KISHORBHAI REVADAS Vs. RANCHHODIA DHULIA

JUDGEMENT

(1.) This suit was instituted by Kishorbhai Revadas, the executor who had obtained probate of the will of Jijibhai Kasandas, to recover from the first defendant Rs. 144 as rent of certain fields occupied by him as yearly tenant, and possession of those fields.

(2.) The defence of the first defendant was that the deceased Jijibhai had asked him to pay the rent to his nephew Jivabhai, who was the second defendant in the case, and the second defendant Jivabhai contended that the deceased made no will, and that the will proved was fabrication.

(3.) The second defendant prior to the institution of this suit on the 2nd of March 1905 made an application to the District Court for revocation of the probate granted to the plaintiff upon the ground that the will was a forgery, and that he (the second defendant) had been prepared to prove it in the probate proceedings, but at the last moment the plaintiff had bought him off, and that a mutual arrangement had been effected whereby the second defendant agreed not to cross-examine the plaintiff s witnesses and to call evidence, and thus facilitated the grant of probate to the plaintiff who would otherwise have been prosecuted for forgery on the strength of the Mamlatdar s report, and in consideration of the withdrawal of his opposition the plaintiff agreed to restore the property of the deceased to him (the second defendant), or to pay the equivalent in cash directly the probate had been granted, but after the order had been passed the plaintiff declined to carry out his part of the arrangement and thus committed a fraud on the one hand upon the Court, and on the other on him (the 2nd defendant), and that, therefore, the probate should be revoked. The application for revocation was disposed of by the District Court on the ground that the second defendant on his own showing was a party to a fraud upon the Court, that he had not come with clean hands, and was not therefore entitled to the relief sought.