JUDGMENT

Yorke, J - On 26th September 1939, my learned brother Bennett J. declined to take into consideration an application for stay of proceedings in this Court See AIR 1940 Oudh 16 under Section 10, Civil P.C., on the ground that Mr. Forbes and Mr. O'Neill not having filed any caveat or affidavit had at that time no right to be heard in the case. Subsequently, on 13th October, Mr. O'Neill alone filed a caveat supported by an affidavit, but did not present any fresh application under Section 10. The 24th November being fixed for the evidence on behalf of the caveator, on 20th November, that is to say only four days ago, Mr. Walford, on behalf of Mr. O'Neill, presented a fresh application under Section 10, Civil P.C. The facts which give rise to the consideration of this application are as follows:

It is common ground between the parties that the late Mrs. Forbes had executed a will on 23rd January 1938. She apparently left Lucknow for Mussoorie on 5th June 1939, but died at Dehra Dun on the morning of 6th June. Mr. Forbes returned to Lucknow not long afterwards, but took no immediate action with a view to obtaining probate of his mother's will of which he and the applicant Mrs. Peterson were co-executors, On 12th July Mrs. Peterson filed the present application for probate as executrix under the will. It is said that prior to her doing so, she had been approached by her brother with a view to their making a joint application in the Calcutta High Court, which was more suited to Mr. Forbes as a forum because he had business in that part of India and is not at the present time ordinarily a resident in India. It is not disputed that on 4th July Mr. O'Neill informed counsel for the petitioner that on or about 22nd June 1939, Mr. Forbes had discovered among the late Mr. Forbes's papers a codicil in the terms of which the petitioner Mrs. Peterson ceased to be an executrix. It is said by learned Counsel on his behalf that Mr. Forbes after that date instructed his solicitors to file an application in the Calcutta High Court for the probate of the will and codicil. On 12th July, as mentioned above, Mrs. Peterson filed her application in this Court and on 26th July, having come to know that her brother was intending to file an application at Calcutta, she entered a caveat in the Calcutta High Court, a course of action said to be permissible under the rules of that Court. It was not till 3rd August that Mr. Forbes filed his application in the Calcutta High Court. On 9th August Mrs. Peterson followed up her caveat by filing an affidavit in support of it in the Calcutta High Court with the consequence that the proceedings in that Court became contentious and the provisions of Section 295, Succession Act (Act 39 of 1925) came into effect. Meanwhile, citations had been served on Mr. Forbes and Mr. O'Neill who is an executor under the terms of the alleged codicil though not of the original will, on 17th August 1939. They did not however, as mentioned above enter a caveat or take any action in this Court.

2. It is important to note that notice to produce the will had been served on Mr. O'Neill and Mr. Forbes on 14th July 1939, and that on 17th July, Mr. Forbes somewhat disingenuously wrote on the back of the summons that the will which he was asked to produce had been sent to Calcutta in connexion with his application for probate "made" in the Calcutta High Court, that application in fact not having been made, a fact of which he could not but be aware. It was not indeed until 28th July that he himself at Calcutta signed the necessary papers so that the application could be made on 3rd of August. Subsequently Mrs. Peterson filed an application in the Calcutta High Court under Section 10, Civil P.C., asking for the proceedings in that Court to be stayed pending the disposal of the proceedings in this Court. That application was dismissed on 30th August. I have nothing before me except a copy of the formal order. It appears that several points w