1. This is an appeal from the judgment and decree of theAdditional Judge of Dacca, dated the 26th June 1919,

2. On the 13th March 1912 Probate was granted of the Will ofSagar Chandra De, who died on the 1st Aswin 1318 (18th September 1211), leavinghim surviving his mother, his childless widow, then a minor, a minor brotherand one or two married sisters.

3. The proceedings were not contested; the Wilt was provedin common form and Probate was granted to the mother as executrix.

4. The decree appealed from revokes the Probate and directsthe executrix, the appellant before us, to prove the Will in solemn form.

5. The petition for revocation was presented by the widow onthe 18th November 1918, more than six years after the grant of Probate. Thepetition was signed on the widows behalf by her father, Srish Chandra Dhar.The widow was 16 or 17 years old when her husband died and came of age in 1912or 1913.

6. The Additional District Judge has found that, after herhusbands death, the widow continued to live with her husbands relations inamity and has only recently gone to live with her father, who occupies a houseopposite the testators, in the same street. The suggestion contained in her petitionthat she was on bad terms with her mother-in-law is unfounded

7. As to the terms of the Will, no doubt the testator leftthe bulk of his property to his brother, but he bequeathed to his widow a lumpsum of Eta. 1,000, and a monthly allowance of Rs. 5 for her maintenance. Hisestate was valued by the Collector at Rs. 6,595. He and his brother appear tohave carried on a joint business as Poddars and to have inherited from theirfather, in equal moieties, a one-fourth share in holding No. 85 of khas mahalNo. 8397 of the Dacca Collectorate, The rent due on account of the share wasRs. 2-1.

8. The Additional District Judge seems to have accepted anaccount produced by Nagar Chandra to whom, as residuary legatee, the executrixhad made over the estate. The account, in our opinion, shows that Nagar debitedhimself 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 herfathers request he took charge of the money and paid her from time to timesuch sums as her occasions required. He states that he executed a hatchitta forthe 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 holdingabove referred to, Nagar applied for the registration of his name in theCollectorate in plane of that of the testator. A surveyor, who was formerlyKhas Tahsildar at Dacca, has been examined. He was ordered to make an enquiry.He enquired about the testators heirs and sent for Sris Chandra who told himthat neither he nor his daughter had any objection to Nagars name being registered.

10. It is clear, therefore, that Sris Chandra and hisdaughter knew of the Will shortly after the grant of Probate. We are furthersatisfied that they were cognizant of the Probate proceedings.

11. The application for Probate was made on the 1st December1911. General citations were issued and the District Judge farther directedthat special citations should be issued on certain parsons, including thewidow, and that a guardian ad litem should be

12. appointed for the latter, Srish Chandra was soappointed, and it is not disputed that he was the proper person to act for hisdaughter. Her present petition describes him as her "guardian andprotestor." 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 thecase of a married sister of the testator. Thai lady subsequently filed apetition consenting to the grant of Probate to the testators mother and theorder granting Probate was accordingly made. In spite of Srish Chandrasdenial, there is no doubt that a citation was served on him as the widowsguardian. The service is proved by the peon and by the evidence of twowitnesses, one of whom put his name on the citation at the time. Srish Chandrarefused to receive the notice and it was fixed on the door of his house.

13. There is, further, the evidence of a Pleader of theJudges Court that Srish Consulted him with a view to revocation of theProbate. He says Srish came to him four, five or six years ago, his memory notbeing exact. But it must have been soon after Probate was granted, because headvised Irish to wait till his daughter attained her majority.

14. The petition alleges that the Will was collusivelyconcocted by the testators mother and his surviving son, Nagar Chandra. In thecourse of his evidence, Srish Chandra stated that the testator was deliriousthroughout the whole of the illness, lasting 22 or 23 days, which ended in hisdeath. He was the only witness examined for the widow and his statement wasdenied by Nagar and another witness on the other side The widow herself was notexamined. An application for her examination on commission was made so latethat the Judge rejected it. Allegations such as those made by Srish Chandraought to have been made as soon after the event as possible, when thecircumstances were fresh in the memory of those who had access to the testator.As he intended to revoke the Probate, the Additional District Judge veryproperly did not discuss this question. In the view we take of the case, it isright to say that, in our opinion, any attempt at this distance of time toestablish, on such evidence as that of Srish Chandra, that the Will was aforgery would be hopeless,

15. It is important to observe, in this connection, thatthere is no suggestion that any facts subsequently same to the knowledge of thewidow or her father which were not known to them at the time of the Probateproceedings.

16. The ground on which the Additional District Judge hasrevoked 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 beregarded as a refusal to act for his daughter. But father and daughter wereliving close to each other and it is difficult to suppose that they were not incommunication during the Probate proceedings. No reason exists why, if they hada case to bring forward against the Will, they should not have brought itforward at the time. The question is, whether the facts disclose "justcause," within the meaning of Section 50 of the Probate and AdministrationAct, for revocation.

17. A citation for Probate is not a summons to appear. Theobject of citations, whether general or special, is to give those interested anopportunity of coming in, if they so choose, and contesting the application forProbate. Until a caveat is entered the proceedings are not contentious. Section83 of the Probate and Administration Act shows that up to that stage there isno "Us" and no suit. Until a contest arises, Order XXXII of the CivilProcedure Code, which is headed, "Suits by or against Minors and Personsof Unsound Mind," would seem to have no application to the proceedings. Ithas, however, been laid down in a series of cases in this Court that where aWill of which Probate is sought affects the interest of a minor, a guardian adlitem 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 maybe expedient as a rule of practice. But it does not follow that every rule inOrder XXXII is thus made strictly and legally applicable. The question hereturns on Rule 4 of Order XXXII, the effect of which is, according to theauthorities, that no person can be appointed a guardian ad litem without hisexpress 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 Sahav. Hironmoyee Dassi 59 Ind. Cas. 435 [LQ/CalHC/1919/150] : 24 C.W.N. 538, this Court had occasionto consider the application of the rule to Probate proceedings. It was held byGreaves, J., (Newbould, J. concurring) that the rule did not apply toproceedings which had not arrived at the contentious stage. The learned Judgecame to that conclusion after referring to relevant provisions in the Probateand Administration Act and to statements of the English practice in thisconnection to be found in Tristram and Cootes Probate Practice and Mortimer onProbate Practice. We do not understand that the further observations which thelearned Judge made were intended to prescribe a strict rule binding in allcases. The question whether the person appointed guardian ad litem consented toact will always be one of importance on the merits. But we must doubt whetherit is open to the Courts, or advisable, to lay down a strict and binding rulewhich would govern every case irrespective of its particular fasts.

18. There are, however, circumstances in the present casewhich 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 theWill, and we are of opinion that the facts in this connection afford a goodground for refusing to re-open the proceedings. Kunja Lal v. Kailash Chandra 7Ind. Cas 740 : 14 C.W.N. 1063; Manorama Chowdhurani v. Soshi Mohan Das Mazumdar28 Ind. Cas. 886 [LQ/AllHC/1915/52] : 19 C.W.N. 366 : 42 C. 480. We have no wish to curtail theprivileges of minors but there is a danger of those privileges being abused atthe instigation of designing persons with interested motives. Regard mustsometimes be had to the convenience, the feelings and the pockets of those wholabour from the commencement of the proceedings under the disadvantage ofmaturity. In the present case, in our opinion, it would be unfair and unjust tothe testators mother to call upon her to prove the Will in solemn form. Nojust cause is shown for doing so.

19. In the view we take, the appeal must be allowed and theapplication for revocation dismissed. As we cannot make the applicants fatherresponsible for the costs, we make no order, The cross-objection has not beenpressed and is dismissed. No orders are necessary on the Rule.

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Radhashyam Dasya and Ors. vs. Ranga Sundari Dasya (07.01.1920- CALHC)