DR CAPT JATINDRA MOHAN MITRA Vs. MTDAYAL DEVI

JUDGEMENT

(1.) One Shamsher Singh, a Hindu, died at Dehra Dun on 21-1-1946. A petition has been filed in this Court for probate of a will made by the deceased on 14-1- 1944 whereof the petitioner is the executor named therein. A caveat against the grant of probate has been entered by Shrimati Dayali Devi, the widow of the deceased, who, inter alia, contends that the will of which the petitioner seeks to obtain probate is not the last will and testament of the deceased as it has been superseded by a later will made by the deceased on 4-1-1946.

(2.) When the matter came before me on 29-4-1947, Mr. R.C. Ghatak for the petitioner argued that it was not open to the caveator to contend that the will of 1944 was not the last will made by the deceased unless she herself applied for probate of the later will said to have been executed by the deceased on 4-1-1946; and with the consent of both parties the following preliminary issue was accordingly framed: Whether the caveator can set up a later will of the deceased in answer to the present petition without propounding that will.

(3.) I have now heard arguments on this issue, and it appears to be the case that the point -is one not covered by any direct authority.