Odgers, J. — This is an appeal under Sect. 263 of the Succession Act against the order of the District Judge of North Arcot granting probate of a will and codicil of Rev. E. C. Scudder deceased. The will and codicil are respectively Exs. A and B. Probate was opposed by one Rajamanikam on several grounds. The only one argued before us on the evidence was that of undue influence.

This is said to have come from members of the American Arcot Mission. It is sufficient to say that there is not a trace of any such undue influence in the evidence. The fact seems to be that Rajamanikam claims to be the adopted son of the deceased and to have had (either justifiably or not) expectations from him (see the letter written to him by deceased in 1910 or 9 years before his death, Ex. III). Under the will executed in 1918 Rajamanikam got nothing, by the codicil executed just before the death of the testator in 1919, he is allowed to choose certain personal effects of the deceased excluding his insurance policy. The words “and excluding my insurance policy” were interlineated in the codicil and it is this interlineation which is said to have been brought about by undue influence. As already stated there is absolutely nothing to support this in the evidence and I have no hesitation in agreeing with the learned judge on this point.

The learned judge raises but does not decide the point of the locus standi of the caveator Rajamanikam to contest this will at all. True he is a legatee under the codicil, but that clearly gives him no right to either denounce the will or call for proof of it in solemn form: Rahamtullah Sahib v. Rama Rau(1). If it is answered that Rajamanikam claims to be the adopted son of the deceased, it is very doubtful if such an adoption would be recognised by the law of the deceased's domicile which is said to be the United States of America. But for the alleged adoption, he would have no interest in the estate in the event of an intestacy. As to his contention that the law of the United States of America would in such an event make him heir to the property of the deceased, the learned judge says Rajamanikkam has not shown him any authority for this view. In Rahamtullah Sahib v. Rama Rau already cited it was held adopting the law as expounded by Sir C. Cress well in Hingeston v. Tucker(2) that before a person can be permitted to contest a will, the party propounding it has a right to call upon him to show that he has some interest. A bare possibility is sufficient provided it rests on existing facts, but as these pointed that it was held by Sir C. Cresswell in Crispin v. Doglioni that the possibility of filling a character which would give the party concerned an interest is not sufficient, but that there must be a possibility of having an interest in the result of setting aside the will. It appears to me probable that the caveator would fall under the former clause as only possessing the possibility of filling a character which would give him an interest and that therefore the caveator ought to have been held to have no locus standi. The learned District Judge has however admitted the caveat and has disposed of it on the footing that the caveator has no interest. This was argued before us and I do not therefore rest my decision on this ground.

The most serious argument advanced was that taken by the defendant (caveator) in paragraph 6 of his objections. This is to the effect that the provisions of Sect. 105 of the Succession Act have not been complied with and that probate should therefore be refused. That section enacts:—

“No man having a nephew or niece, or any nearer relative, shall have power to bequeath any property to religious or charitable uses, except by a will executed not less than twelve months before his death, and deposited within six months from its execution in some place provided by law for the safe custody of the wills of living persons.”

Paragraph 4 of the will (Ex. A) runs as follows:—

“I give and bequeath to the American Arcot Mission all property, real and personal, of which I die possessed with the exception of the provisions hereinafter made in this will, to be held as a trust-fund by the said Mission for the purposes hereinafter mentioned and to be known as ‘The Minne and Mabel Trust Fund.’”

It may therefore be that this constitutes a bequest to a religious or charitable use though I must not be taken to be so deciding. The question has never yet been raised as to the character of the bequest to the Mission. In the absence of any evidence, I cannot say whether or not the bequest would fall within the mischief of the section. But I will assume for the purposes of this judgment only and under the circumstances to be presently adverted to that it does so fall. Both sides were unwilling to raise the point before us. Mr. Chenchiah for the defendant because he was, I take it, unprepared to satisfy us that this alleged adoption was valid by American Law even if he were entitled to endeavour to do so on the state of the record; the plaintiff as he had had the point decided in his favour. It arises thus if the bequest to the Mission is a religious or charitable use within Sect. 105 of the Succession Act and if the defendant should establish (assuming he is at liberty to do so) that he is entitled to recognition as the adopted son of the deceased, then the deceased may have died leaving a “nearer relative” within the words of the section and he therefore would not have the power to bequeath to the Mission as admittedly the will, though executed more than 12 months from his death (the codicil was not) was not deposited as required by the section. All this as above stated is on the large assumption that the caveator can establish his adoption according to the law and testators domicile and his right to succeed on that title to his property in the case of an intestacy. It may here be noted that succession to immoveable property in British India of a person deceased is regulated by the Succession Act whatever his domicile at the time of his death, but succession to his moveable property is regulated by the law of his domicile. (Sect. 5 of the Succession Act.)

Now assuming all this i.e, that the defendant might hereafter establish locus standi to impeach the disposition of the testator in favour of the American Arcot Mission the question arises can be on that ground be heard to oppose the grant of probate. If he can, it might be that the question of the fact and validity of his alleged adoption would have to form the subject of an inquiry; if he cannot, his objection on the score of Sect. 105 goes and the objection on the ground of undue influence having been overruled the probate must be confirmed. I should have noted that the District Judge was right in disregarding the bequest to the wife in paragraph 6 of the will. A wife is no relative, Administrator General of Madras v. Simpson. His trading is that there being no proof of the existence of a nephew or niece Sect. 105 has no application. It is first to be observed that Sect. 105 says “no man having…………. shall have power to bequeath etc,” it is contained in part XII of the Act which is headed ‘Of Void Bequests.’ It does not say that a will containing such a bequest is for that reason invalid. In Boneha v. Boncha, the question arose as to whether a decree of the Probate Court pronouncing for the validity of the will and finding that deceased was a domiciled Englishman at the date of the will and at his death and decreeing probate to the executors was conclusive in rem as domicile. The opinion of Lord Cramworth in Whicker v. Hunu, as quoted by Lord Herschell, L. C, (quoted at page 551) that a probate is conclusive evidence that instrument provided was testamentary according to the law of the country. But it proves nothing else. Lord Blackburn at page 563 says that as regards personality the Court of Probate is not a Court of distribution. In Barot Parshotam Kalu v. Bai Muli, it was objected that probate should be refused on the ground that the will was invalid as deceased was not competent to dispose by will of property inherited from her husband. The Court held that the fact that deceased was incapable of disposing of some or all of her property by will was no ground for refusing probate. Again in Hormusji Navroji v. Bai Dhanbaiji Jamsetji Dosabhai(3) it was held that probate was only conclusive as to the appointment of executors and the validity and contents of the will. It is not the province of the Court on the application for probate to go into the question of title with reference to the property of which the will purported to dispose of the validity of such disposition. Further in Behary Lall Sandyal v. Juggo Mohun Gossain(4) it is said that the grant of probate only perfects the title of the executor to the property which did belong to the testator and over which he had a disposing power. It appears therefore that the caveator has no right to agitate the matter of Sect. 105, Succession Act in the proceedings for probate. He may hereafter be able to establish his right to call in question the validity of some or all the bequests made by the testator; that as shown by the authorities above is no ground for refusing probate of the will and codicil of the deceased. The District Judge should have refused to entertain this objection. The grant must be confirmed and the Civil Miscellaneous Appeal dismissed with costs.

The question was raised as to the fees allowed to the pleader for plaintiff (appellant) in the lower Court. The amount allowed was Rs. 450 “on Rs, 20, 421” which is something under 2½ per cent. Reference is made to Siddiah Chetty v. Venkataroya Chetty that was a question of fees in a Probate Appeal in the High Court and has no authority with regard to fees in the mofussil which are stated by the learned judges to be there admittedly on the ad valorem scale. I do not understand that it was the intention of the judges in that case to make any alteration in the mofussil practice and I see no reason to do so. The fee awarded will stand. Vakil's fee in this Court Rs. 75.

Ayling, J.—I agree.

K.V.SAppeal dismissed.