JUDGMENT D.N. Mitter, J. - This is an appeal from an order of the District Judge of 24-Parganas, dated the 30th November, 1935, by which he refused to grant probate of the Will of a gentleman of the name of Krishna Chandra Dutt in circumstances which will be presently set forth. It appears that an application was made by two of the nephews of Krishna Chandra, namely Gouri Sankar and Tara Sankar, who are executors named in the Will of Babu Krishna Chandra Dutt for probate of the Will, alleging that Krishna Chandra who died on the 5th June, 1935, at No. 59, Haris Mukherji's Road, executed on the 16rh April, 1935, his last Will, that by the said Will Krishna Chandra appointed his two nephews and his wile Sm. Hari Bhabini Dutta as executors and executrix for the purpose of carrying out the directions contained in the said Will. It stated that as Sm. Hari Bhabini, the widow, was not willing to join the nephews, in applying for probate, the nephews have made the application. In these circumstances they asked for probate of the last Will and testament of Krishna Chandra. It may be mentioned here that an application was made by the widow Hari Bhabini for letters of administration on the footing that there was no Will of the deceased but subsequently she also joined in this application for probate. The order of the District Judge made on the 23rd September, 1935, runs as follows:- Sm. Hari Bhabini Dutta, the widow of the testator, appears and she and the applicants file a joint petition praying for the reasons stated therein that the applicants may be permitted to prove the will in common form and orders may be passed for registration of the petition of compromise mentioned therein. 2. When filing the application of the 23rd September, they annexed along with it the petition of compromise which is printed at page 23 of the paper-book On the 7th November, 1935, both parties filed a registered petition of compromise on non-judicial stamp of Rs. 178, The applicants put in a petition, praying for time to prove the Will, Advocates were heard and time was allowed till the 28th November, 1935. Witnesses were examined on that date and the case was taken up ex parte and the Will was marked as Ext. 1. 178, The applicants put in a petition, praying for time to prove the Will, Advocates were heard and time was allowed till the 28th November, 1935. Witnesses were examined on that date and the case was taken up ex parte and the Will was marked as Ext. 1. Orders however on the petition of compromise were reserved pending the translation of a part of the compromise deed. On the 30th November, 1935, the learned District Judge passed the following order which is the subject matter of appeal in this case. Applicants are deceased testator's nephews. Objectrix is his widow. Applicants put forward a Will the widow challenged it. Both parties now claim the Court's sanction to their compromise. Under the Will the widow was to get right of residence and Rs. 20/- a month as maintenance. Under the compromise she is to get Rs 150/- a month. The widow has blackmailed the applicants and succeeded to the tune of Rs 130/- a month. The applicants bought off the opposition Bath sides have come to Court to sanction a compromise violating the testator's wishes with unclean hands. The application is refused. 3. The applicants for probate considered that this order was really an order refusing to sanction the compromise and they moved the learned District Judge for re-consideration of the order on the 23rd December, 1935. The learned Judge refused to revise the order. Again another application was filed on the 11th February, 1936, in which it was stated that the learned Judge should not have dismissed the application for probate. This application again was rejected. An appeal was accordingly taken to this Court on the 30th August against the order of the 30th November. 4. It has been contended before us by the learned Advocate who appears for the nephews Gouri Sankar and Tara Sankar that the learned Judge was not justified in dismissing the application for probate as evidence had been Jed to prove the due execution and attestation of the Will and it is said that the proper order for the Judge to make was to grant probate on such evidence as was given after he was satisfied that the Will was duly executed and attested and to record the compromise which had been filed. The widow who appears through Mr. The widow who appears through Mr. Chatterji also assents to that position, namely that the proper course for the District Judge to take was to come to a finding as to the due execution and attestation of the Will, to grant probate and to record the compromise after granting probate in respect of the Will. We are of opinion that this contention of the Appellant is well-founded and must be accepted. There is no question and all the authorities are agreed with regard to this that unless a Will is proved in some form, no grant of probate can be made merely on the consent of parties. It has been held that an agreement or compromise as regards the genuineness and due execution of the Will, if its effect is to exclude evidence in proof of the Will, is not lawful within the meaning of sec. 375 of the Code of Civil Procedure, 1882, and no probate can be granted merely because the caveator consents to the grant. Such an agreement is against public policy as the only issue in a probate proceeding relates to the genuineness and due execution of the Will. [See the cases of Ghellabhai Atmaram v. Nandaubai I. L. R. 21 Bom. 335 (1986), Monmohini Guha v. Banga Chandra Das I. L. R. 31 Cal. 357 (1903).]. In the case of Kamal Kumari Devi v. Narendra Nath Mukherji 9 C. L. J. 19 (1907). Mr. Justice Woodroffe in the judgment delivered by him refers to the practice in such cases on the Original Side of this Court. The learned Judge states thus at page 29 of the report:- It is of course obvious that there can be no such thing as an amended probate. Either the Will of the testator is proved or it is not. If proved what is proved are the provisions of the Will. Farther there must be proof of the Will before probate is granted. The mere consent of parties without evidence in support of the Will and which satisfies the Court of its due execution is insufficient. In the present case no such question arises, for admitted evidence was given before the Probate Court which satisfied it that both the Will and codicil were duly executed. Owing to an erroneous view of the law the parties expressed their intention in an irregular form. In the present case no such question arises, for admitted evidence was given before the Probate Court which satisfied it that both the Will and codicil were duly executed. Owing to an erroneous view of the law the parties expressed their intention in an irregular form. There could be no amended probate as stated in the ekrarnamah but when a testamentary instrument is propounded and a caveat against the grant is entered, it is common practice that opposition to the grant should be withdrawn upon terms. Upon this being done, the promovent proceeds to prove the Will unless Probate has already been granted in common form. In such a case and according to the practice on the Original Side of the Court the caveat is discharged and the grant made. Such an order is alone within the scope of the suit. But if a settlement has been arrived at under which opposition has been withdrawn, it is recited in the decree that the parties have agreed to terms of settlement and it is ordered that such terms be recorded, The terms are then recorded in a schedule annexed to the decree. Such terms when, as they ordinarily are, beyond the scope of the suit are not the subject-matter of the decree, and if not carried out, must be enforced by separate suit. 5. See page 29 last paragraph to the top of page 30 of the report. This practice on the Original Side was also followed in a very recent case which was carried on appeal to his Majesty in Council, namely the case of Secretary of State for India in Council v. Srimutty Parijat Debi L. R. 63.I. A. 61. B. c. 40 C. W. N, 185 (1935). From page 65 of the report it appears that in the administration suit the caveat was withdrawn and a decree in the probate proceedings was made by the learned Judge. The decree directed that caveat should be discharged and that probate of the said Will should be granted. The decree then proceeded to recite the agreement between the parties which was directed to be recorded. The decree directed that caveat should be discharged and that probate of the said Will should be granted. The decree then proceeded to recite the agreement between the parties which was directed to be recorded. We draw the attention of the learned Judge to these two cases in order that after he has taken evidence with regard to the proof of the Will, if any additional evidence is necessary, as there is already some evidence on the record and after he is satisfied of the due execution of the Will, he will proceed to record the petition of compromise. 6. We accordingly set aside the order of the District Judge refusing probate and direct him that after the Will has been proved either in common or solemn form, he will record the compromise which had already been filed by the parties. The result is that this appeal is allowed and the case remanded to the lower Court to be dealt with in accord-Mice with the directions mentioned above. 7. There will be no order for costs in this appeal. Future costs will be in the discretion of the lower Court. Patterson, J. I agree.