Bombay High Court
Ravji Ranchod Naik vs Vishnu Ranchod Naik on 1 December, 1884
Equivalent citations: (1885)ILR 9BOM241
JUDGMENT Charles Sargent, C.J.
1. In this case the caveator having refused to answer a question put to him by the Court, the District Judge has made an order, under Section 177 of the Code of Civil Procedure, for grant of probate to the petitioner. The proceeding between "the petitioner and the caveator is directed, by Section 83 of Act V of 1881, to be in the form of a suit according to the provisions of the Civil Procedure Code. The above section, therefore, of the Code would be applicable under proper circumstances; but it is plain that the discretion which the section confers on the Court is one which, in such a case, would be required to be exercised with more than usual care, and could never justify the Court in dispensing with proof of the will by the petitioner, as was done here. Nor do we think that the question, which the caveator refused to answer, viz , whether he had signed a former will, was such a material one as to forbid our interference on appeal. We must discharge the order, and send the case back for a fresh order to be made on the application. Costs of this appeal to abide the result.