Maclean, C.J:— This appeal must succeed.
It is the application by the widow of her deceased husband for an order that probate of the alleged Will, which was granted by the Court below to the Respondent be re-called, and that it may be ordered that the said alleged will be proved in the presence of the Petitioner.
Assuming there is no Will, the Appellant is the heiress of her late husband. The Respondent sets up a will of which there were four or five executors: he alone proved the Will, and in the application for probate, the present Appellant was not cited, and apparently knew nothing whatever about it, until after probate was granted. She says, rightly or wrongly,—I do not enter into that—that the will is not a genuine Will, and all she asks is that she should have an opportunity of shewing that it is not a genuine Will. That argument ought to prevail.
Assuming that what she states in her petition is correct,—and her story is supported by evidence on affidavit, though denied by the other side,—she makes out at any rate a primâ facie case for enquiry. In making this observation I do not desire to be understood as expressing any opinion one way or the other as to the genuineness of the will in dispute. She was not cited, and she has substantiated a case for having the probate of the will re-called, and of having an opportunity given her of showing that the will is not a genuine one.
If I may say so with respect, the error into which the learned Judge in the Court below seems to me to have fallen is that, on this application, he has decided the question as to the genuineness of the Will. This was premature.
The application was one asking, in effect, only that the will be proved in the Appellant's presence: and this ought to be done on evidence given in the way usual in probate cases: and not on this application.
On these grounds, the appeal must succeed with costs, and the probate granted must be re-called and kept in the record of this Court, until the case is decided.
Hill, J.:— I am of the same opinion.
Stevens, J.:— I am also of the same opinion.
Babu Atul Chunder Ghose, Attorney for the Appellant.
Babu H.C Ghose, Attorney for the Respondent.
A.N.C
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