The procedure for propounding a subsequent will in a probate suit should be consistent with the provisions of the Succession Act and the Code of Civil Procedure, and should avoid future uncertainties and conflict of decision with regard to one and the same testamentary instrument.

JUDGMENT

B.K. Mukherjea, J. - The petitioner in this rule is the defendant in a probate suit now pending before the District Judge at Rajshahi and the rule is directed against an order of the District Judge dated 15th May 1945, by which he directed the striking off of an issue raised in the probate suit. To appreciate the point in controversy between the parties, it would be necessary to state certain facts.

2. The opposite party in this rule, Sm. Hemlata Roy is the widow of Kumar Hemendra Kumar Roy of Digapatia who died on 11th March 1943, leaving behind him a registered will said to have been executed on 8th July 1939. On 11th June 1943, the opposite party, as the sole executrix under the will, presented an application for grant of probate of the same in the Court of the District Judge at Rajshahi. The application was resisted by Himadri Sekhar Roy, the only son of the testator and the husband of the present petitioner and the proceeding being a contested one was registered as probate Case No. 54 of 1943. Himadri Sekhar Roy died since then and the petitioner who is his wife and sole heiress under the Hindu law has been substituted and brought on the record as defendant in the probate suit in place of the deceased. The petitioner adopted the written statement already filed by her deceased husband and also put forward certain additional objections of her own. Among other points the contention raised on her behalf was that the will propounded was not the last will and testament of the testator and it was in fact superseded by a subsequent will which was executed in the year 1942. On the pleadings of the parties, issues were framed by the Court on 13th September 1944 and issue 2 stands as follows:

Is the will propounded by the petitioner the last will and testament of the testator or was the will revoked by the execution of the second will in 1942?

3. It appears that on 21st November 1944, the propounder administered several interrogatories to the petitioner with the object of eliciting information as regards the time and place of execution of the subsequent will set up by the latter and the names of the scribe and attesting witnesses of the same. In answer to these interrogatories, the petitioner stated that she herself had no personal knowledge of the will but had heard from her husband that it was executed at Rajshahi probably in the first Part of 1942 and that the document was in possession of the propounder or her brother. Her husband had also mentioned to her the names of certain persons who were connected with the execution of the will but she did not know which of them, if any, were the scribe or the attesting witnesses. Thereafter, on 3rd May 1945, the propounder applied to the District Judge for striking out issue 2 framed in the suit as mentioned above on the ground that the caveatrix was not entitled to raise this issue in this proceeding without propounding the subsequent will set up by her and that the subsequent will should be proved after issue of necessary citation as required by law. The learned District Judge by his order dated 15th May 1945 granted this prayer of the propounder and directed the expunging of issue 2 framed in the suit. It is against this judgment that the present rule has been obtained.

4. In making the order complained of the learned District Judge followed a rule of procedure which was indicated and approved of by Rangnekar J. in 53 Bom. 829 Venidas Nemchand v. Bai Champavati ('30) 17 A. I. R. 1930 Bom. 29 : 53 Bom. 829 : 122 I. C. 126. The facts of the Bombay case were similar to those of the present one. There, an application was presented by the plaintiff for probate of the last will and testament of one Vanmali Virji. According to the plaintiff, this last will was executed on 14th April 1925. A caveat was filed in the proceeding by the widow of the testator and she contended inter alia that the last will left by the deceased was one dated 23rd December 1926 and that the will propounded by th