1. Having already decided the preliminary question of limitation in favour of the appellant, we have since heard the arguments upon the objection preferred by the intervenors. And upon an examination of the record it appears to us quite clear that the learned Judge below has erred in not affording the intervenors an opportunity of being heard upon this case.
2. It was contended that they were creditors, and that persons in their position were not entitled to appear and support the will. A decision of the Privy Council, in which the subject was touched upon, was cited; but we held on Friday last, having regard to the authorities in this Court, not overruled by their Lordships of the Privy Council, that persons who are purchasers of interests under the will; from the executor, have a right to intervene. Two cases, not cited at the Bar, but mentioned by us this morning, are in point, being cases in the Probate Court in England, in which the present Lord PENZANCE and Sir JAMES HANNEN have laid down the same principle; the one is the case of a purchaser, and the other of a mortgagee. The first is Cross v. Cross 12W.R. (Eng.) 694; 3 Sw. & Tr. 292 and the other is Lindsey v. Lindsay 21 W.R., (Eng.) 272. Nor do we think that the case cited in Lindsey v. Lindsey namely Depit and Chapot v. Delerieleuse 2 Sw. & Tr. 131 is an authority against that proposition, as in Lindsey v. Lindsey the case of Cross v. Cross is relied on. We therefore hold it to be clear that the intervenors had a right to support the will in this case, had a right to be heard, had a right to procure the attendance of witnesses, and appear in the full sense of the term in which a party could appear to support a will. We consider it so none the less, under the circumstances such as are described by the learned Judge at page 82 of the Paper-book, which are in these words: 'Gopi Krishna has all along declined to appear and give evidence in support of his own case. Gagan Chandra Dhar, a most important witness, has been kept back, and in every way Gopi Krishna has been very remiss in the way he has had his case conducted.'
3. We think, therefore, that we ought not to decide upon the case as it stands before us; although, perhaps, there may be sufficient material to enable us to form a pretty clear opinion upon it. But we think that under the circumstances the intervenors are entitled to have an opportunity of being heard; and the case must therefore go back to the learned Judge to enable them to obtain that hearing which they claimed and were not allowed. They are entitled to call such witnesses as they desire to adduce.
4. We direct that the case shall go back to the Lower Court for trial, in accordance with the directions contained in this order.
5. We think the costs of this appeal ought to abide the result. We remit, and not remand, the case to the Lower Court. The costs in this appeal to be in the discretion of the Lower Court when it decides the case.