- (1.) This appeal has been preferred impugning the judgment and decree of the learned Trial Judge, whereby the application for grant of probate has been refused.
(2.) The appellant is the propounder/executrix of a document described to be the last Will and testament of one Mrinalini Basu, since deceased (hereinafter referred to as testatrix). THE respondents before us contested the said suit taking specific plea that there was no Will, and the document which is sought to be probated, is a manufactured one. THE defendants are the sons of the said lady testatrix. A plea has been taken that apart from two sons, there has been a daughter and she was not cited. In the context, as above, the learned Trial Judge framed the following issues : 1) Is the suit maintainable in law ? 2) Is the Will in question is genuine and valid one ? 3) Is the Will duly executed and attested ? 4) Is the plaintiff entitled to grant of probate of the Will as prayed? 5) To what other relief, if any, is the plaintiff entitled ? The first issue was answered by the learned Trial Judge in favour of the defendants and against the propounder holding that the suit is not maintainable as one of the heiress and legal representative, who should have been cited, in case of death intestacy viz. the daughter, was not cited despite having specific knowledge of the propounder. We are of the view that since one of the heiress was not cited, on that ground the suit cannot be held to be not maintainable; rather it is for the Court to take steps not to proceed further without asking the plaintiff to take steps for issuance of citation when in the pleading, followed by evidence, it is noticed that one of the heiress who ought to have been cited, has not been cited. On that ground, the Court cannot dismiss the testamentary suit and ought not to have held that the suit is not maintainable.
(3.) At least there has been a contest by two sons and their caveat as well as affidavit in support of their caveat was accepted. AT the highest, the said daughter ought to have been cited first and had she wished to contest the grant by filing affidavit and place her claims, she ought to have been impleaded as a party defendant. Therefore, we cannot uphold the decision of the learned Trial Judge with regard to maintainability. The suit is maintainable. The suit would have been defective, in spite of the court's order, if the propounder remained inactive by not taking steps for issuance of citation. No such order was passed. Naturally, there was no occasion to take any step in this regard.;