Beverley and Ameer Ali, JJ.
1. In this case a preliminary objection has been taken that no appeal will lie against the order of the learned District Judge, and we are of opinion that this objection is well founded. It is contended that under Section 86 of the Probate and Administration Act the order is appealable. That section runs as follows: 'Every order made by a District Judge or district delegate by virtue of the powers hereby conferred upon him shall be subject to appeal to the High Court under the rules contained in the Code of Civil Procedure applicable to appeals. 'Reading that section with Section 53* of the same Act we are of opinion that it only allows an appeal to this Court in cases in which an appeal is allowable under the Code of Civil Procedure. Now, this is an appeal against an order refusing to make the appellant a party defendant in the application for probate; in other words, to add her as a defendant in the case under the provisions of Section 32 of the Code. It has been ruled, however, by this Court in the case of Abirunnissa Khatoon v. Komurunnissa Khatoon I.L.R. 13 Cal. 100 and by the Allahabad High Court in Karman Bibi v. Misri Lal I.L.R. 2 All. 904 that under Section 588, Clause 2 of the Code, an appeal will not lie against an order refusing to add the name of any person as plaintiff or defendant. That being so, we are of opinion that we ought to follow the decisions referred to, and as at present advised we must hold that no appeal will lie. We intimated this opinion at the rising of the Court yesterday, and to-day the learned pleader for the appellant has put in an application under Section 622 of the Code asking us to interfere on the ground that the District Judge in refusing to hear Khettramoni Dasi has acted illegally and with material irregularity. We have heard the other side in the matter of this application, and we are of opinion that under the circumstances this is a case in which we ought to interfere. The learned pleader for the opposite party has relied upon the case of Rabbaba Khanum v. Noorjehan Begum I.L.R. 13 Cal. 90, but we are of opinion that the circumstances of that case were very different from those in the case before us. In the present case it appears that the widow of the deceased, Nistarini Dasi, in the first instance opposed the grant of the probate, but he subsequently applied to withdraw her objections, and after that the appellant and petitioner before us, Khettramoni Dasi, who is the daughter of the deceased, applied that she might be made a party in order to contest the grant of probate. On the 8th of March 1893 the District Judge made this order: (reads order ante p. 540). The same day that this order was made the case was heard, and it was heard as an unopposed case.
2. The District Judge states in his decree that 'the objection on behalf of the female defendant' (that is, of the widow Nistarini Dasi) ''having been withdrawn, the case was heard without being contested.' It appears to us that when the Judge found, on proceeding with the trial, that the widow Nistarini was not contesting the case, there was ground for supposing that there was collusion between her and the petitioner, and that he ought to have allowed the applicant Khettramoni to take her place, so to say, and to contest the grant of the probate. It has been contended that Khettraraoni has no such interest in the estate of the deceased as would entitle her to be heard in these proceedings, but we think that is not the case. It is clear that if the deceased died intestate Khettramoni would have an interest in the property upon the death of the widow; and there being ground for supposing that the widow was colluding with the applicant for probate, we think that Khettramoni had a right to be heard in these proceedings, and that the case should have been treated and tried as a contentious case. We accordingly set. aside the decision of the District Judge and send the case back to him in order that Khettramoni, the applicant before us, may have an opportunity of contesting the case, and that the will may be proved in solemn form. We make no order as to costs.
* District Judges powers as to grant of probate and administration.
[Section 53: The District Judge shall have the like powers and authority in relation to the granting of probate and letters of administration, and all matters connected therewith, as are by law vested in him in relation to any civil suit or proceeding depending in his Court.]