Sir Francis Maclean, K.C.I.E., C.J.

1. This appeal must succeed.

2. It is an application by the widow of her deceased husbandfor an order that probate of the alleged will, which was granted by the Courtbelow to the Respondent, be recalled and that it may be ordered that the saidalleged will be proved in the presence of the Petitioner.

3. The facts are as follows:

4. Assuming there is no will, the Appellant is the heiressof her late husband. The Respondent sets up a will of which there were four orfive executors: he alone proved the will and in the application for probate,the present Appellant was not cited and apparently knew nothing whatever aboutit, until after probate was granted. She says, rightly or wrongly,--I do notenter into that,--that the will is not a genuine will and all she asks is thatshe should have an opportunity of showing that it is not a genuine will. Thatargument ought to prevail.

5. Assuming that what she states in her petition iscorrect,--and her story is supported by evidence on affidavit, though denied bythe other side,--she makes out at any rate a prima facie case for enquiry. Inmaking this observation I do not desire to be understood as expressing anyopinion, one way or the other, as to the genuineness of the will in dispute.She was not cited and she substantiated a case for having the probate of thewill recalled and of having an opportunity given her of showing that the willis not a genuine one.

6. If I may say so, with respect, the error into which thelearned Judge in the Court below seems to me to have fallen is that on thisapplication, he has decided the question as to the genuineness of the will.This was premature.

7. The application was one asking in effect only that thewill be proved in the Applicants presence and this ought to be done, onevidence given, in the way usual in probate cases and not on this application.

8. On these grounds, the appeal must succeed with costs andthe probate granted must be recalled and kept in the record of this Court untilthe case is decided.

C.H. Hill, J.

9. I am of the same opinion.

J.F. Stevens, J.

10. I am also of the same opinion.

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Elokeshi Dassi vs.Hari Prosad Soor (23.01.1903 - CALHC)