1. This was an application under Section 234 of the Indian Succession Act X of 1865, for revocation of probate of a will granted on the 8th December 1876. The will purports to have been executed by Rojoni Kant Roy Chowdhry, the late husband of the petitioner, Dintarini Dabi. Jogesh Chunder Roy Chowdhry, the brother of Rojoni Kant, obtained probate of the will, and himself died a few years afterwards. He executed a will before his death, and one Doibo Chunder Roy obtained probate of that will. The present petitioner, Dintarini, subsequently applied for a certificate under Act XXVII of 1860, and was opposed by Doibo Roy, who, as executor of Jogesh Chunder Roy, relied upon the grant of probate of Rojoni Kant's will which Jogesh Chunder had obtained. The present petitioner alleges that it was on this occasion that she first became aware of the alleged existence of the will said to have been executed by her late husband; and she thereupon made an application to the District Judge, asking that the grant of probate be revoked on the following grounds: First, that no citation was duly published; secondly, that she was, at the time of her husband's death, a minor, living under the care of Jogesh Chunder, and so had no opportunity of understanding his mala fides and improper acts; and, thirdly, that the will was spurious and forged.
2. The former District Judge, Mr. Brett, having examined two witnesses, made an order that Doibo Roy should prove the will. The case then came before Mr. Peterson, who seems to have been of opinion that the burden of proof in respect of the whole case was upon the petitioner Dintarini.
3. Now, it is contended before us that the District Judge, Mr. Peterson, is in error in laying the burden of proof upon the petitioner, and so calling upon her to prove that the will is a forgery; and an argument has been addressed to us as to the rule which should be observed with respect to the burden of proof in a case of this nature. We do not propose to lay down any general rule, but we shall deal with this case upon its own merits.
4. The Code of Civil Procedure is expressly made applicable to contentious probate cases. By virtue of the provisions of Section 647, the same Code is to be followed, as far as it can be made applicable, in all proceedings in all Courts of civil jurisdiction other than suits and appeals. The Code must, therefore, so far as it can be made applicable, govern non-contentious cases also. Now, according to the Code, if an ex parte decree or order is made in any proceeding pending in Court, and if the person against whom such ex parte decree or order has been made comes into Court and asserts that he had no notice of the proceedings, and was, therefore, unable to appear and answer, the ordinary course is that such defendant is called upon in the first place to satisfy the Court by giving prima facie evidence that he had no notice of the proceedings. The other party is then allowed an opportunity of rebutting this evidence; and if, after hearing both sides, the Court is satisfied that the defendant really had no notice of the proceedings, the case is re-opened, there is a new trial, and at such new trial the burden of proving the issue in the cause is governed by the ordinary rule. It appears to us that this course of procedure ought to be followed in the present case. If the petitioner is able to satisfy the District Judge that she had no notice or knowledge of the previous proceedings, the proper order to make will then be that there be a new trial as to the factum of the will, and upon such new trial, the burden of proving the factum of the will, under the ordinary rule, will lie upon the person who propounded it.
5. We think, therefore, that the proper course in the present case is to set aside the order of the District Judge and to remand the case with the following instructions: The District Judge will first give the petitioner an opportunity of proving that she had no notice or knowledge of the previous proceedings, and if she can give prima facie evidence of this, either by her own testimony or otherwise, the representative of the person who propounded that will, will be allowed to rebut that evidence. The District Judge must bear in mind the petitioner's allegation that she was a minor at the time of the previous proceedings and will consider how far the citation which was issued was sufficient to give her notice of these proceedings. If, upon the whole evidence, he is satisfied that the petitioner really had no notice of the previous proceedings, the case will then follow the course already indicated, and there will be a new trial as to the factum of the will, and on that new trial, the party who now represents the person who propounded the will, will have to prove it in the ordinary way. The costs of this Court and of the Court below will follow the result of the remand.