The central legal point established in the judgment is the genuineness and validity of the Will, meeting the legal requirements, and the impact of Near Relatives refraining from contesting the suit.

Jayanandan Singh, J.

Earlier to the filing of the present case, Test Case No.2 of 1986 was filed by the applicant Smt. Sarama Banerjee, which was converted into Test Suit No.1 of 1988. However, the said suit was withdrawn as not pressed vide order dated 7.10.1994 passed by this Court in the said suit. Thereafter, again on 27.4.1995 Test case No.3 of 1995 was filed by Smt. Sarama Banerjee under section 278 of the Indian Succession Act for grant of letter of administration of the Will executed by Late Smt. Purnima Banerjee, which was later on converted into Test Suit.

2. It is stated that a Will was executed by Smt. Purnima Banerjee on 15.8.1981 in respect of the property left by her husband Late Justice Kali Kumar Banerjee, a retired Judge of Patna High Court, in favour of his nephew Prabir Kumar Banerjee. It is stated in the application that Prabir Kumar Banerjee died on 7.3.1984 without taking letter of administration in respect of the Will. Thereafter, widow of Late Prabir Kumar Banerjee filed the present suit for grant of letter of administration in her favour with respect to the property under the Will. It is stated that the Testatrix was permanently residing at Sinha Library Road, Patna, within the jurisdiction of this Court. It is also stated that the Testatrix died issueless.

3. Names of the heirs of deceased Testatrix and also her husband Late Justice Kali Kumar Banerjee are mentioned in paragraphs 10 and 11 of the application as Near Relatives. They are Shyamal Kumar Banerjee, Mrs. Rita Roy, Alok Nath Chatterjee, Namita Gopal, Smt. Lalita Bose, Sachi Prasad Mukherjee and Smt. Anjali Koari. Valuation of the property under the Will has been given in the application as Rs.2,05,000/-, vide Schedule-A. An amount of Rs.56,244.06 has been shown as funeral expenses and other debts, vide Schedule-B.

4. As stated earlier, plaintiff had filed another Test Case which was later on converted into Test Suit No.1 of 1988. It is stated that during the pendency of that Test suit, defendants had filed a Title Suit bearing Title Suit No.299 of 1983 in the court of Sub-Judge-III, Ranchi in respect of the ancestral properties of the husband of the Testatrix in which properties under the Will were not included. In the said title suit efforts were made to have the matter settled amicably. For this purpose, a compromise petition was prepared in which a condition was stipulated that the plaintiff should withdraw the testamentary suit. It is stated that under bonafide belief, the plaintiff withdrew Test Suit No.1 of 1988 from this Court. It is also stated that a partition suit was also filed by the defendants of present suit bearing Partition Suit No.181 of 1994 and the said compromise petition, purported to have been filed in the Title Suit, was filed in the said partition suit.

5. Original Will was written in Bengali and a translation of the same in English has also been filed.

6. General citations were published in English Daily ‘Telegraph’ and Bengali Daily ‘Aaj Kal’. Special Citations were also issued to the Near Relatives. During the pendency of the suit, one of the Near Relative, namely, Anjali Koari was reported to have died and after due notice her legal heirs as mentioned in the substitution petition, namely, A.K. Koari and Achintya Koari, were substituted.

7. Special Citations were also issued to the Near Relatives and they appeared in this case and filed their vakalatnama. Defendant Nos.1 and 2 filed caveat against grant of letter of administration with respect to the estate of Smt. Purnima Banerjee on 18.5.1998, which was accepted by this Court by order dated 17.9.1999. Thereafter, Test case was converted into present Test Suit.

8. This Court, by order dated 7.11.2003, framed following issues for consideration in this suit in respect of grant of letter of administration:

(1) Whether the present Test Suit No.1/2000 is maintainable in view of Rule 3(a) of Order 23 of the Code of Civil Procedure because of unconditional withdra