken to have intended to include her when he referred to his "other relations"; that when he comes to deal with Plot No. 84 he is not making a bequest to her of this but merely confirming a long-standing intention to "dedicate" this to her, together with a house to be built thereon worth Sh. 30,000; and that it is unreasonable to infer that he did not intend to include in his residuary bequest one who was so dear to him. That may be so or it may not; it is equally possible that he thought that the provision of a plot and house or Sh. 30,000 was sufficient for her in her circumstances. All that seems to me to be mere speculation. There is no evidence of his intentions apart from the will and we can only look into his mind as disclosed by the words he used. It is not possible to separate entirely the consideration of the appellant's case from that of the second-named respondent and much of what I shall have to say later in considering the brother's position applies equally to the adopted daughter, in particular the obligation to consider the will as a whole and the significance of the word "other". The learned Judge in the Court below did, I think, put the matter very clearly when he said: "This girl, loved as a daughter as the testator declares, has had special provision made for her, and it does not seem to me at all probable that, having so dealt with her, the testator would, becoming his own dictionary, intend to include her by using the plain word 'relations'. Yet if it was his intention I cannot see that by the use of loving phrases he has expressed that intention". I respectfully agree and in my view, therefore, the appellant has failed to discharge the onus cast upon her and the appeal on this point fails.

But I find myself unable to accept the learned Judge's view that the secondnamed respondent is not excluded from among the testator's relations by reason of the references to him in the written part of the will. I think with respect, that the Judge has here fallen into the error of regarding the written and the oral parts of the will as two separate dispositions, the earlier of which could not be used to interpret and govern the later, and that he has overlooked or failed to give sufficient weight to the testator's reaffirmation on 10th May, 1949, of his previous testamentary writing. When the testator said to Dr. Kapur that he had "already written everything else", he must be presumed to have referred to the whole of that writing including the part which concerned his brother. I am unable to agree with the learned Judge that the emphatic phrases therein used are "no more than bitter and vivid descriptions of an estrangement". They must, in my view, be considered in relation to what immediately precedes and follows them. Their context is also, in my view, the answer to the suggestion put forward by counsel for the second respondent that the testator, sensible of the approach of death, may have repented of his animosity to his brother and have been moved by a sense of duty or family affection to make some provision for him. It is significant that the remarks concerning the brother follow immediately after the disposition of the ancestral property in Pakistan. It is evident to me that the testator did feel himself under a duty to keep this in the family: he had no son of his own so he discharged this duty by devising it to his brother's children and goes on to explain why he is not giving it to his brother in words which express, as strongly as words can do, a repudiation of the relationship and imply a rejection of any claim on the part of his brother to a share in his bounty. Then, having disclaimed for himself or his wives any further interest in the ancestral property, and after the reference to the appellant quoted above, the testator refers to his "personal" property" movable and immovable in Kampala in which no one else has any right or interest. It seems to me quite clear that he was drawing a distinction between his ancestral and his self-acquired property; that he considered his duty in respect of the former to be sufficiently discharged by bequeathing it to his brother's sons; that he felt himself free to dispose of the self-acquired property as he thought fit and that he did not recognize any claim on the part of his brother to share in either. Not only can I see no evidence of any change of heart towards his brother in anything which he said to Dr. Kapur but the evidence is that he reaffirmed these earlier dispositions on his death-bed.

I also find myself unable to agree with the learned Judge that the primary significance of the word "other" in the context which we are considering here is to emphasize the distinction between wives and relations. I do not overlook the general rule of grammar that relative expressions are prima facie referable to the last antecedent, and that the juxtaposition of the expression "other relations" to "wives" gives colour to the learned Judge's interpretation. It must not be forgotten, however, that we are dealing with a testator who was *inops consilii*, and are not even construing a testamentary writing. Accepting the order in which the testator's directions or wishes were expressed as that set out in Dr. Kapur's affidavit, they were certainly not divided into separate numbered paragraphs; those we owe to the draftsman who prepared the affidavit. The testator's wishes were given as a whole and must be construed as a whole and, when this is done, the true intention expressed in the term "other relations" emerges as a distinction between, on the one hand, those for whom provision has been made or whose claims have been considered and rejected and, on the other, those for whom no provision has been made.

$\cdot$ On this reading of the will we have, first, a reiteration and confirmation in the oral testament of specific bequests given in the previous writing, together with a new bequest to Mohamed Jamal, an employee; a reiteration and confirmation of the repudiation of any claim his brother might be thought to have; and a confirmation of his wives' interest in the plot registered in their names. The testator then proceeds to dispose of the residue by dividing it equally between the two wives, charity and his "other relations". I can find nothing in this language to justify the inclusion in this expression of anyone who has been specifically referred to in the earlier part of the will, and the will, when so read, seems to me to disclose a logical and consistent sequence of thought.

In my view, therefore, this appeal should be allowed to the extent of varying the ruling of the Court below by declaring that the second-named respondent is excluded from the class of persons to share in the bequest of one-third of the residue. I am confident that this view correctly represents the intention of the testator towards his brother as expressed in the will: about the exclusion of the appellant I am not quite so certain. But, at least, if the wraith of the testator

is among that group of ghosts, referred to by Lord Atkin in *Perrin v. Morgan* (supra, at pages 194, 195), who wait on the other bank of the Styx to receive the judicial personages who have misconstrued their wills, I am satisfied that if my view prevails in this Court, his ghost will be in great measure appeared even if not laid quietly to rest.

**Solution** I think it may fairly be said that the testator himself was responsible for this litigation by the informal manner in which he elected to dispose of his not inconsiderable estate and I would therefore award all parties their costs out of the general estate. I have read the judgment of the learned President and agree with the order proposed.

SIR BARCLAY NIHILL (President).—The facts and circumstances by which this neculiar case has reached this Court are so fully set out by the judgment of my learned brother the Vice-President, which I have had the advantage of reading. that I do not propose to recapitulate them. I have come to the same conclusions as the learned Vice-President for the following reasons: I accept, of course, the canons of construction set out by him and I am of the same opinion that the written and oral parts of the testator's will must be regarded as one testamentary disposition. Our task in determining the true intention of the testator is made easier by the fact that no party interested in the will has at any time challenged the substantial accuracy of Dr. Kapur's affidavit. We have, therefore, before us a complete testamentary disposition of the deceased's property and effects consisting $(a)$ of a written document, and $(b)$ an accepted sworn statement of certain testamentary wishes expressed by him on the day before his death, which occurred on 11th May, 1949. Looked at in this way I have no hesitation in finding that the testator said nothing to Dr. Kapur on the 10th May, 1949, from which it can be inferred that on his death-bed he took up a different position with regard to his brother, the second respondent, than the one which he expressed in such unequivocal terms in his writing dated the 29th December, 1948. On the contrary it is clear from the affidavit that he said something to Dr. Kapur from which it can only be inferred that he was expressly confirming what he had already written. On the 29th December, 1948, he had declared in writing that he had severed all relations with his brother since 1936 and that he did not regard him as his brother. He confirms this writing orally to Dr. Kapur on the 10th May, 1949, and he then proceeds to tell Dr. Kapur that he wants a third of his residue to go to his other relations. It being not in dispute that a Mahommedan can in law make a valid will by an oral statement. I can hardly conceive of a clearer case where the context of the testamentary disposition taken as a whole requires a modification of the usual meaning of a word used by a testator. The testator here had declared and confirmed that he did not regard his brother as a relation, how could he then have intended to include his brother in the term "relation" used by him when he came to arrange the disposition of the residue of his property? Accordingly I also hold that the ruling of the Court below must at least be varied by the exclusion of the second respondent from the class of persons to share in the bequest.

I now come to the position of the appellant. Here I also agree with the learned Vice-President that the learned Judge was right to exclude her from the ambit of the term "other relations", although I would do so on grounds rather different to those relied on by the learned Judge. Again taking the context of what was written and what was spoken together I find no difficulty in inferring beyond any doubt that when the testator used the word "other relations" to Dr. Kapur he had no intention of conferring some additional benefit upon his adopted daughter for whom he had already made provision. Indeed it seems to me unnecessary to speculate as to whether the deceased regarded the appellant, whom

he loved dearly, as a relation or not, for I would go so far as to say, that even had the appellant been his real daughter, in my opinion the context would require the interpretation that when he spoke of his "other relations", he meant and meant only relations other than his wives and those for whom he had already made provision or had expressly excluded.

In effect then the order of this Court is that the Administrator may proceed with the distribution of one-third of the residue of the deceased's property on the basis set out by the learned Judge at the conclusion of his ruling dated 2nd October, 1950, but excluding not only the deceased's wives but also the second respondent and also of course the appellant.

The costs of each party to this appeal to come out of the general estate. Whether the beneficiary Mohamed Azim, whom we note is described by the testator in his written document as "a cousin", and in Dr. Kapur's affidavit as "a nephew" be excluded is not a matter which we can determine in these proceedings, because there is not material before us to show whether he is a person who would take under an intestacy by Mohammedan law. If he is, he too, must be excluded.

PEARSON, Ag. C. J. (Uganda).—I agree.