Judgement

Appeal by special leave from an order of the High Court (March 23, 1915).

The appellant petitioned the High Court in its original civil jurisdiction under the Probate and Administration Act (V. of 1881) for administration of her deceased husbands estate with his will annexed. The petition was dismissed and the appellant appealed to the appellate jurisdiction of the Court under s. 15 of the Letters Patent of 1865. An order was made on December 18, 1914, that she should give security for costs within two months. She failed to comply with that order, and on March 23, 1915, she petitioned for leave to continue her appeal in forma pauperis. The application was rejected, and by a separate order the appeal was dismissed.

The appellant obtained special leave to appeal to His Majesty in Council from the order refusing to grant her leave to continue the appeal in forma pauperis.

1920. Nov. 9, 10. Sir Erle Richards K.C. and Abdul Majid for the appellant.

Kenworthy Brown and E. B. Raikes for the respondent.

The arguments sufficiently appear from the judgment of the Judicial Committee.

1921. Jan. 20. The judgment of their Lordships was delivered by

LORD SUMNER. The appellant in the present case presented a petition to the High Court at Calcutta on its original civil side in the exercise of its testamentary and intestate jurisdiction under the Probate and Administration Act, 1881, praying for administration to the property of her late husband with a copy of his last will annexed. The grant was opposed by the present respondent, the manager of the deceaseds property, who had applied to the Court of the District Judge of Bhagulpore for a grant of probate under an earlier will and entered a caveat to the widows petition. Under the will which she propounded she would be entitled to a life interest in all the property of the deceased ; under the earlier will her interest was limited to a mere pittance.

The late husband of the appellant was a Brahman by caste and a man of considerable means. He is described as having been a man of progressive ideas but intemperate habits. For the first he was excommunicated by the members of his caste, and owing to the second he died an untimely death at his house at Garganibas, after a bout of conviviality which lasted about a week, leaving, as his widow alleges, the will which she relied upon, bearing date about a fortnight before he died. On account of the excommunication of the deceased from his community serious questions arose as to his cre mation and sradh ceremonies and, during the widows absence at Gaya for this purpose, the respondent, as she alleges, broke open the boxes belonging to the deceased and made away with this will. Fortunately a fair copy of it was forthcoming, and she put it forward, relying upon the evidence of the attesting witnesses, two members of the Bhagulpore Bar.

The petition was heard by Choudhuri J., who, after taking the evidence of the attesting witnesses and of the witnesses for the present respondent (two of whom are said to have been her late husbands boon companions and " inimically disposed to her because she stood in the way of her husbands leading a bad life and giving such pleasure parties "), rejected the evidence of the attesting witnesses and dismissed the petition.

From this decision Srimati Sabitri Thakurain appealed to the High Court in its appellate jurisdiction under s. 15 of the Letters Patent of 1865. It was evident that, on the one hand, her own interest in the matter was very considerable and that, on the other, further litigation might involve the respondent in great expense with small prospect of being recouped if he won. The respondent accordingly petitioned the High Court on its appellate side for an order that the appellant should give security for costs under Order xli., r. 10 (1.), of the Code of Civil Procedure, 1908, and on December 18, 1914, an order was made, that the plaintiff-appellant should within two months from that date furnish sec