SMT BAHURIA MANIKRAJ KUAR Vs. SMTAMARBAS KUAR

JUDGEMENT

(1.) This is an appeal from an order of the learned District Judge at Gaya dismissing an application made under Section 263, Succession Act, for the revocation of the probate of the will of one Rai Bahadur Naurangdeo Narain Singh. The application was by Smt. Bahuria Manikraj Kuer, the surviving widow of the alleged testator, and the facts as set out in her petition of revocation were that Naurangdeo Narain Singh, who was the owner of extensive properties, died on 25 August 1910, leaving two widows, the petitioner and another lady who has since died, and two daughters by a third wife and their descendants; that the petitioner was an illiterate and pardanashin lady entirely in the hands of her stepdaughters husbands, that on 4 October 1938, she was informed that opposite parties 41 to 45 had taken out delivery of possession over certain properties out of her husband's estate in some execution case which caused her to make enquiries from which she ascertained that the husbands of her two step- daughters had caused a will dated July 1910 purporting to be will of the said Rai Bahadur to be forged, naming one Ramanand Patnaik as the sole executor, and that the said will was proved by him in Probate Case No. 15 of 1911. The said will purported to leave the testator's property to the two daughters with small annuities to his widow. She further alleged that the citations which purported to have been issued upon her in Probate case No. 15 of 1911 were not in fact served on her and that she was a minor at that time and she prayed for the revocation of grant of the probate. She made respondents to the application the testator's two daughters and their issue and a large number of other persons, some 69 in all, who were impleaded as the persons who had, by some means or other, come into possession, of different parts of the testator's estate.

(2.) When the matter came before the learned Judge, he heard the parties and looked at the record in the probate case of 1911 and certain documents put forward by the opposite parties, but he did not hear any oral evidence. He seems to have thought that the applicant's story was so improbable that she could not possibly have succeeded in establishing it. But he did not give her any opportunity to do so and dismissed the application without hearing any evidence.

(3.) In these circumstances the applicant has appealed to this Court and, but for the consideration to which I will refer in due course, I would have allowed the appeal. It is a fundamental principle that the plaintiff's case cannot be dismissed without hearing such relevant evidence as the plaintiff desires to adduce, except on the footing that the allegations of fact in the plaintiff's plaint are assumed or admitted to be true. If those allegations were assumed to be true the plaintiff would be clearly entitled to the relief she claimed.