1. This was an application for revocation of probate of an alleged will of the deceased husband of the applicant. The deceased left two sons.
2. The application was made on three grounds: (1) that the applicant was not cited and had no notice of the proceedings; (2) that the will was a forgery; (3) that the executrix to whom the grant had been made was (as we understand by reason of her great age) imbecile.
3. The District Judge refused the application first, he disbelieved that the applicant had had no notice on the ground that the proceedings taken when probate was granted had lasted some time before the Judge, and must have been known to the applicant; that she had by her conduct ratified the proceedings, as she did, after the grant of probate, join the executrix in an application to the Court of Wards to take over charge of the estate. He further intimated his opinion that her interest (and therefore her right to intervene) was doubtful as her deceased husband left two sons.
4. If it appeared that the applicant had had notice, or had been aware of the former proceedings before the grant of probate issued, and had abstained then from coming forward, this would constitute a ground for refusing to allow her to intervene see Ratcliffe v. Barnes 2 S. & T. 486; re Pitamber Girdhar I.L.R. 5 Bom. 638 unless perhaps it were made out that the circumstances leading her to believe that the will was not genuine had not come to her knowledge until after the grant of probate.
5. We do not, however, think that notice or knowledge of the proceedings before the grant was issued is so brought home to her on the face of the proceedings before us, as to justify a refusal of her application on that ground. Nor do we think that the fact of her having, after probate had been granted, joined in the application to the Court of Wards, with the object of getting the estate out of the hands of the executrix (who is, as she alleges, incapable of managing it), is enough to preclude her from being heard on this application, whatever effect that fact may have upon the enquiry into the genuineness of the will.
6. Upon the question of interest it appears to us that the widow, although there are sons living, has yet an interest in the estate such as to entitle her to come in under Section 50 of the Act. She is entitled to maintenance, and, if she pleases, to institute a suit, to have her maintenance made a charge upon the estate of her deceased husband. She is not entitled, no doubt, to claim a partition; but she is entitled, if the heirs of her husband make a partition, to claim a share: there is some authority for holding that this latter right is one of which she may be deprived by express words in her husband's will see Comulmonee v. Joygopaul Mac. Cons. of Hindu Law 90; Morley on Part. 26. The widow having an interest, comes in and alleges matter which is, under Section 50, ground for revocation, and coupling that section with Section 83, must, if her application be granted, put the party propounding the will to proof of it, leaving it to her, when he has made his proof, to negative it, if she can, by such proof as she can give of the matter which she sets up.
7. No doubt her petition is drawn in a wholly erroneous fashion, and she sets up allegations which are only appropriate to a suit against an executrix, for an account, for the appointment of a Receiver and for the like relief. These, of course, must be disregarded; but she does also set up a case under Section 50, and that case, we think, ought to be heard.
8. We may add that, as we understand from the record before us, the proceedings which took place when the grant was made related to the right of the person who objected to the will to be heard, and that his right being negatived, he was not heard in opposition to the grant of probate.
9. We agree in the view expressed by Markby, J., as to the object of Section 234 of the Succession Act, which is the same as Section 50 of the Probate and Administration Act. There is no doubt a discretion vested in the Court in determining whether or not to act under that section; but it must be remembered that probate once granted in common form is final unless it be challenged in proceedings taken under this section. We agree with what is said by Markby, J., in the case before referred to at page 364, 'if there has been no previous contention, and the will has only been proved summarily, or in what is called common form in England, that is without any opposition and merely ex-parte to the satisfaction of the Judge, who can know nothing of the circumstances or the state of the family,' then he ought in all ordinary cases to have the will regularly proved afresh so as to give the objector an opportunity of testing the evidence in support of the will before being called upon to produce his own evidence to impeach it.
10. We, therefore reverse the order of the District Judge, and order that the case be set down and heard before him under Sections 50 and 83 of the Probate and Administration Act. Costs to follow the result.