Decided on March 12,1929

BAI KANTA Appellant


- (1.) A preliminary point of evidence arises on this appeal. It is raised in grounds 4 and 5 of the cross-objections of the petitioner Bhailal, respondent No. 1 to this appeal, and It is to the effect that "the lower Court erred in ruling that Messrs. Mavlankar and Baldevprasad were precluded from deposing to the contents of the will." As to that the learned Judge in para. 22 of his judgment says: "There are four witnesses who have read the will after the death of the testator, and who have been examined as to the contents thereof. Of these two Messrs. Mavlankar, Exhibit 50, and Baldevprasad, Exhibit 106, are pleaders. The will came in their hands in the course of their professional employment in connection with the succession certificate and they were held precluded from deposing to the contents."
(2.) So far as the notes of evidence are concerned, we cannot see that there was any argument on this point, or any formal objection taken. None of the counsel appearing before us were counsel in the Court below, but it is alleged by counsel for the petitioner on instructions that his opponent No. 1, the present appellant, objected in the Court below to the pleaders being asked as to the contents of the will, and that the Judge ruled that no such question should be asked. On the other hand counsel for the present appellant says he has no instructions as to whether his client did or did not object in the Court below.
(3.) It will, however, be seen from p. 25 that the Judge disallowed the question as to whether this will was; taken back by Suraj. Now these two pleaders acted for Bai Suraj, the widow of the testator Dahyabhai, for the purpose of getting a succession certificate. The first proceedings were conducted by Mr. Mavlan-kar in the Ahmedabad Court, and eventually the Judge held that the Ahmedabad Court had no jurisdiction, and that the parties must go to Nadiad. Consequently it was Mr. Baldevprasad, who presented the petition in the Nadiad Court asking for a certificate. There the opposition being eventually withdrawn, a succession certificate was granted.;

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