Datiram, respondent, in this appeal applied for the grant of probate and in the alternative, for letters of administration in respect of the estate of Batia, deceased, on the basis of a will said to have been executed by the deceased on 4th December 1945. The claim has been resisted on behalf of the sons of the sisters of the deceased. It was pleaded that the will was a forged one and that in any case the testator was not competent to make a will as he had not attained the age of majority. Issue 3 framed in the case was as follows: "Whether the alleged testator was a minor at the time of his death and as such had no testamentary capacity." [2] The learned District Judge, A. V. D. found the issue in favour of the plaintiff-respon­dent. He also found that the testator was of sound mind and executed the will in accordance with the provisions of law when in full possession of senses. On these findings he ordered that letters of administration should issue in favour of the plaintiff. The defendants have appealed. [3] It has been contended on behalf of the appellants, who are aggrieved by the order granting letters of administration to the plain­tiff, that the onus of proving testamentary capa­city was on the plaintiff and the learned District Judge committed an error of law in placing the onus on the relatives of the deceased who were opposing the grant. The issue 3 which has been reproduced above, shows that the learned Dis­trict Judge was of the view that the burden of proving the alleged minority of the testator at the time of the will was on defendant-appellants. From the order also, it is clear that he approached the question from that view point. The contention of the learned counsel that the view of the lear­ned District Judge was erroneous so far as the allocation of onus on this point is concerned has considerable force. Section 59, Succession Act, provides that "every person of sound mind not being a minor may dispose of his property by will." Testamentary capacity, according to this section, requires the existence of a sound mind in a person who is not a minor. Minority just like unsoundness of mind would deprive a person of the capacity to make a will. Section 59, Succession Act, provides that "every person of sound mind not being a minor may dispose of his property by will." Testamentary capacity, according to this section, requires the existence of a sound mind in a person who is not a minor. Minority just like unsoundness of mind would deprive a person of the capacity to make a will. It is worthy of note that in this section both ungoundness of mind and minority have been placed on the same level. Now, it is settled law that the burden of proving -that the will propounded is the that will of a free and capable testator is on the person who propounds it. This view of the law is not questioned by the learned counsel for the respondent. In order to prove capacity in the testator, the propounder, therefore, has to prove not only soundness of mind of the testator but also the fact that before executing the will he had attained the age of majority. The capacity to make a will exists only if a per-son has attained the age of majority and is also possessed of a sound mind. The question came up for consideration before a Division Bench of the Madras High Court reported in Krishnachariar v. Krishnamachariar, 38 Mad. 166: (A. I. B. (2) 1915 Mad. 815). The capacity to make a will exists only if a per-son has attained the age of majority and is also possessed of a sound mind. The question came up for consideration before a Division Bench of the Madras High Court reported in Krishnachariar v. Krishnamachariar, 38 Mad. 166: (A. I. B. (2) 1915 Mad. 815). The learned Chief Justice observed as follows: "Now, if it was necessary for me to express a final opinion in the matter, I should certainly be inclined to hold that, when the defence of minority is raised, the onus is on the party setting up the will to show that the person who made the will was of full age when ha made it." Tyabji, J. the other Judge, also agreed with the view and held that "it was for the applicant in probate proceeding to prove that the testator was competent to make the will which is propounded." He further held that "before a person could be considered to be competent to make a will, it must be shown that he was under no disability from unsoundness of mind, but also (if and in so far as proof of the fact is necessary under the circum­stances of the case) that he is under no disability from minority." Following this case and an earlier case from the Bombay High Court Bhagirthi Bai v. Visliwa-nath, l Bom L. B. 92, a Division Bench of the Lahore High Court also held in Eajindar Singh v. Mt. Bam Jowai, A. I. R. (11) 1924 Lah. 541: (5 Lah. 263) that "the onus o{ proving not only the soundness of mind of the testator but also the fact that the testator was not a minor at the time of the execution of the will rests on the person who propounds the will." The learned counsel for the respondent has not been able to cite any authority against this view and did not seriously contest it. In these circum­stances we have no doubt that the onus of prov­ing that the testator was not a minor on the date the will was made was on the respondent who propounded the will. The learned District Judge was, therefore, wrong in placing the onus on the objectors who are now the appellants. In these circum­stances we have no doubt that the onus of prov­ing that the testator was not a minor on the date the will was made was on the respondent who propounded the will. The learned District Judge was, therefore, wrong in placing the onus on the objectors who are now the appellants. But it is open to the respondent, in these circumstances, to urge that he has been misled by the issue bear­ing on the question as framed by the Court below and that he might have produced more evidence if the burden had been placed originally on him. This would be a reasonable attitude to take and would entitle the plaintiff to an opportunity to prove his case in the light of the view of the law that we take now. [4] We therefore, remand the case under O. 41, B. 25, Civil P. 0. and direct the Court to give the respondent an opportunity of producing such fresh evidence as he may desire to adduce on the question of the age of the deceased. Any evidence that the appellants may wish to produce in rebuttal should also be recor­ded and the case submitted to this Court within three months from the date of receipt of records. Other questions arising in the appeal will be dealt with if necessary when the case comes up for hearing again. Case remanded.