Judgement

Appeal (No. 61 of 1926) from a decree of the High Court (March 6, 1925) reversing a decree of the District Judge of Patna (January 18, 1923).

The appellant, a minor, applied on January 22, 1922, under s. 50 of the Probate and Administration Act, 1881, to revoke a grant of probate of the will of her father, Alak Prasad ; the grant had been made by the District Court on August 23, 1915.

The petition alleged that no citation, or notice of the application for probate, had been served upon her or upon her mother Thakurani Kuer, since deceased; that Gyan Prakash (who was the chief beneficiary under the will) had been a party to a conspiracy and systematic fraud by which knowledge of the proceedings, and the opportunity to oppose them, had been withheld from the petitioner and from her mother ; and that the will had been fabricated by Gyan Prakash and his father, both since deceased.

Objections to the application were filed by the present respondent, the minor widow of Gyan Prakash.

The facts and the material terms of s. 50 of the Act of 1881 appear from the judgment of the Judicial Committee.

By s. 69 of the Act a citation, in addition to being fixed up in the places therein prescribed, is to be " published or made known in such manner as the judge or delegate issuing the same may direct."

The District Judge who heard the present application revoked the grant; he came to no definite conclusion whether the citation was defective, but he found that the will was a forgery.

On appeal to the High Court the decision was reversed and the application dismissed. The learned judges (Das and Adami JJ.) held that the applicant had not discharged the onus of proving that the notice had not been served upon her mother ; they found that she certainly knew of the grant directly after it was made. They held, further, that the onus was upon the petitioner to show that the will was a forgery, and that she had failed to discharge that onus.

1927. July 5, 7. De Gruyther K.C. and Dube for the appellant. The citation of the appellant and her mother was " defective in substance " within the meaning of s. 50, explanation 1. Even if the notice ever reached her hands, it was not one which, in the circumstances of the case, gave her an opportunity of opposing the grant. She was a young pardanishin woman, entirely under the control of Gyan and his family, with whom she resided; she had no male relative to advise her. If the citation was defective, the petitioner was entitled to have the grant revoked, unless the respondent proved the genuineness of the will. In any case the onus as to the genuineness of the will was upon the respondent. It is an established rule in English law that the onus of establishing the validity of a will is upon those who propound it, even if it has been proved in common form Williams on Executors, 11th ed., p. 236; Robins v. National Trust Co, ([ 1927] A. C. 515, 519.) The practice in India is analogous to that in England, and the English rule has been applied in cases in Calcutta Komollochun Dutt v. Nilruttun Mundle (( 1878) I. L. R. 4 C. 360.) ; In re Dintareni Debi (( 1882) I. L. R. 8 C. 880.) ; Brinda Chowdhrain v. Rodhica Chowdura (( 1883) I. L. R. 11 C. 492.) ; Kali Das Chuckerbutty v. Ishan Chunder Chuckerbutty (( 1904) I. L. R. 31 C. 914 (P. C.)) ; Rebells

v. Rebells. (( 1897) 2 Cal. W. N. 200.) [Reference was made also to ss. 50, 55, 62, 67, 69, 72 and 83 of Act V. of 1881.] The respondent did not discharge the onus of proving that the will was genuine ; on the contrary the inference from the facts proved is that it was a forgery.

Sir George Lowndes K.C. and Wallach for the respondent. The citation was not defective. It was made in the manner ordered by the District Judge, who had a discretion in the matter under s. 69 of the Act. Having regard to the indorsement upon the notice, and the failure to call the person who gave the receipt, the notice was effectually served. The widow acted on the will; she applied for mu