JUDGMENT Ghulam Hasan and Misra, JJ. - This is the Plaintiffs' appeal arising cut of the dismissal of the twit by the Civil Judge of Sitapur. 2. The history of the case presents unusual features as will appear from the following facts: 3. Shankar Bakbsh Singh, described an a Thakur but a Kayasth by birth, became a Christian in 1902 and died as such on the 29th July, 1922, He had no male issue and left on his death a widow Mst. Raj Rani, a daughter Bindeshwari Devi and Shiva Ram Saran Singh, the son of a predeceased daughter. These, are the Plaintiffs in the present suit and the Defendants are the three sons of Ganga Bakhsh Singh, a cousin of Shankar Bakhsh. Ganga Bakhsh died on the 19th October, 1929. The suit was commenced on the 9th September, 1937, by the Plaintiffs for a declaration that the will dated the 28th July, 1S04, executed by Shankar Bakhsh is inoperative and ineffectual and that in any cost the Defendants have co right, title or interest in the properties in suit. A further declaration was sought that Mst, Raj Rani is entitled to hold the properties in suit under the earlier will of Shankar Bakbsh dated the 19th June, 1901, or that all the Plaintiffs are entitled to the same as heirs at law of Shankar Bakhsh under the Indian Succession Act. 4. Shankar Bakhsh was admittedly the owner of the estate known as Rampur Kaiah in Sitapur district. There were certain decrees outstanding against Shankar Bakhsh and his state remained in the possession of the Deputy Commissioner of Sitapur as Receiver from 1892 up to the 11th July, 1901, when be was declared a "disqualified proprietor" under the provisions of Section 8(d)(1) of the Court of Wards Act (III of 1899) and the property was taken over by the Court of Wares which remained in possession thereof till his death in 1922. Shankar Bakhsh acquired a certain amount of notoriety for his habit in making will, some of which were prompted by his devotion to the Christian faith and others by surely monetary considerations, and it would be as well to give a brief retire of the various testamentary dispositions which he made inasmuch as they are not merely matters of historical interest but afford a valuable guide as to the mentality and intention of Shankar Bakhsh. 5. 5. The first will was made on the 14th January, 1899, bequeathing his whole property to the American Methodist Mission giving a certain monthly allowance to his wife and mother (Ex. 5). He had embraced Christianity in about 1889 but was formally baptized in 1902 and died as a Christian on the 29th July 1922. 6. The second will was executed on the 21st August, 1900, with a codicil dated the 19th September, 1900, bequeathing his whole estate to Ganga Bakhsh who was charged with the duty of paying off his debts. (Ex. 7). The will recited that the testator had received Rs. 500 from Ganga Bakhsh. 7. Ganga Buksh on the other hand executed an agreement undertaking to give a life estate to Shankar Bakhsh's wife and allowances to his two daughters. 8. The third will was made on the 16th May, 1901, leaving the whole estate to the minor son of his paternal aunt in consideration of Rs. 7,000, advanced to him. (Ex. 9). It contained no provision for his wife and daughters and appears to have been made solely with a view to raising a loan. 9. It is interesting to note that the Commissioner characterised the first will to be monstrously unjust, the second to be not in itself unfair and the third will as regarded by the Daputy Commissioner as being not altogether straight forward. These opinions were expressed as the question of taking the estate under the Court of a Words was then under contemplation. 10. Shankar Bakhsh executed the fourth will on the 19th June, 1901, reciting therein that the mention of the loan of Rs. 7,000, in the third will was fictitious and bequeathed the whole estate to Mst. Raj Rani absolutely. 11. On the 1st August, 1901, the estate was taken over by the Court of Wards as Shankar Bakhsh was unfit to manage the property. After this date Shankar Bakhsh, as a ward, was not competent to execute any will without obtaining the consent of the Court of Wards u/s 34 of Act III of 1899. Raj Rani absolutely. 11. On the 1st August, 1901, the estate was taken over by the Court of Wards as Shankar Bakhsh was unfit to manage the property. After this date Shankar Bakhsh, as a ward, was not competent to execute any will without obtaining the consent of the Court of Wards u/s 34 of Act III of 1899. Under this section a ward was not competent to dispose of the property by a will without the consent of the Court of Wards, provided that the Court of Wards was not to withhold its consest if the testamentary disposition was not contrary to the personal or special law applicable to a ward, and did not appear likely to cause pecuniary embarrassment to the property, or to lower the influence or respectability of the family in public estimation. 12. This section was slightly amended in 1912, by Act IV of 1912, the corresponding Section 37 of which laid down that a ward shall not be competent to dispose of his property by will without the consent in writing of the Court of Wards given either previously or subsequently to the making of the will but during the lifetime of the testator. The proviso in Section 34 reproduced above remained unaltered. 13. On the 30th November, 1901, Shankar Bakhsh executed the 5th will (Ex. 12) without obtaining the consent of the Court of Wards, as he was required to do u/s 34. The will was registered on the 3rd December, 1901. The will recited that his previous will of June 1901 did not adequately express his intentions. He cut down the absolute estate of his wife to a life estate restricting her enjoyment of lit with the concurrence of Ganga Bakhsh. Upon her death the estate was to go Ganga Bakhsh and after him to his three sons. Provisions were made for the daughters, the mother and others. Ganga Bakhsh executed a separate agreement (Ex. 13) on the 3rd December, 1901, by which he undertook to make up the allowance of Rs. 50 per mensem made by the Court of Wards to Shankar Bakhsh and two-thirds of the Income of the sir land to Rs. 280 per mensem, which he considered to be necessary for his maintenance. Ganga Bakhsh executed a separate agreement (Ex. 13) on the 3rd December, 1901, by which he undertook to make up the allowance of Rs. 50 per mensem made by the Court of Wards to Shankar Bakhsh and two-thirds of the Income of the sir land to Rs. 280 per mensem, which he considered to be necessary for his maintenance. Any amount paid under the agreement was to be refunded in case the will was not sanctioned by the Court of Wards or was revoked by Shankar Bakhsh. The Special Manager recommended for sanction of the Board of the Revenue with the following remarks: Thakur Shankar Bakhsh has lately been exceedingly ill, when convalescent he came to me with a draft wilt, he expressed his desire to do the right thing by his estate and family. I read the will through and it appears to me to be a fair and proper one. He leaves his wife the property for her lifetime and secures allowances for his daughters and their heirs, his mother and other relatives, after his wife's death the property goes to his coashi Chaudhri Ganga Bakhsh, the IHJSJ prominent member of the family, In view of the above facts I reported (1) Commissioner office and recommended that Thakur Shankir Bakhsh should get the will registered to which you agreed, I now submit a translation together with the original will for your perusal, and if you consider the document to be a fair and legal one, beg that you will obtain retrospective sanction for the same from the Board of Revenue. If this procedure is in any way irregular I would point out the urgent necessity in the interests of the family of taking the tide at the flood. The proprietor has just recovered from an alarming illness. His mind had possibly become susceptible to better feelings, he appreciates the danger which he has gone through and wishes to do the right thing by his family. This is perceptible in the handsome way in which he has treated his wife and daughters as regards allowances. We, however, know the extreme fallibility of the Thakur's character. His mind had possibly become susceptible to better feelings, he appreciates the danger which he has gone through and wishes to do the right thing by his family. This is perceptible in the handsome way in which he has treated his wife and daughters as regards allowances. We, however, know the extreme fallibility of the Thakur's character. His action in wishing to keep the estate in the family is only a phase and innless immediately clinched of the Court of Wards, it is more than probable that in the course of a week or a month he will be again trading on his powers to bequeath the property to "every one he chooses to the utter discomposure of his family. (Ex 14). 14. The consent' to the will was, however, refused by the Court of Wards. (Ex. 15). 15. In the coursa of the correspondence the Board of Revenue intimated that they were prepared to sanction a new will by Shankar Bakhsh provided they were satisfied about his testamentary capacity and also that the will complied with the proviso to Section 34 of the Court of Wards Act. (Ex. 16). 16. On the 7th January, 1904, Ganga Bakhsh executed another agreement (Ex. 1) similar to the previous one, namely Ex. 13. This agreement recites that Shankar Bakhsh had proposed to make a bequest of his property to his wife for life and after her death to him and his three sons and in consideration thereof he executed the agreement undertaking to pay Rs. 50 to Shankar Bakhsh per mensem during his lifetime from the date on which Shankar Bakhsh executed a will in his favour and placed the same before the Deputy Commissioner of Sitapur for the sanction of the Board of Revenue. Should Ganga Bakhsh fail to carry out the contract Shankar Bakhsh was given the power to have it carried out through Court. It was further provided that if the will was not sanctioned by the Board or if it was revoked by Shankar Bakhsb, then from that date he was not entitled to the monthly sum of Rs. 50, but he would be liable to refund the money which he may have received up to that date. On the 18th January, 1904, a draft will (Ex. 17) was submitted by Shankar Bakhsh to the Court of Wards for consent. 50, but he would be liable to refund the money which he may have received up to that date. On the 18th January, 1904, a draft will (Ex. 17) was submitted by Shankar Bakhsh to the Court of Wards for consent. On the 25th May, 1904, the Board wrote to the Commissioner as follows (Ex. A-25): With reference to the correspondence ending with your letter No. 774/X-24M dated the I6th May, 1904 and enclosures regarding the will of Thakur Shankar Bakhsh Singh of the Rampur. Kalan Estate No. III in the Sitapur District, I am directed to say that in the circumstances now stated, the Court of Wards will not withhold its consent to a will of Thakur Shankar Bakhsh Singh with similar to that submitted with your letter No 586/X 24M, dated the 7th March, 1904 but altered in the light of the proposals contained in his letter of the 37th April, 1904. 17. On the 28th July, 1904, Shankar Bakhsh executed a will (Ex. 2), which is the basis of the present suit. Shankar Bakbsh did not submit this will to the Board for their sanction. It appears, however, from the Special Manager's note to the Deputy Commissioner dated the 19th December, 1905, (Ex. 20) that Ganga Bakhsh gave him the will two days ago and he heard it from him about the execution of the will. He forwarded the will to him. Another note of the Special Manager dated the 20th December, 1905 (Ex, A-31) shows that he had kept the original to return to Ganga Bakhsb. 18. On the 27th March, 1906, Shankar Bakhsh applied to the Board stating that he had a quarrel with his wife, that he had had no connection with her for the last 17 years, that he was not on good terms with Ganga Bakhsh who had made common cause with his wife against him adding that it was simply complicated chance that he executed the will in their favour. He also expressed a desire to marry a Christian Eurasian lady and asked for the Board's sanction to execute a new will with the provision that the property should go to the male issue of this wife should one be born, but if none is born, then she would inherit the property after his death. (See Ex. 22). 19. He also expressed a desire to marry a Christian Eurasian lady and asked for the Board's sanction to execute a new will with the provision that the property should go to the male issue of this wife should one be born, but if none is born, then she would inherit the property after his death. (See Ex. 22). 19. It appears that objection was taken by the Board to certain provisions of the will (Ex. 2) relating to maintenance as being opposed to law. Shankar Bakhsh was asked to submit another draft within 15 days (See Exs. 23, 25, 27, 24 and 26). Accordingly on the 8th June, 1906, ShaDkar Bakhsh submitted a new draft of will, (Ex. 30). (See Ex. 29). This draft will recited that he wanted to marry a Christian lady and proposed to give the property to her male issue failing which he would give it to her. He also gave certain maintenances to his wife, daughters and mother. If he died without marrying a Christian lady, the property would be managed by the Government and the profits distributed among the Ministers of the Christian Churchss in Oudh. The Board withheld its consent to this will (vide Ex 31). The Board of Revenue wrote to the Deputy Commissioner asking him to inform Shankar Bakhsh that the will dated the 28th July, 1904, was null and void and if be wished to execute a similar will, he would omit the words "generation after generation to male issues" from the allowances proposed in the will, in which case the Board might sanction it. (Sae Ex. 32). This decision was communicated to him on the 3rJ August, 1906, (Sea Ex. 33). 20. On the 21st November, 1905, Shankar Bakhsh instead of removing the defects raised submitted another draft will in favour of Christian missionaries. The Board refused to give its consent stating that dispositions of property of such an extensive scale in favour of missionary bodies must cause pecuniary embarrassment to the property (Ex 37). The decision was communicated to Shankar Bakhsh on the 29th January, 1907 (Ex. 38). Shankar Bakhsh dieJ without making any other will, in 1922. 21. The Board refused to give its consent stating that dispositions of property of such an extensive scale in favour of missionary bodies must cause pecuniary embarrassment to the property (Ex 37). The decision was communicated to Shankar Bakhsh on the 29th January, 1907 (Ex. 38). Shankar Bakhsh dieJ without making any other will, in 1922. 21. The case of the Plaintiffs as laid in the plaint was that Shankar Bakhsh, always stood in need of money and was ready to execute wills in favour of individuals in consideration of money paid or promised, that Ganga Bakhsh took advantage of his pecuniary embarrassment and induced him to execute wills in his favour in consideration of periodical payments of money. Reference is made to the agreement dated the 3rd December, 1901, and the will dated the 30th November, 1901, registered on the sane date, and it is stated that as the will was not sanctioned, the contract fell through. With respect to tie will of the 28th July, 1904, it is stated that Shankar Bakhsh had no intention or desire to make any disposition of any kind in favour of Ganga Bakhsh and that in making it he had no animus tested and was induced to do so wholly in consideration of the payment of Rs. 50 mentioned in the agreement dated the 7th January, 1904, in consideration of which Shankar Bakhsh had to agree to leave the property in his favour after the life interest of his wife. It is further allegad that Ganga Bakhsh never paid the some of Rs. 50 per mensem promised by him in the aforesaid agreement and both Gauga Bakhsh Singh and Shankar Bakhsh treated the arrangement embodied in the will and agreement as having completely fallen through and rescinded either expressly or impliedly. It is claimed in these circumstances that the will dated the 28 July, 1904, or at least the testamentary disposition in favour of Ganga Bakhsh is totally inoperative. It is further alleged that in view of the conduct of Ganga Bakhsh in not carrying out his promise, it would be illegal, inequitable and against public policy to permit the Defendants to take advantage of the testamentary disposition of Shankar Btkhsh as against the lawful "heirs of Siankar Bakhsh who must be deemed to have died intestate. It is further alleged that in view of the conduct of Ganga Bakhsh in not carrying out his promise, it would be illegal, inequitable and against public policy to permit the Defendants to take advantage of the testamentary disposition of Shankar Btkhsh as against the lawful "heirs of Siankar Bakhsh who must be deemed to have died intestate. The request in favour of Ganga Bakhsh's sons was also challenged as bad and repugnant to the interest created in favour of Ganga Bakhsh and as Ganga Bakhsh died in the lifetime of the widow, his sous could not claim anything under the will. 22. Reference is also made in the plaint to the fact that on the 27th October, 1930, the sons of Ganga Bakhsh applied for letters of administration with a copy of the will dated the 28th July, 1904. The application was contested, Mr. Justice Kisch granted the application but his order was set aside by a Bench of the Court. The Privy Council, however, on further appeal restored the order of Mr. Justice Kisch. (Ex. A49, 2 and 3). 23. The main defence was that the decision of their Lordships of the Privy Council dated the 7th May, 1937, holding the will to be valid constituted res judicata between the parties. It was denied that the will and the agreement were parts of the same transaction and it was pleaded that there was no condition precedent in the will that it would be inoperative in the event of a breach of the agreement, i t was also alleged that the will was the outcome of the genuine intention of Shankar Bakhsh to bequeath the property to Ganga Baksh. 24. The learned Civil Judge framed issues and held that the will and the agreement formed one and the same transaction, that Ganga Bakhsh did not fullfil his part of the agreement, that Shankar Bakhsh did not rescind the agreement, that Section 39 of the Indian Contract Act did not apply, that he never revoked the will and that both he and Ganga Bakhsh did not treat the will as inoperative. The learned Judge further held that the decision of their Lordships of the Privy Council did not operate as res judicata. He further held that Ganga Bakhsh was given a vested interest under the will and on his death this interest devolved upon his sons, the present Defendants. The learned Judge further held that the decision of their Lordships of the Privy Council did not operate as res judicata. He further held that Ganga Bakhsh was given a vested interest under the will and on his death this interest devolved upon his sons, the present Defendants. The result was that the suit was dismissed with costs. 25. Mr. Niamatullah on behalf of the Plaintiffs-Appellants has put forward several contentions. These may be summarised as under: (1) That upon the facts proved in the case Shankar Bakbsh bad no animus testandi to make the will in favour of Ganga Bakhsh. (2) The bequest in favour of Ganga Bakhsh was in lieu of confederation under a collateral arrangement Letween him and Shankar Bakhsh and that not having; made good that consideration, Ganga Bakhsh became a trustee subject to all the rights and liabilities arising from such collateral arrangement and he must hold the bequest for the benefit of the heir at law of the testator. (3) That Shankar Bakhsh subsequently repudiated (he arrangement contained in the will because Ganga Bakhsh refused to abide by his premise to pay the confederation and therefore be could not take any beneficial interest but would remain a trustee. This proposition, it was conceded, followed as a corollary from the proposition No. (2). (4) That as the legatee failed to. perform his part of the contract, it was open to the legal representatives of the testator to claim the property by rescinding the agreement resulting in the execution of the will. Shankar Bakhsh rescinded the contract in his lifetime and even if he failed to do so, his heirs are entitled to rescind His same. (5) That the promise to pay Rs. 50 per mensem was a condition precedent to the enforcement of the will and the condition rot having been fulfilled or having become impossible "of performance the bequest could not take effect. 26. Mr. Banerji, on behalf of the Respondents, contests the validity of these contentions and further urges that the questions raised against tie enforcement of the will are barred by the decision of their Lordships of the Privy Council. 27. 26. Mr. Banerji, on behalf of the Respondents, contests the validity of these contentions and further urges that the questions raised against tie enforcement of the will are barred by the decision of their Lordships of the Privy Council. 27. The question whether Shankar Bakhsh bad animus tested in making the will of the 28th July, 904, appears to us to be concluded by the decision of the Probate Court, which was restored by their Lordships of the Privy Council in appeal. In their written statement (Ex. A-56) filed in reply to the application of Ganga Bakhsh's sons for letters of administration various objections were raised including the one as to the absence of animus testandi. Paragraph 21 definitely stated that the will was never intended by Shankar Bakhsh to take effect after his death. He was in the habit or making wills in favour of persons who gave him any pecuniary or other help without intending any such will to operate as an effective disposition of his property. 28. Counsel for Mst. Raj Rani in the course of pleadings (Ex. A-57) after referring to the eccentricities of Shankar Bakhsh and his habit to execute the wills from motive of pecuniary consideration paid or promised definitely asserted that he never intended the will of 1904 to have any force or validity. He merely executed it as he was bribed to do so by a grant of monthly allowance. 29. Issues embodying these contentions were framed and the parties' Counsel stated that no other issues were needed. There was no specific issue about animus testandi. There was no issue that the bequest was conditional and did not take effect as the condition bad not been fulfilled. 30. Under Issue No. 7 the learned trial Judge Kisch J. referred to Allen v. MPherscn 19 E.R. 727, Meluish v. MiWon (1876) 3 Ch. D 27 and Hals-bury's Laws of England, Volume 28, at page 539, paragraph 1067 in support of the observation that all matters relating to the validity of the will come within the province of the Probate Court and must be raised and decided in the Court of Probate.? D 27 and Hals-bury's Laws of England, Volume 28, at page 539, paragraph 1067 in support of the observation that all matters relating to the validity of the will come within the province of the Probate Court and must be raised and decided in the Court of Probate.? It appears from the finding on this issue that the Respondents objected to the questions about the validity of the will being raised in the Probate Court but the Appellants took up the position that these were appropriate questions which fell within the province of the Probate Court and cited English authorities in support of this view. We shall refer to these cases as great reliance was placed upon them by Learned Counsel for the Respondents, 31. Issue No. 3 ran as follows: Was this will not executed by Thakur Shanker Bakhsh Singh of his own free will, and was its execution brought about by undue influence importunities and offers of money and allowances by Thakur Ganga Bakhsh Singh, and is it therefore invalid ? (on objectors) 32. The relevant portion of the finding by the learned Judge on this issue may be given in his own words: Before discussing this issue there is one contention put forward by Learned Counsel for the objectors in his arguments on this issue to which I may briefly refer. It is that Shanker Bakhsh never intended the will of the 28th of July 1904 to be a real transaction operating after his death as an effective disposition of his property, but that it was only a trick to obtain money from Ganga Bakhsh, in other words, that in executing the document he had no animus testandi and it was a will in form only but not in substance. It is true that this plea was taken in the pleadings, written and oral, but no issue was framed on the subject. When the issues were originally framed by another Judge of this Court, Counsel for the objectors did not press for an issue on this plea, but on the contrary explicitly stated that no issues other than those framed were necessary for the determination of the suit. This statement was repeated when the issues were recast by me. The point now raised in argument has clearly nothing to do with the issue of undue influence. This statement was repeated when the issues were recast by me. The point now raised in argument has clearly nothing to do with the issue of undue influence. In fact the pleas of undue influence and of no animus testandi are mutually! destructive. The objectors have gone so far as to put into the mouth of Shankar Bakhsh himself the statement that Ginga Bakhsh got the will executed by deceiving him (D.W. 1 on commission) and now it is sought to be argued that Shankar Bakhsh executed the will as a trick to obtain money from Ginga Bakhsh. The objectors cannot have it both ways. In my opinion the objectors should not be allowed to revive the plea of no animus testandi. That there' is no substance in the plea on the merits will be apparent when issue is discussed. 33. He held that the will was not vitiated by any undue influence or coercion, importunities or the offers of money. He summed up his finding thus: After consideration of all the above facts it seem to me impossible to say that the execution of the will in suit was procured by undue influence exercised by Ganga Bakhsh over the testator. If feharkar Bakhsh was imbuced to execute the will by Garga Bakhsh's premise of a monthly allowances, it is clear that he was led and no driven. He was fully conscious of what he was doing and his act was the offspring of his own volition. It seems to me equally impossible to say that the exercise of undue influence is the only hypothesis to account for the execution of the will in question. Its execution might equally have been the act of Shankar Bakhsh's free agency. Shanker Bakhsh knowing it to be a suitable will and approved of by the Court of Wards authorities may well have desired to make it, though imposing the condition that Ganga Bakhsh should give him a monthly allowance. 34. He also held that the will was executed with the consent of the Court of Wards as required by Section 34 of the Court of Wards Act and that the subsequent withdrawal of the consent by the Court of Wards was ultra vires and did not affect, the validity of the will. 35. In appeal to the Bench of this Court grounds Nos. 5 and 6 again raised the question of animus testandi. 35. In appeal to the Bench of this Court grounds Nos. 5 and 6 again raised the question of animus testandi. The Bench in their judgment (Ex. 3) affirmed the decision of the trial Judge or issue No. 3. The question of animus testandi was disposed of thus: These statements at the best indicate the motive which prompted Shankar Bakhsh Singh to execute a series of wills, but they do not in our opinion indicate the absence of an animus testandi with reference to any one of the wills. It may be pointed out that this motive operated also in the case of the will of the 28th July 1904, as is shown by the agreement, to which, we have already referred, (Ex. A-21)., executed by Ganga Bakhsh Singh on the 7th January 1904. The motive, therefore, may have been relief from pecuniary embarrassment, but the dispositions of the will of the 28th July, 1904 were intended none the less to operate as testamentary dispositions, the indications, in fact all point in this direction. When the will had come to the knowledge of the authorities a year or two later, and had been considered by them, and their views had been communicated to Shankar Bakhsb Singh, he never suggested that he had not intended the will to be what it purported to be. We have already referred to his written statement of the 30th May 1906 (Ex. A 33) in which he said tint the Special Manager had explained everything to him and that he understood that the will was "somewhat illegal", but he never suggested that he had not intended it to be a will at all, or that the document was. as the Counsel for the Appellants would have us believe it to have been, a mere joke on his part. The attack upon the will on this ground, therefore, in our opinion, clearly fails. 36. The decision was, however, reversed on the ground that the consent of the Court of Wards was never given to the will of 1904. In the concluding portion of their judgment the learned Judges took up a point on their own initiative. It was whether Ganga Bakhsh made the payments promised by him in the agreement of January 1904 and if not then what; was the effect of his default. In the concluding portion of their judgment the learned Judges took up a point on their own initiative. It was whether Ganga Bakhsh made the payments promised by him in the agreement of January 1904 and if not then what; was the effect of his default. The learned Judges say: The question is did Ganga Bakhsh Singh make those payments? If he did not, it seems clear that neither be nor his sons would be entitled to claim any benefits under the will. This important point seems entirely to have been lost sight of when the case was before the learned Judge of the trial Court. 37. The learned Judges then referred to an admission by the applicants. Counsel to the effect that if the terms of the agreement were not carried out by Ganga Bakhsh, he and his sons were not entitled to the benefit under the will. The learned Judges then went on to say that the point was of importance, though it was not raised in the Probate Court. It would require to be investigated if the will were held to be otherwise valid and enforceable. 38. Their Lordships of the Privy Council interpreted Section 34 as pointing more appropriately to an antecedent consent being given to a disposition not yet affected and held that the Court of Wards having given its consent and the consent having been acted upon according to its terms it was not open to it to withdraw this consent at a subsequent stage so as to invalidate export facto the competency of the ward. The concluding portion of their Lordship's judgment is as follows: Their Lordships think it proper to add that the only effect of their decision is that letters of administration with a copy of the will annexed must be granted as prayed, but this will not in any way prejudice any proceedings against any of the beneficiaries which may be open to the Respondent or any of them 39. Relying on this passage, the Appellants have contended that their Lordships of the Privy Council left open the question about the invalidity of the will on the ground of absence of animus testandi and the legal results which follow from the breach of the condition to pay the maintenance to the testator. Relying on this passage, the Appellants have contended that their Lordships of the Privy Council left open the question about the invalidity of the will on the ground of absence of animus testandi and the legal results which follow from the breach of the condition to pay the maintenance to the testator. According to the Appellants these questions were foreign to the scope of a Probate Court and were left open for a subsequent adjudication, that Court being only concerned with due execution of the will. On the other hand it has been contended for the Respondents that these objections to the will should be deemed to have been closed by the decision of the Probate Court and all that was meant by the aforesaid passage is that if there were any obligations resting on Ganga Bakhsh, they could be enforced at the instance of any of the beneficiaries. Ganga Bakhsh was under an obligation to pay Rs. 50 to Shankar Bakhsh by virtue of the agreement and the question was whether this obligation was to be wiped out or whether its benefit was to devolve on the heirs of Mst. Raj Rani. Reference is made to another passage in the judgment of the Privy Council where their Lordships after rejection by the Court of Wards of the draft of will in favour of Christian missionaries submitted by Shankar Bakhsh on the 10th January, 1907, observed: He (Shankar Bakhst) did nothing afterwards and appears to have reguded the will, dated the 28th July, 1904. in his valid last will and testa-mont 40. In order to determine the scope of the testamentary proceedings we shall have to refer to certain provisions of the Indian Succession. Act Section 61 of the Act lays down: 61. A will or any part of a will, the making of which has been caused by fraud 0r coercion, or by such importunity as take away the (sic) agency of the test for is void. 41. Section 222 says that the Probate shall be granted only to an executor appointed by the will and the appointment may be expressed or by necessary implication. Section 232 runs as follows: 232. 41. Section 222 says that the Probate shall be granted only to an executor appointed by the will and the appointment may be expressed or by necessary implication. Section 232 runs as follows: 232. When (a) the deceased his made a will, but has not appointed an executor, or (b) the deceased has appointed an executor who is legally incapable or refuses to act, or who has died before the testator or before he "has proved the will, or (c) the executor died after having proved the will, but before he h s administered all the estate of the deceased, an universal or a residuary legatee may be admitted to prove the will, and letters .of administration with the will annexed may be granted to him of the whole estate, or of so much' thereof as may be unadministered 42. Section 276 lays down the particulars required in an application for probate or for letters of administration with the will annexed. The applicant has to state that the will was duly executed and that the Petitioner is the executor named in the will. u/s 298 an application for letters of administration has to mention among other things the right in which the Petitioner claims. "Administrator" and "executor" are defined in Section 2(a) and (c) of the Act. The former means a person appointed by competent authority to administer the estate of a deceased person when there is no executor; and the latter means a person to whom the execution of the last will of a deceased person is, by the testator's appointment, confided. 43. The right in which the Petitioners claimed letters of administration must be taken to have been as residuary legatees within the meaning of Section 232. The Petitioners, are referred to in the letters as legatees of the deceased who had undertaken to administer the estate of; the deceased. 44. As a matter of fact the more appropriate description would be as representatives of the residuary legatee. Ganga Bakhsh had a vested interest under the will and his sons must be deemed to have applied for letters of administration as his representatives. Section 233ilays down: 233. When a residuary legatee who has a beneficial interest survives the testator, but dies before lie estate has been fully administered, his representative has the same right to administration with the will annexed as such residuary legatee. 45. Section 233ilays down: 233. When a residuary legatee who has a beneficial interest survives the testator, but dies before lie estate has been fully administered, his representative has the same right to administration with the will annexed as such residuary legatee. 45. It appears that mutation in favour of Mst. Raj Rani was made on the 30th November, 1922 In 1927 shi executed gifts in favour of her daughters and slaughter's son. Ganga Bakhsh lied a suit for a declaration that the transfers made by Mst. Raj Rani were not valid after her death and that he was the owner of the property in suit. This suit was dismissed on the ground that it was not maintainable as Ganga Bakhsh had not obtained probate or letters of administration as required by Section 213 of the Indian Succession Act. The dismissal was upheld in appeal (See Ex. 48). Ganga Bakhsh died during the pendency of the civil suit. His sons, therefore, applied u/s 233 for letters of administration. They had no loots standi to apply if Ganga Bakhsh had been transformed into a trustee for some reason or another as beneficial interest had gone to Mst. Raj Rani. 46. Section 283 required that what the Court has to do in such case is to take evidence of the due execution of the will and requires the Court to issue citations upon all persons claiming to have any interest in the estate of the deceased to come and see the proceedings. Caveats are filed u/s 284 of the Act.. u/s 289 probate is granted and u/s 290 letters of administration after the will had been proved to be duly executed. 47. Section 273 lays down that these grants shall be conclusive as to the representative title against all debtors of the deceased and all persons holding property which belongs to him, and shall afford full indemnity to all debtors paying their debts etc. etc. In other words, it is a judgment binding upon the whole world. 48. Section 11 of the Code of CPC obviously does not apply as the parties in the two cases were not litigating under the same title and the Probate Court had no jurisdiction to decide the present suit for a declaration. etc. In other words, it is a judgment binding upon the whole world. 48. Section 11 of the Code of CPC obviously does not apply as the parties in the two cases were not litigating under the same title and the Probate Court had no jurisdiction to decide the present suit for a declaration. The judgment of a Probate Court is relevant u/s 41 of the Indian Evidence Act and is conclusive proof as to the legal character conferred upon a person or taken away from a person or declaring any persons to be entitled to any such character. Such is the effect of D'Huart v. Harkness 56 E.R. 660 where it was said that the probate is conclusive to the limited extent that the instrument admitted to probate is the will of the testator but not as to what the Court must hold to be its construction as to the rights of the property disposed of by the will. 49. In Behary Lall Sandyal v. Juggo Mo-hunGossain (1877) 4 Cal. 1 it was held that it is not the province of the Probate Court to go into questions of title with reference to the property of which the will purports to dispose and the grant of probate does not prejudice the right of any person who claims any such property. This view was followed in Ochavaram Nanabhai v. Dolatramja-mietram (1894) 28 Bom 644. 50. In Arunmoyi Dasi v. Mohendra Nath Wadadar (1893) 20 Cal. 888 the Probate Court held on a construction of the will that the applicants were residuary legatees and were entitled to letters of administration against the testator's widow who had opposed the grant. In a suit filed by her, for the construction of her husband's will it was held that the finding on the construction of the will being incidental and for the purpose of determining the question of the representative title of the applicants, could not be regarded as concluding the Plaintiff by res judicata from obtaining a construction of the will in the suit brought by her. 51. In Bhupati Charan Basu Vs. Chandi Charan Basu Mallik, AIR 1935 Cal 154 it was held that it is open to a Probate Court to consider on the construction of the will as to whether the applicant for the probate is entitled to letters of administration being the residuary legatee or universal legatee. 52. 51. In Bhupati Charan Basu Vs. Chandi Charan Basu Mallik, AIR 1935 Cal 154 it was held that it is open to a Probate Court to consider on the construction of the will as to whether the applicant for the probate is entitled to letters of administration being the residuary legatee or universal legatee. 52. In Durgapada Bera Vs. Atul Chandra Bera and Others, AIR 1937 Cal 595 it was remarked that the grant of letters of administration is decisive only of the genuineness of the will and of the right of the person to whom the grant is made to represent the estate, but the decision in a Probate Court cannot operate to help the parties one way or the other in a contested title suit. Arunmoyi Dast's case above referred to was relied upon along with other cases. 53. It was held in Bai Parvatibai Vs. Raghunath Lakshman, AIR 1941 Bom 60 that A testamentary point dealing with the question of issuing a grant of probate is concerned to see whether the will is duly executed as required by law by a testator of sound and disposing state of mind. In case of grant of letters of administration the Court has to see that the person properly entitled to represent the estate of he deceased according to the Succession Act has come to Court, and is given, the grant. It is no part of the duty of the Testamentary Judge to consider the question of title to property. A caveat cannot, therefore, be sustained on the mere ground that the property which is attempted to be disposed of by the deceased by the wilt or in respect of which letters of administration ;lre asked for is joint family estate. The civeator should tile a suit to establish his title to the property, and if adequate grounds are undo out, he can obtain the appointment of a receiver or an injunction against the administrator. 54. Similarly in M.K. Sowbhagiamal v. Komalangi Awmal AIR 192. Mad. 803 it was held that The function of the Court of Probate is to decide whether the will propounded is the last will of the testator and whither the right to represent the estate may be conferred upon the applicant. The Court of Probate does not profess to decide the disputed title to every item of property mentioned in the will. 54. The Court of Probate does not profess to decide the disputed title to every item of property mentioned in the will. 54. The view taken by the Bombay High Court in Ochaviram Nanabhai's case was followed in Nathonv. Nathon (1930) 70 W.N. 373. 55. Strong reliance was placed on behalf of the Respondents on Allen v. M'Pherson. (supra) the facts of this case were that a testator by his will and codicils gave a large bequest which he revoked by a final codicil, providing only a small weekly allowance for him during his life. The will and all the codicils were admitted to probate after contest in the Ecclesiastical Court. Thereupon A. filed a bill in Chancery attacking the final codicil on the ground of undue influence of the residuary legatee and false representations made at her instance respecting A's character. He had not been permitted in the Ecclesiastical Court to take objection to that codicil except such as affected the validity of the whole instrument. He, therefore, prayed that the executors or residuary legatee might be declared trustees for A to the amount of the revoked bequests. It was held by the majority of the House of Lords (Lord Chancellor dissenting) that the Court of Chancery had no jurisdiction in the matter and the proper course would have been an appeal to the Judicial Committee of the Privy Council. Lord Lyndhurs commenced by observing: The case of the Appellant is that the revocation by the 9th codicil oi the bequests in his favour, was produced by the false and fraudulent representation made to the testator respecting his character and conduct; that these were made for the purpose of imposing upon the testator, whose faculties were impaired by age and disease, and who became the victim of this imposition. 56. According to his Lordship if such a case was established in the Ecclesiastical Court, it was sufficient to refuse probate. 56. According to his Lordship if such a case was established in the Ecclesiastical Court, it was sufficient to refuse probate. The argument about trust, whish is raised here, was also raised in that case and was disposed of thus: It was contended that, although this Court cannot set aside the codicil for the fraud and imposition practised upon the testator, it can effect the same object indirectly by declaring the denfendants trustees for the Plaintiff; but if the fraud was cognizable by the Ecclesiastical Court, and would, if established, have been a ground for refusing the probate, to adopt the course suggested would be in effect, as I have already observed, to make the Court of Chancery a Court of appeal from the Ecclesiastical Court a course the more objectionable in the present instance, the case having bee decided after a full hearing by that Court. 57. His Lordship finally concluded the judgment thus: I will conclude by observing generally, that I think it will be found upon examining the cases in which this Court has declared a legatee or executor to be a trustee for other persons, that they have been either questions of construction, or cases in which the party had been named a trustee, or had engaged to tike as such, or in which the Court of Probate could afford no adequate or proper remedy. 58. Lord Brougham: put the matter thus: My noble and learned friend says that the Court of Chancery is not to be considered as the Court that is to be applied to as the Court of appeal from the Court of Probate; but the course here taken amounts to nearly the same thing. In this case eight codicils gave A. B. certain benefits, and the 9th codicil, which is admitted to probate, took away those benefits; the party claiming under first eight codicils, and whose claim is defeated by the 9th (the revoking codicil) being admitted to probate, comes to the Court of Chancery and says. "Make C.D. a trustee for me." This is the way of stating it; but in substance and effect it amounts to one thing, namely, "Revoke the ninth codicil, that codicil which, revoking the first eight codicils, has been admitted to proof. "Make C.D. a trustee for me." This is the way of stating it; but in substance and effect it amounts to one thing, namely, "Revoke the ninth codicil, that codicil which, revoking the first eight codicils, has been admitted to proof. I complain of the ninth codicil as having been obtained by fraud; declare that notwithstanding the ninth codicil, which revoke the first eight, I am entitled to tie benefit under the first eight." That is the prayer of the bill in so many words. 59. Lord Campbell, who concurred with Lord Lyndhurst, delivered himself of the following observations: My noble and learned friend who last addressed your Lordships very properly says, that this is a case in which there has been gross fraud, and that the party who availed himself of this fraud ought not to be allowed to enjoy the fruits of its. I entirely concur with him in saying so; but the question is, by what means shall justice be done ? I say that the proper proceeding would have been an appeal from the decree of the Ecclesiastical Court to the Judicial Committee of the Privy Council, where the probate granted of the ninth codicil would have been reversed. If there had been probate erroneously granted by the Ecclesiastical Court, what is the remedy ? If you say that in this case the party may apply to the Court of Chancery, and may file a bill which shall make the legatee a trustee for the next of kin, or for any other party seeking to set aside that part of the codicil, just see the consequence: in every case, by this contrivance of making the party who would be beneficially interested a trustee for another, you do indirectly that which the law forbids you to do directly. The law says that the Court of Chancery has not jurisdiction over a will of personal property; it cannot bet aside a probate of personal property. Well, then, if you are not allowed to file a bill to set aside the probate, shall you be allowed, in every instance, to file a bill to declare the party in whose favour the probate is granted to be a trustee for the next of kin, or for some other party ? Well, then, if you are not allowed to file a bill to set aside the probate, shall you be allowed, in every instance, to file a bill to declare the party in whose favour the probate is granted to be a trustee for the next of kin, or for some other party ? Wherever you wish to find fault with the probate which the Ecclesiastical Court has granted, you have only to file a bill and to pray that the party in whose favour the probate has been granted may be declared a trustee. Nay, my Lore's, by this process you might review the sentence of the Ecclesiastical Court in refusing probate; because, let me suppose that the Court refuses probate, and grants administration to the next of kin, then, the Court having refused probate and granted administration to the next of kin, the party who claims under the will would file his bill, and would pray that the next of kin may be declared to be trustees for the legatee, and in that manner joy might in every instance have an appeal from the Court of Probate to the Court of Chancery, That has never been the practice of our judicial Court constitution; the appeal from the Ecclesiastical formerly was to the Court of Delegates; it is now to the Judicial Committee of the Privy Council. 60. The next case relied upon by the Respondents is Meluish v. Milton (supra). In this case a testator made a will giving all his property to his wife, and appointing her sole executrix, he proved the will. 61. The heir-at-law and sole next of kin filed a bill to have her declared a trustee of the property for him, on the ground that she had fraudulently concealed from the testator the fact that she was not his lawful wife, as she had a former husband living. The Defendant had taken a preliminary objection that the Court of Chancery had no jurisdiction to entertain the suit. The Vice-Chancellor dismissed the bill. In appeal it was held that the Court of Chancery had no jurisdiction to entertain the case, which was within the exclusive jurisdiction of the Court of Probate. The Defendant had taken a preliminary objection that the Court of Chancery had no jurisdiction to entertain the suit. The Vice-Chancellor dismissed the bill. In appeal it was held that the Court of Chancery had no jurisdiction to entertain the case, which was within the exclusive jurisdiction of the Court of Probate. James L.J. dealt with the matter in the following passage: No doubt, until the decision in Allen v. M'Pherson, a good deal might have been said, and was said, and even decided in favour of the jurisdiction of the Court of Chancery to entertain such a suit and to relieve against such a fraud, and in that very case two eminent Judges of the Court of Chancery maintained that jurisdiction. But their eloquence and learning did not prevail with the House of Lords, which came to the conclusion that in such a case jurisdiction was to be exercised exclusively by the Court of Probate. That case was in many respects the same as this; but there is a distinction between them which is not in favour of the jurisdiction of the Court of Chancery in the present case. In Allen v. M'Pherson the instrument complained was of a codicil by which the testator revoked beneficial interests given by his will, without in any way effecting the legal title of the executor. Here the alleged fraud, if affects anything, effects the whole will, including the title of the executrix. In that case the council was alleged to hive been obtained by fraudulent misrepresentations, and as the case came before the Court on commuter, these allegations were to be taken as true, yet the House of Lords held that the Court of Probate alone had jurisdiction. The doctrine laid down was in substance this: "A will obtained by fraud is not the will of the testator. A probate which is not recalled is conclusive proof in all other Courts that the will is his will. Therefore no other Court can listen to the allegation that the will was obtained by fraud." We are bound by that decision, and his bound to give full effect to it. I cannot see any distinction between that case and the present There the case made was that a codicil had been obtained by fraudulent misrepresentations; here, that the whole will has been so obtained. I cannot see any distinction between that case and the present There the case made was that a codicil had been obtained by fraudulent misrepresentations; here, that the whole will has been so obtained. A distinction was attempted to be made on the ground that the lady had not asked for the will, and that the fraud consisted only in inducing the testator to believe in her status as his wife, but it appears to me that this argument cannot be sustained. Either the fraud was cause cancans of the will, or it was not. If it was, then the will was obtained by fraud, arid the case is within the exclusive jurisdiction of the Court of Proba's; if it was not, then no ground is laid for the interference of any Court. 62. Mellish, L.J. expressed himself thus: At the time when Allen v. M'Pherson was decided much weight might, have been given to tie argument that the Court of Chancery had better means of inquiring into fraud than the Court of Probate; but that is not so now, for the Probate Division has the same means of arriving at the truth as the Chanceiy Division. I think' therefore, that now convenience is in favour of the law as laid down in Allen v. M'Pherson for there is no convenience in allowing parties to keep back a defance which they might urge in the Court of Prubite and then raise it elsewhere, and still less is it desirable to enable them to try the same matter twice over in different Courts. 63. For the Respondents it has been argued that the decision of the Privy Council is res judicata, because the parties are the same and the Probate Court had full jurisdiction to decide the validity of the will on any ground whatsoever. It was open to the Appellants to have taken the point before the Privy Council. They should have opposed the grant of Probate on the grounds now urged, namely, that there was no animus testandi, that the bequest, was conditional which did not vest the estate in the legatee unless the condition was fulfilled. Explanation 4 of Section 11:. of the Lode of CPC is invoked in this connection. u/s 128 of the Indian Succession Act the non-fulfillment of a condition precedent prevents the ; legacy from vesting. Explanation 4 of Section 11:. of the Lode of CPC is invoked in this connection. u/s 128 of the Indian Succession Act the non-fulfillment of a condition precedent prevents the ; legacy from vesting. That was a vital point and would have afforded a complete defance to the application if it had been established. They could have, it is urged, equally put forward the other defence that at the death of bhankar Bakhsh or when the application was made Ganga Bakhsh had become the bare holder of the legal estate and the beneficial interest in reversion vested in Mst. Raj Rani and converted her life estate into an absolute one. The Respondents urge that it is impossible to predicate that while granting letters the Privy Council would have left these questions for a future decision. They had the application of Ganga Bakhsh's sons before them stating the right in which they claimed letters. They were described as beneficiaries in the judgment and so they were. They were representatives of Ganga Bakhsh, who was a residuary legatee with a beneficial interest within the meaning of Section 233 of the Indian Succession Act. 64. The case of Betts v. Doughty (1879) 6 Prob. Div. 26 gives the practice of allowing amendment of pleadings in the ProbateCourt. 65. Provided the facts which raise the equity in favour of another exist, it is a matter for the Court of Prebate to investigate that point. Is there any equity, it is asked in favour of Mst. Raj Rani, which enables her to formulate such a case ? It is suggested that Shankar bakbsh had intended to re-vole the Will and this revocation is to be found in his intention, to be deduced from his subsequent conduct or by tearing up the will. Admittedly the fainter does not constitute a legal revocation aid the latter was definitely negative by the Probate Court, (See the finding on issue No. 4 in Ex. A-49). Mr. Justice Kisch characterised the allegation about destruction of the will as a pure fabrication. The remark of Dr. Deane, reproduced in Cheese v. Lovejoy (1876) 11 Probate Div. 261 is worth quoting here: All the destroying in the world without intention will not levike a will, nor all the intention in the world without destroying: dure must be the two: 66. The remark of Dr. Deane, reproduced in Cheese v. Lovejoy (1876) 11 Probate Div. 261 is worth quoting here: All the destroying in the world without intention will not levike a will, nor all the intention in the world without destroying: dure must be the two: 66. That Shankar Bakhsh had every intention to execute tae will of the 28th July, 1904, cannot admit of the slightest doubt. This intention must be taken to have continued up to his death. However, much he may have intended to nullify that intention, he could not effectively do so except by a legal revocation. If the animus testandi did not exist, the Court of Probate would never have granted the letters. On the other hand, if the subsequent conduct of Shankar bakhsh could not be regarded efficacious as revocation, the same result cannot be achieved by interposing a trust in another Court, because that would be tantamount to revoking the will and the intention expressed by the testator in the will and so held by the Probate Court. It is not suggested that Shankar Bakbsh was prevented by any force or fraud on the part of Ganga Bakhsh from exercising the power of revocation, as was the case in Betts v. Daughty. 67. There is a categorical finding of the Privy Council that after the rejection of the proposed draft of will made in 1906 in favour of the Christian missionaries Shankar Bakhsh did nothing afterwards and appears to have regarded his will dated the 2bth July, 1904, as his valid last will and testament. It is suggested for the Appellants that Shankar Bakhsh did not formally revoke the will because he thought that it was dead as sanction had been refused. Indeed he was not alone in thinking EO. The Court of Wards entertained the same view and had declared it to be null and void. This reasoning appears to us to be speculative. But even if such an inference were permissible, we think it is now displaced by the final pronouncement of the Privy Council and the chapter of controversy must be taken to be closed. Then again, it is said that as Ganga Bakhsh did not carry out his agreement, Shankar Bakhsh ccuid not have possibly allowed the will to stand and his intention to revoke must be natural and inevitable. Then again, it is said that as Ganga Bakhsh did not carry out his agreement, Shankar Bakhsh ccuid not have possibly allowed the will to stand and his intention to revoke must be natural and inevitable. The fact, however, remains that non-payment did not charge Shankar Bakhsh's mind and influence him to revoke, although he was fully aware of the continuous default in payment of Rs. 50. He may have had an intention to revoke but he never effectuated that intention and it remained as it were in the preparatory stage. We accordingly hold that so far as the question of animus testandi goes, it must be deemed to be finally closed by the decision of the Probate Court restored by the Privy Council; but so far as any other question, namely whether the bequest in favour of Ganga Bakhsh could take effect by reason of default in payment or whether the character of Ganga Bakhsh from beneficial legatee was transformed into that of a bare trustee for the widow of Shankar Bakhsh, is concerned, we are not prepared to hold that it constitutes res judicata. These questions relate to the construction of the will and we think they fall outside the jurisdiction of the Probate Court. 68. We may at this stage dispose of the argument about conditional bequest. We are not prepared to entertain the argument that this was a conditional will within the meaning of Section 128 of the Indian Succession Act for there was no condition precedent, the non-fulfillment of which may be taken to prevent the vesting of legacy. It was argued that the payment of guzira was a condition precedent to the enforcement or operation of the bequest and this condition was embodied in the agreement executed six months before the will. Admittedly no such condition is to be found in the will, which is absolute in its terms. Life interest to the wife and the remainder to Ganga Bakhsh are granted at one and the same time. Toe two grants are indivisible. The vesting of the legacy in favour of Ganga Bakhsh is not subject to the condition of the payment of any guzara. If the two are regarded as inextricably mixed up, why did Ganga Bakhsh not take care to incorporate in the agreement that Shankar Bikhsh would not be entitled to revoke the will capriciously. Toe two grants are indivisible. The vesting of the legacy in favour of Ganga Bakhsh is not subject to the condition of the payment of any guzara. If the two are regarded as inextricably mixed up, why did Ganga Bakhsh not take care to incorporate in the agreement that Shankar Bikhsh would not be entitled to revoke the will capriciously. The will shows that Shankar Bakhsh was left absolutely free to act as he pleased. It is also clear from the Will that the obligation to pay the guzara arose immediately on the execution of the will and sending it to the Deputy Com-missioner of Sitapur for sanction of the Board of Revenue and was not summoned while the sanction was awaited. The will is self-contained in all respects and in view of the provisions of Sections 91 and 92 of the Indian Evidence Act it is not possible to import the condition contained in the agreement into the will, assuming that it did contain any condition precedent. We are not aware of any case in which a condition precedent to a legacy can be imported from outside into a will which gives the legacy. In Bomanji Ardeshir Wadia v. Secretary of State for India in Council (1929) 56 I.A. 61 Viscount Danedin observed: Nothing is better settled than that when parties have entered into a formal contract that contract must be construed according to its own terms and not be explained or interpreted by the antecedent commanding which led up to it. This is especially true of a conveyance. There even if there has been a formal antecedent contract, that contract cannot be looked at to control the terms of the conveyance; much less can mere communings, which could oily show what parties meant to do but cannot show what they did. It would be otiose to set forth at length U the authorities, but reference may be made to the victim of Baron Parke in Shore v. Wilson (1942), 9 CI and F. 355, 555), Smith v. Doed. Jersey 821 2 Brod and B. 473); Prison Commissioners v. Clerk of the Pewe for Middlesex, per Sir G Jessel (1882 9 Q.B.B. 606 511); and Lee v. Alexander (1888 8 App. Cas. 853, 868), in which (the case is a Scotch case where the law is the same) Lord Selborne states the proposition as a general one. 69. Jersey 821 2 Brod and B. 473); Prison Commissioners v. Clerk of the Pewe for Middlesex, per Sir G Jessel (1882 9 Q.B.B. 606 511); and Lee v. Alexander (1888 8 App. Cas. 853, 868), in which (the case is a Scotch case where the law is the same) Lord Selborne states the proposition as a general one. 69. Paragraph 9 of the plaint describes the will and agreement of 1901 as one transaction because both of them were registered on the same date, but the same is not stated in respect of the will of 1904 for the obvious reason that the interval between the agreement and the will was over six months. 70. Paragraph 24 of the plaint apparently refers to the failure of the bequest u/s 128 of the Indian Succession Act for the nonfulfillment of the condition. It says that the will is void and inoperative so far as it concerns Ganga Bakhsh because be failed to perform his part of the contract as regards the payment of the monthly allowance and further the payment of the said allowance being a condition precedent and the aforesaid condition not having been fulfilled the disposition became inoperative. We hold, therefore, that the contention based upon conditional bequest has no force. 71. The case in ILR 48 Cal. 1100 is distinguishable because there was a conditional bequest and the condkion had become impossible of performance by an act of the testator. 72. Next it is contended that Ganga Bakhsh having failed to fulfill his obligation to pay the guzara, his original character as a legatee changed into that of a trustee and he must hold the beneficial interest for the testator or his heirs. Reliance is placed on Section 81 of the Indan Trusts Act in support of this contention. Section 81 runs a follows: 81. Where the owner of property transfers or bequeaths it and it cannot be inferred consistently with the attendant circumstances that he intended to dispose of the beneficial interest therein, the transferee or legatee must hold such property for the benefit of the owner or his legal presentative. 73. Section 81 runs a follows: 81. Where the owner of property transfers or bequeaths it and it cannot be inferred consistently with the attendant circumstances that he intended to dispose of the beneficial interest therein, the transferee or legatee must hold such property for the benefit of the owner or his legal presentative. 73. Reference is made to the conduct of Shanker Bakhsh before making the will of 1904 as constituting antecedent circumstances, but this must obviously be excluded from consideration in view of the decision in Bominji Ardeshir Wadia's cass and also because Section 81 refers only to attendant circumstances. . These are said to begin with the submission of the draft will (Ex. 17) by Shankar Bakhsh on the 18th January, 1904, The Special Manager remarked on the Hth Februaiy, 1904, that Shankar Bakhsh was making this will in return for money consideration (vide Ex. 18). on the 11th March, 1904, the Board of Revenue addressed another letter to the Commissioner with reference to paragragraph 4 of the draft will that the net profit of the three villages may not suffice to cover the expenditure provided for special objects of the will and he should be asked to decide whether the expenditure should be reduced or more land be charged with the proposed grants. A medical certificate as to the ward's mental capacity is also asked for (vide Ex. A-17). 74. On the 5th April, 19 4, Mst. Raj Rani wrote to the Board protesting against her husband's executing a will in favour of Ganga Bakhsh. bhe said that her husbaud had been induced to execute the will on the offer of paymeu: of mouy. Ganga Bakhsh, according to her, had promised to pay Rs. 500 at the time of the execution of the will and Rs. 50 per mensem in future. By letter Ex. A-25 the Board of Revenue informed the Commissioner that the Court of Wards will not withhold its consent to a will of Shankar Bakhsh similar to the one submitted if it is altered in the light of certain proposals made by them. On the 8th June, ln04, Mst. Kaj Rani is informmed by the Board that their orders are final (vide Ex, A-26).. On the 28th July, 1904, the will (Ex. 2) is executed. It is registered on the 29th July, 1904. On the 8th June, ln04, Mst. Kaj Rani is informmed by the Board that their orders are final (vide Ex, A-26).. On the 28th July, 1904, the will (Ex. 2) is executed. It is registered on the 29th July, 1904. It is urged that Shankar Bakhsh did not produce the will before the Deputy Commissioner as promised nor did he inform the Court of Wards with a view to obtaining their consent. This conduct of Shanker bakhsh is referred to as showing that he had no intention to obtain coassnt and that he was quite prepared to forego the pecuniary advantage which had accrued to him under the agreement. On the 13th December, 1905, the Special Manager wrote to the Deputy Commissioner that he had been informed that a will had been executed and Registered but he had no copy. (See Ex. A-28). The Deputy Commissioner wrote that ho did not know of any such will and he was under the impression that Shankar Bakhsh had changed his mind. He asked the Special Manager to find it out from Shankar Bakhsh. (See Ex. 19). The special Manager in his letter (Ex. 20) dated the 19th December, 1905, informed the Deputy Commissioner that Ganga bakhsh had given him the original will two days ago. He sent it to him. On the 16th January, 1906, the Deputy Commissioner objected to the will on the ground that certain provisions about the guzara were bad as being opposed to the rule of perpetuity. (See Ex. 21) On the 27th March, 1906, Shankar Bakhsh sent an application (Ex. 22) to ther Board of Revenue admitting that he had executed the will on the 28th July, 1904, but he had done so by a complicated chance. He complained against his wife and Ganga Bakhsh and asked for permission to marry a Christian lady in whose favour he would like to make a fresh will (vide Ex. 22). On the 30th March, 1906, the Board wrote to the Deputy Commissioner asking him to explain to the Board the invalidity of certain provisions and asking him for a revised draft (Ex. 23). Shankar Bakhsh in a note, dated the 13th May, 1906, (Ex. 25) says that the Special Manager had explained everything to bin and he was satisfied that the will executed by him was somewhat illegal. He agreed to submit another draft within 15 days. 23). Shankar Bakhsh in a note, dated the 13th May, 1906, (Ex. 25) says that the Special Manager had explained everything to bin and he was satisfied that the will executed by him was somewhat illegal. He agreed to submit another draft within 15 days. On the 21st May the Deputy Commissioner wrote to the Special Manager to send for fchankar Bakhsh and explain to him the legal position and ask him to submit a fresh draft (Ex. 27). Ex. 29 is the application of Shankar Bakhsh to the Deputy Commissioner, dated the 8th June, 1906 sending the draft of a new will, which is Ex. 30, and praying for sanction. By their letter (Ex. 31) the Board refused sanction on the 13th July, 1906. On the back of this letter the Deputy Commissioner noted that Shankar Bakhsh should be informed that the will executed by him on the 28th July, 1904, was null and void and he could execute a fresh will by Striking out the objectionable provisions. (See Ex. 32). It is significant that Shankar Bakhsh never executed a fresh will in persuance of this order. We are not concerned with Shankar Bakhsh's proposal to execute wills in favour of missionaries later. 75. The facts disclosed by these documents characterised as attendant circumstances which give rise to the inference that it was not the intention of Shankar Bakhsh to dispose of the beneficial interest in favour of Ganga Bakhsh. As a matter of fact we know that the Privy Counsil treated the will of 1904 to have been duly sanctioned by the Court of Wards and the opinions expressed by the Court of Wards authorities to the contrary were based on a misapprehension to the true legal position, but it is urged that Shankar Bakhsh could not possibly have believed in the fact of these categorical opinions that the will of 1904 still existed. The remark of their Lordships of the Privy Council that Shankar Bakhsh did nothing after his draft will in favour of Christian missionaries was rejected and appears to have regarded his will of 1904 as his valid last will and testament, provides a sufficient answer to this argument. 76. The expression "attendant circumstances'' was considered by Wallis and Shan-karan-Nair JJ. in Manuel Louis Kunha v. Jhana Coelho (1908) 31 Mad. 187. 76. The expression "attendant circumstances'' was considered by Wallis and Shan-karan-Nair JJ. in Manuel Louis Kunha v. Jhana Coelho (1908) 31 Mad. 187. A Roman Catholic priest gave his property to A of that Church for religious and charitable purposes, but apprehending that such legacies may not be given effect to be executed a will in question in favour of the Plaintiff with private instructions as to its disposal. These instructions were suppressed by the Plaintiff with a view to misappropriating the estate for himself. The application for probate, was, therefore, dismissed. This case shows that there was a secret trust. Wallis J. in dismissing the application followed the rule of English Law enunciated by Lord Westbury Mc Cormick v. Grogan L.K E.I. Appeal 82 at 97. If an individual on his death bed, or at any other time, is persuaded by his heir-at-law. or his next-of-kin, to abstain from making a will, or if the same individual, having made a will, communicates the disposition to the person on the face of the will benefitted by that disposition, but at the same time says to that individual that he has a purpose to answer which he has not expressed in the will, but which he relies on the disponee to carry into effect and the disponee assents to it either expresily or by any mode of action which the disponee knows must give the testator the impression and belief that he fully assents to the request, then undoubtedly the heir-at-law in the one case and the disponee in the other will be converted into trustees simply on the ground that an individual shill not be benefited by his own personal fraud. 77. In Richard Taylor v. Sri Sri Sri Krishna Chandra Gajapati Naraymi Deo Ma-harajulu Garu (1909) 32 Mad. 443, a testator executed a will in 1392 in favour of B. He died in 1902. Subsequent to his death, a letter written by him bearing the 28th April, 1895, and addressed to the legatee and containing an endorsement that it was to be opened after his death, was found. The letter directed the legatee to convert the property into money and remit the proceeds to his brother. The legatee proved the will and died in 1905 and this letter was not communicated in the lifetime of the testator. The letter directed the legatee to convert the property into money and remit the proceeds to his brother. The legatee proved the will and died in 1905 and this letter was not communicated in the lifetime of the testator. In a suit brought by the next of kin of the testator for the administration of the estate against the heir of the legatee, it was held that the letter not having been communicated in the testator's lifetime did not operate to create a trust in favour of the testator's brother, either under the rule of English Law or u/s 5 of the Indian Trusts Act. Sir Arnold White C.J. held that the letter was not admissible to show that the testator did not intend the legatee to take the interest which the will purported to give him. He construed "the attendant circumstances" to mean the same as surrounding circumstances and held that it is only when the latter can be considered for the purpose of ascertaining the intention of the testator under the English Law that evidence of an attendant circumstances can be given to show that the testator did not intend to dispose of the beneficial interest in the property devised by the will. 78. Under the English Law the letter could not be looked at to show that the legatee under the will was not intended to take the beneficial interest, and the Indian Law is the same. Sankaran Nair J., however, held that the letter is admissible to show that the legatee was only a trustee u/s 81 of the Indian Trusts Act. According to i him "attendance circumstance" means a circumstance that accompanies or follows the transfer or bequest. The letter was intended to accompany or follow the will and may, therefore, be taken into consideration to discover the intention of the testator. 79. There was a Letters Patent appeal to the Full Bench and the decision is reported in 11 I.C. 5. Munro J. agreed with the opinion of the Chief Justice. The majority view of the Madras High Court therefore is that the intention referred to in Section 81 is the intention of the testator at the time of making-his will and not afterwards. It cannot apply to a subsequent change of intention after the making of the will at any time up to the testator's death. The majority view of the Madras High Court therefore is that the intention referred to in Section 81 is the intention of the testator at the time of making-his will and not afterwards. It cannot apply to a subsequent change of intention after the making of the will at any time up to the testator's death. In the present case it is not possible to say that the only inference consistent with the attendant circumstances which can be drawn from the conduct of Shankar Bakhsh is that he did not intend the beneficial interest to go to Ganga Bakhsh. Between the default in payment of the guzara and the death of Shankar Bakhsh many things may have happened which may not have changed his intention. There is no circumstance proved in the present case to show that upoa the default occurring at any particular moment Shankar Bakush told Ganga Bakhsh, ''Since you have defaulted, I hold you as a trustee for ma or my heirs". There is no evidence to show that Shankar Bakhsh agreed not to revoke the will upon any assurance or undertaking given by Ganga Bakhsh that he will hold his property for his heirs. 80. Their Lordships of the Privy Council have expresly laid down in Rani Chhatra Kumtri Devi v. Princz tAoham Bikram Shah (1931) 68 I.A. 279 that the Indian Law does not recognise distinction between legal aud equitable estates; by that law there can be but one owner and where the property is vested in a trustee, the owner must be the trustee. 81. The plaint allegations do not expressly raise a case of trust. Paragraphs 10, 11, 16, 17, 24 and 25 of the plaint are relied upon. We have examined the allegations contained in these paragraphs as also the relief in paragraph 29(a). Paragraph 25 says that as Gaiga Bakhsh did not carry out his promise, it would be illegal, inequitable and against public policy to permit his heirs to take advantage of the testamentary disposition in favour of Ganga Bakhsh as against the lawful heirs of Shankar Bakhsh. Paragraph 25 says that as Gaiga Bakhsh did not carry out his promise, it would be illegal, inequitable and against public policy to permit his heirs to take advantage of the testamentary disposition in favour of Ganga Bakhsh as against the lawful heirs of Shankar Bakhsh. Possibly by an undue straining of tha language of this paragraph one may infer that Mc Cormick's case was in contemplation, but we are not prepared to stress too rigidly the structure of the pleadings in tie case, as no prejudice is likely to be caused to the Respondents by entertaining the plea of trust if it can be held to arise on the facts established in. the case. 82. In McCormick v. Grogan (supra) the facts appear sufficiently from the headnote: C. made a will leaving his whole properly, real and personal, to G, whom he also appointed his executor. When about to die, C. sent for G., and, in a private interview, told him of the will, and on G's asking whether that wis right, said lie would not have it otherwise. C then told G. where the will was to be found, and that with it would be found a letter, This was all that was known to have passed between the parties. The letter named a great many persons to whom C. wished sums of money to be given and annuities to be paid; but it contained several "expressions as to G. carrying into effect the intentions of the 18' testator as he "might think best" and this sentence, "I do not wish you to act strictly on the foregoing instructions, bit leave it entirely to your own giod judgment to do as you think I would, if living, and as the pirties are deserving; and as it is not ny wish that you should say anything about this document, there cannot be any fault found with you by any of the parties, should you not act in strict accordance with it." G. paid money to some of the persons mentioned in the letter, but not to all. 83. Lord Hatherley, L.C, while admitting that the Courts of Equity had jurisdiction to interpose in all cases of fraud, of which he gave illustrations, went on to observe: "But this doctrine evidently requires to be carefuliy restricted within proper limits. 83. Lord Hatherley, L.C, while admitting that the Courts of Equity had jurisdiction to interpose in all cases of fraud, of which he gave illustrations, went on to observe: "But this doctrine evidently requires to be carefuliy restricted within proper limits. It is in itself a doctrine which involves a wide departure from the policy which induced the Legislature to pass the Statute of Frauds, and it is only in clear cases of fraud that this doctrine has been applied cases in which the Court has been persuaded that there has been a fraudulent inducement heid out on the part of the apparent benefiji ary in order to lead the testator to con&de to him the duty Which he so undertook to perform." 84. Lord Westbury, who agreed with the opiub:i of the Lord Cancellor, emohasisad that the jurisdiction which was invoiced was founded altogether oa personal fraud. It is a jurisdiction by which a Court of Equity, proceeding o.i the ground of fraud, converts the party who has committed it into a trustee for the party who is injured by that fraud- Coming to the indicia of fraud in that case his Lordship continued: The first thing which it is incumbent on the party to make oui is, not only that the testator communicated to Mr. Grogan that the letter contained some directions touching the ownership of his property different from what appear on the face of the will, but you must also prove that the testator considered that Mr. Grogin had accepted the obligation, and had made a promise to carry those different dispositions into effect. But, when we examine the evidence, it am aunts merely to this, that Mr. Giogan, like an honest man, at first expressed nis surprise, and even remonstrated with the testator as to the disposition which he had made. Tne testator is not represent-d as telling Mr. Grogan, "That disposition is not the real one. the reat disposition is contained in the letter." But the testator asserts that he will have no other disposition made of his property; and the meaning of that is very clearly shewn (as was observed by my noble and learned friend) when you connect the letter with the will, from which it is plain that the testator meant. the reat disposition is contained in the letter." But the testator asserts that he will have no other disposition made of his property; and the meaning of that is very clearly shewn (as was observed by my noble and learned friend) when you connect the letter with the will, from which it is plain that the testator meant. "I will not have any ot er disposition than that; I place you in my shoes, and give you the absolute dominion over my property which I have myself, and leave you at liberty to carry out my present wishes or not to carry them out, according to your discretion, which shall be absolute and uncontrolled." Even if that letter had been communicated to Mr. Grogan there would have been no trust in favour of any individual. 85. There is no specific allegation of fact in the present case to justify a case of secret trust which may be found in certain cases. Non-payment of money under the agreement is a slender foundation on which the case of trust can rest. Admittedly no trust was created at the date of the execution of the will and if it arose at any subsequent time by reason of the default in payment, it should have been shown that Ganga Bakhsh prevented Shankar Bakhsh from revoking the will upon fraud or some inducement. No secret trust or fraud was alleged in the pleadings, no time was indicated and no particulars were given. The case of Blackwell v. Blackwall L R 1929 A C 318 was cited for the Respondents. We reproduce the head-note as stating the facts: A testator by a codicil to his will gave to five persons 12, 0001. upon trust to invest the same as they should think fit, and apply the yearly income 'for the put poses indicated by me to them," with power to pay over the capital sum of 8,000 1, "to such person or persons indicated by me to them," as they thought fit, and to pay the balance of 4000 1, to the trustees of his will to be held as part of his residuary estate. Detailed parol instructions for the codicil were given by the testator to C. One of the five trustees, and the object of the trust was known in outline to and accepted by all the rest before the execution of the codicil. Detailed parol instructions for the codicil were given by the testator to C. One of the five trustees, and the object of the trust was known in outline to and accepted by all the rest before the execution of the codicil. On the same day, soon after the execution of the codicil, C. wrote out and signed a memorandum of the instructions given to him to the effect (inter alia) that the interest of the 12,000 1, was to be paid to a lady, whose name and full address were given, for the benefit of her and her son, whose full name followed. 86. The widow of the testator and her son brought an action against the trustees and beneficiaries to declare the invalidity of the trust of 12'000 1. It was held that a valid trust had been established by the codicil and the memorandum of even date. The principle was laid down by Lord Buckmaster in the following words: It is, I think, more accurate to say that a testator having been induced to make a gift on trust in his will in reliance on the clear promise by the trustee that such trust will be executed in favour of certain named persons, the trustee is not at liberty to suppress the evidence of the trust and thus destroy the whole object of its creation, in fraud of the beneficiaries. 87. Viscount Sumner delivered himself of the following observation: For the provision of fraud equity fastens on tie conscience of the legatee a trust, a trust, that is, which otherwise would be inoperative; in other words it nwkes bim do what the will in itself has nothing to do with; it lets him take what the will gives him and then mrkes him apply it, as the Court of conscience directs, ard it does so in order to give effect to wishes of the testator, which would not otherwise be tffectual. 88. The Appellants have failed to show thatl Ganga Bakhsh induced Shankar Bakhsh to give him the legacy for certain purposes which he suppressed, thus ignoring the secret trust and claiming title as a beneficiary. 89. Learned Counsel, fcr the Appellants has relied strongly upon Tharp v. Iharp (1916) 1 Ch 0 142 and Jones v. Badley (1868) 8 Chancery App Case 368. 90. The former case being founded on fraud is distinguishable. 89. Learned Counsel, fcr the Appellants has relied strongly upon Tharp v. Iharp (1916) 1 Ch 0 142 and Jones v. Badley (1868) 8 Chancery App Case 368. 90. The former case being founded on fraud is distinguishable. The testator made a will and five codicils devising his real estates to bis wife during widowhood, determinable at her remarriage, and the remainder to the use of A for life, rema nder to the use of the first and every other son A successively in tail male, remainder to the use of such person or persons of a special class as A should by deed or will appoint, remainder in default of such appointment to B for life, remainder to the first and every other son of B successively in tail male, with remainders over. The testator's wife induced the testator to make the sixth codicil by which he revoked the power of appointment given to A by the fifth codicil, On hearing of this A had an interview with the testator's wife at which he gave her his written promise to leave the estates to B on acquiring the power to do so, if she would get the testator to revoke the sixth codicil. The testator's wife communicated this promise to the testator, who thereupon destroyed the sixth codicil. After the testator's death A by deed appointed the estates to himself in fee on failure of his issue male. B. brought an action to enforce the promise. It was held thar the appointment was fraudulent and void, for that A could not exercise the power so as to interfere with B's right of succeeding to the estates. Neville J. in declaring the appointment as invalid and imperative observed: In my opinion, if a man in dealing with a person who is making testamentary dispositions of his property promises that if a certain thing is done by his will, either in his own favour or in favour of some nominee of his, and upon the faith of that promise the testator executes the testamentary disposition, a subsequent action by the person who makes the promise in contradiction of what he promised is a fraud, and I consider that the jurisdiction of the Couit in the cases to which I have been referred is founded on fraud and nothing but fraud. I do not think it is what is sometimes called equitable baud, which is a mental disorder which I have never been able to fathom, but it is in my opinion simply fraud 91. In the present case fraud has neither been alleged nor proved. Another distinguishing feature is that in Tl.aip's case the testator was helpless and could not undo what he had been made to do by the fraud of another. In the present case, however, the testator had the remedy in his own hands and it was. open to him, in the event of default of payment, to have revoked the will. He lived for 18 years but never exercised the right of revocation. The fuli:lment of an undertaking given by a legatee to the testator has in all cases to be made after the death of the testator when the power to revoke the will is taken away from him by a natural event, while in the present case the undertaking to pay the guzara was to be performed in the lifetime of the testator. 92. In Jones v. Badley, a testatrix devised her real estate to A and B, his son, as joint tenants. A bill was riled impeaching the devise to A and B on the ground that the testatrix had made the devise to them on a secret trust for charitable purposes. It was held that the Plaintiffs had failed upon the evidence to make out that case, the onus, the onus being upon them to shew that a trust for charity was communicated to, and expressly or tacitly accepted by the devisees. This case does not help the Appellants at all. If anything, it supports the Respondents inasmuch as it lays down that the secret trust for charity should be communicated to, accepted or acquiesced in by the persons sought to be fastened" with the trust. 93. The case of Stone v. Hoskins 1906 P D 194 may also be noticed in this connection. A husband and wife agreed to make mutual wills in 1900. Under these wills the husband left all his property to his wife while the wife left all her property except 50 1. to her husband. The wife subsequently made certain wills without notice to the husband in which she reduced the benefits granted to him. The wife predeceased the husbaud. Under these wills the husband left all his property to his wife while the wife left all her property except 50 1. to her husband. The wife subsequently made certain wills without notice to the husband in which she reduced the benefits granted to him. The wife predeceased the husbaud. The Plaintiff as an executor claimed probate of the will subsequently executed by the wife. The husband as a Defendant counter-claimed that the Court should pronounce against the fresh will, and alternatively, that the executors of the later will should be directed to hold the property of the wife in trust for the persons benefited in the earlier will. The Court, however, pronounced for the later will remarking: If these two people had made wills which were standing at the death of the firtt to die, ard the survivor had taktn a bei.thi by that death, the View is ptrlectly well founded that the survivor cannot depart frcm the Eriaigenent on his part, because, by the death of the oiher party, the will of ihat patty and the anal gtmtr.t have beccme irrevecabie; but that case is entirely different (rem the preterit, wheie tr.e first person to die has not slccd by the baigain tnd her "mutual" will has in consequence not beccme iirevccable. 94. This case is illustrative of the principle that the law does not intervene to case a situation which can be remedied by a man by his own action. 95. After a careful examination of the cir-cunstsnces of the case we are unable to hold that the arpellacts have succeeded in establishing a case of tiust. 96. Yet another argument was putiforward on the basis of Section 39 of the Indian Contract Act. This section runs as follows: 39. When a party to a contract has refused to perform, or disabled himself frcm performing, his prombe in its entirely, the prermise may put an end to the contract, unlets he has signified by words or conduct, his acquiescence in its continuance. 97. The trial Court did not accept this contention. It took the view that Shankar Bakhsh never put an end to the contract merely because he wrote to the Board of Revenue submitting fresh proposals to make wills. Shankar bakhsh did not terminate the contract by taking the obvious, course of revoking the will. We see no reason to differ from this view. It took the view that Shankar Bakhsh never put an end to the contract merely because he wrote to the Board of Revenue submitting fresh proposals to make wills. Shankar bakhsh did not terminate the contract by taking the obvious, course of revoking the will. We see no reason to differ from this view. Shankar Bakhsh could not free himself from the fetters imposed by the Indiau Succession Act, which lays down a special procedure for revoking wills. Admittedly this was not followed. It is hardly ooen to the Appellants to revoke the will when Shanker Bakhsh died without exercising that right. 98. Section 54 of the Indian Contract Act has obviously no application to the case. 99. We need not consider the other contention based on Section 35 of the Specific Relief Act, which was rejected by the trial Court and was not repeated before us. 100. The result is that this appeal fails and is dismissed with costs.