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. 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. 96 ( 1929- 1930) Vellasawmy Servai V. Sivaraman Servai 247 The appeal was then heard upon the facts. Nov. 22. Their Lordships, therefore, have no hesitation in disposing adversely of this preliminary objection. Law. Rep. 57 Ind. App. 96 ( 1929- 1930) Vellasawmy Servai V. Sivaraman Servai 247 The appeal was then heard upon the facts. Nov. 22. The judgment of their Lordships was delivered by SIR BINOD MITTER [after stating the facts and examining the evidence, the judgment said as follows] The respondent, the propounder of the will of 1924, is the principal beneficiary under it. Even according to the evidence of Tangasawmy (one of the attesting witnesses), which the High Court accepted, but which the trial judge wholly disbelieved, the respondent took a leading part in giving instructions for the will and in procuring its execution and registration. Circumstances exist in this case that would excite the suspicion of any probate Court and require it to examine the evidence in support of the will with great vigilance and scrutiny, and the respondent is not entitled to probate unless the evidence removes such suspicion and clearly proves that the testator approved of the will. In their Lordships opinion the respondent has wholly failed to do so. This would be sufficient to dispose of the appeal, but in fact the District Judge, who saw the witnesses, wholly disbelieved the evidence of the preparation and execution of the will of 1924, and their Lordships are not prepared to dissent from him in his estimate of the evidence of the witnesses on these points. They accordingly hold that the decree of the High Court should be reversed and that of the District Judge restored. The respondent should pay the costs of the appellants of this litigation, except that the appellants should pay the cost of their application before the Board to adduce additional evidence. The respondent would be entitled to set off these last mentioned costs against the costs which he has to pay to the appellants. Their Lordships will humbly advise His Majesty accordingly.