1. This is an appeal from the judgment and decree of the Additional Judge of Dacca, dated the 26th June 1919,
2. On the 13th March 1912 Probate was granted of the Will of Sagar Chandra De, who died on the 1st Aswin 1318 (18th September 1211), leaving him surviving his mother, his childless widow, then a minor, a minor brother and one or two married sisters.
3. The proceedings were not contested; the Wilt was proved in common form and Probate was granted to the mother as executrix.
4. The decree appealed from revokes the Probate and directs the executrix, the appellant before us, to prove the Will in solemn form.
5. The petition for revocation was presented by the widow on the 18th November 1918, more than six years after the grant of Probate. The petition was signed on the widow's behalf by her father, Srish Chandra Dhar. The widow was 16 or 17 years old when her husband died and came of age in 1912 or 1913.
6. The Additional District Judge has found that, after her husband's death, the widow continued to live with her husband's relations in amity and has only recently gone to live with her father, who occupies a house opposite the testator's, in the same street. The suggestion contained in her petition that she was on bad terms with her mother-in-law is unfounded
7. As to the terms of the Will, no doubt the testator left the bulk of his property to his brother, but he bequeathed to his widow a lump sum of Eta. 1,000, and a monthly allowance of Rs. 5 for her maintenance. His estate was valued by the Collector at Rs. 6,595. He and his brother appear to have carried on a joint business as Poddars and to have inherited from their father, in equal moieties, a one-fourth share in holding No. 85 of khas mahal No. 8397 of the Dacca Collectorate, The rent due on account of the share was Rs. 2-1.
8. The Additional District Judge seems to have accepted an account produced by Nagar Chandra to whom, as residuary legatee, the executrix bad made over the estate. The account, in our opinion, shows that Nagar debited himself with the sum of Rs. 1.000 and that he had made payments to the widow (amounting to Rs. 250) besides meeting various small expenses incurred by her, Nagar says that he offered to pay the widow Rs. 1,090 but at her, and her father's request he took charge of the money and paid her from time to time such sums as her occasions required. He states that he executed a hatchitta for the whole sum in her favour and there is evidence in support of that statement, As early as March 1912 he paid the widow a sum of Rs. 43. *
9. Moreover, in 1913 or 1914, in connection with the holding above referred to, Nagar applied for the registration of his name in the Collectorate in plane of that of the testator. A surveyor, who was formerly Khas Tahsildar at Dacca, has been examined. He was ordered to make an enquiry. He enquired about the testator's heirs and sent for Sris Chandra who told him that neither he nor his daughter had any objection to Nagar's name being registered.
10. It is clear, therefore, that Sris Chandra and his daughter knew of the Will shortly after the grant of Probate. We are further satisfied that they were cognizant of the Probate proceedings.
11. The application for Probate was made on the 1st December 1911. General citations were issued and the District Judge farther directed that special citations should be issued on certain parsons, including the widow, and that a guardian ad litem should be
12. appointed for the latter, Srish Chandra was so appointed, and it is not disputed that he was the proper person to act for his daughter. Her present petition describes him as her 'guardian and protestor.' A note in the order sheet, under date the 19th February 1912, states that the notices had been issued and the service proved except in the case of a married sister of the testator. Thai lady subsequently filed a petition consenting to the grant of Probate to the testator's mother and the order granting Probate was accordingly made. In spite of Srish Chandra's denial, there is no doubt that a citation was served on him as the widow's guardian. The service is proved by the peon and by the evidence of two witnesses, one of whom put his name on the citation at the time. Srish Chandra refused to receive the notice and it was fixed on the door of his house.
13. There is, further, the evidence of a Pleader of the Judge's Court that Srish Consulted him with a view to revocation of the Probate. He says Srish came to him four, five or six years ago, his memory not being exact. But it must have been soon after Probate was granted, because he advised Irish to wait till his daughter attained her majority.
14. The petition alleges that the Will was collusively concocted by the testator's mother and his surviving son, Nagar Chandra. In the course of his evidence, Srish Chandra stated that the testator was delirious throughout the whole of the illness, lasting 22 or 23 days, which ended in his death. He was the only witness examined for the widow and his statement was denied by Nagar and another witness on the other side The widow herself was not examined. An application for her examination on commission was made so late that the Judge rejected it. Allegations such as those made by Srish Chandra ought to have been made as soon after the event as possible, when the circumstances were fresh in the memory of those who had access to the testator. As he intended to revoke the Probate, the Additional District Judge very properly did not discuss this question. In the view we take of the case, it is right to say that, in our opinion, any attempt at this distance of time to establish, on such evidence as that of Srish Chandra, that the Will was a forgery would be hopeless,
15. It is important to observe, in this connection, that there is no suggestion that any facts subsequently same to the knowledge of the widow or her father which were not known to them at the time of the Probate proceedings.
16. The ground on which the Additional District Judge has revoked the Probate is that Srish Chandra entered no appearance for the widow. It is true that he refused to accept the citation when it was tendered to him, and if the refusal was not due to pettishness, as it often is, it might be regarded as a refusal to act for his daughter. Bat father and daughter were living close to each other and it is difficult to suppose that they were not in communication during the Probate proceedings. No reason exists why, if they had a case to bring forward against the Will, they should not have brought it forward at the time. The question is, whether the facts disclose 'just cause,' within the meaning of Section 50 of the Probate and Administration Act, for revocation.
17. A citation for Probate is not a summons to appear. The object of citations, whether general or special, is to give those interested an opportunity of coming in, if they so choose, and contesting the application for Probate. Until a caveat is entered the proceedings are not contentious. Section 83 of the Probate and Administration Act shows that up to that stage there is no 'Us' and no suit. Until a contest arises, Order XXXII of the Civil Procedure Code, which is headed, 'Suits by or against Minors and Persons of Unsound Mind,' would seem to have no application to the proceedings. It has, however, been laid down in a series of oases in this Court that where a Will of which Probate is sought affects the interest of a minor, a guardian ad litem should be appointed for the minor Walter Rebells v. Maria Rebells 2 C.W.N. 100.; Shoroshibala Debi v. Anandamoyee Debi 12 C.W.N. 6; Dwijendra Nath v. Golok Nath Sarma 28 Ind. Cas. 574 : 21 C.L.J. 287 : 19 C.W.N. 747, Such a rule may be expedient as a rule of practice. But it does not follow that every rule in Order XXXII is thus made strictly and legally applicable. The question here turns on Rule 4 of Order XXXII, the effect of which is, according to the authorities, that no person can be appointed a guardian ad litem without his express consent. In an unreported case, in some respects similar to the present (R.A. No. 266 of 1917, decided on the 17th Marsh 1917), Sachindra Narain Saha v. Hironmoyee Dassi 59 Ind. Cas. 435 : 24, C.W.N. 538, this Court had occasion to consider the application of the rule to Probate proceedings. It was held by Greaves, J., (Newbould, J. concurring) that the rule did not apply to proceedings which had not arrived at the contentious 'stage. The learned Judge came to that conclusion after referring to relevant provisions in the Probate and Administration Act and to statements of the English practice in this connection to be found in Tristram and Coote's Probate Practice and Mortimer on Probate Practice. We do not understand that the further observations which the learned Judge made were intended to prescribe a strict rule binding in all cases. The question whether the person appointed guardian ad litem consented to act will always be one of importance on the merits. Bat we mush doubt whether it is open to the Courts, or advisable, to lay down a strict and binding rule which would govern every case irrespective of its particular fasts.
18. There are, however, circumstances in the present case which differentiate it from the case which came before Greaves and Newbould, JJ. It is proved that, far several years, the widow has received benefits under the Will, and we are of opinion that the facts in this connection afford a good ground for refusing to re-open the proceedings. Kunja Lal v. Kailash Chandra 7 Ind. Cas 740 : 14 C.W.N. 1063 at p. 1073; Manorama Chowdhurani v. Soshi Mohan Das Mazumdar 28 Ind. Cas. 886 : 19 C.W.N. 366 : 42 C. 480. We have no wish to curtail the privileges of minors but there is a danger of those privileges being abused at the instigation of designing persons with interested motives. Regard must sometimes be had to the convenience, the feelings and the pockets of those who labour from the commencement of the proceedings under the disadvantage of maturity. In the present case, in our opinion, it would be unfair and unjust to the testator's mother to call upon her to prove the Will in solemn form. No just cause is shown for doing so.
19. In the view we take, the appeal must be allowed and the application for revocation dismissed. As we cannot make the applicant's father responsible for the costs, we make no order, The cross-objection has not been pressed and is dismissed. No orders are necessary on the Rule.