JUDGMENT Das, J. - This is an application on the part of Ranada Prosanna Ghosh and Digendra Kumar Chandra for an order that probate of the last Will and testament of the deceased above-named stated 15th November, 1940, and of the two codicils thereto dated 17th June, 1941 and 22nd September, 1941, be granted to them as two of the executors named in the codicil dated 22nd September, 1941, with effect throughout the whole of British India and that they be added as parties to this suit and other consequential orders. Narendra Narayan Ray Chaudhury, the deceased above-named, was a Hindu governed by the Bengal School of Hindu Law. He was the Zemindar of Baldah and owned considerable properties movable and immovable situate within the provinces of Bengal, Orissa and the United Provinces. He died on August 11th, 1943. He is said to have executed a Will on November 15th, 1940, and two codicils dated June 17th, 1941, and September 22nd, 1941. All the three testamentary documents were registered. By the Will he appointed the Plaintiff who is his son-in-law and the latter's son Anami Prosad Roy Choudhury who is a minor and one Durga Kumar Mitra his executors. Subject to certain pecuniary legacies and right of residence given to certain persons, the testator bequeathed the bulk of his estate to certain named trustees including the Plaintiff upon trust for public and charitable purposes. By the first codicil the testator appointed one Sakti Prosad Ray Chaudhury as an additional trustee and executor and made a few very minor alterations in the Will. By the second codicil the testator altered the name of the trust fund from Narendra Narayan Trust Fund into Harendra Narayan Trust Fund and revoked the appointment of Sakti Prosad Ray Chaudhury and appointed the present applicants and two other persons named Ardhendu Shekhar Chakravarty and Dinesh Chandra Ray Chaudhury as additional executors and trustees. On February 14th, 1944, the Plaintiff presented a petition to this Court for grant of probate of the Will and the first codicil to himself with liberty to the other executors to come and apply for probate if they so desire. In the petition the Plaintiff recited the fact of the execution of the Will and the first codicil. On February 14th, 1944, the Plaintiff presented a petition to this Court for grant of probate of the Will and the first codicil to himself with liberty to the other executors to come and apply for probate if they so desire. In the petition the Plaintiff recited the fact of the execution of the Will and the first codicil. In paragraph 4 of the petition the Plaintiff alleged that the testator had executed another codicil to the said Will on the 22nd September, 1941, but had revoked the same by tearing it off. Sm. Mrinalini Roy Chowdhurani, the widow of the testator, having previously entered a caveat, a citation was on February 14th, 1944, direct be issued to her and she was called upon to file her affidavit in support of her caveat within the usual time. On March 3rd, 1944, a letter was received by the Registrar from two persons named Bibhuti Bhusan Das and S. K. Naha informing the Registrar that the testator had executed a second codicil which had been registered and asked the Registrar to request the District Magistrate or District Registrar of Dacca to forward the certified copy of the second codicil. The matter being referred to me by the office directed that general citation under sect should be issued and widely advertised and that a notice should also be given to the two persons who had written the letter to the Registrar. It does not appear from the records that these directions have been carried out. The caveatrix having filed her affidavit, an order was made on May 2nd, 1944, setting down this matter as a contentious cause. On August 21st, 1944, one Sm. Sudhansu Kiron Roy Chaudhurani claiming to be the second wife of the testator applied before Ameer Ali, J., for being added as a party Defendant to this contentious cause and obtained an ex parte order. An application was made to set aside that order but I declined to make any order on that application and directed that the costs to be incurred by Sm. Sudhansu Kiron Ray Chaudhurani in these proceedings would be reserved and be dealt with after the decision of her Dacca suit in which she has claimed a declaration that she is a validly married wife the testator. Sudhansu Kiron Ray Chaudhurani in these proceedings would be reserved and be dealt with after the decision of her Dacca suit in which she has claimed a declaration that she is a validly married wife the testator. The present applicants took out the present summons on February 14th, 1945, for being added as party to this contentions cause and for grant of probate of the Will and the two codicils to them. 2. Learned Counsel appearing for the Plaintiff and the Defendant Sm. Mrinalini Ray Chaudhurani have questioned the maintainability of this application. I have been referred to the case of Venidas Nemchand v. Bai Champavati I. L. R. 53 Bom. 829 (1928). In that case Rangnekar, J., held that if on a petition for probate the caveator sets up another Will of the testator, it is obligatory upon him to file a separate petition to propound the Will set up by him and then the two suits should be heard together or be consolidated. The reason of the decision is that in a probate suit the only issue before the Court is whether the Will propounded or in respect of which a grant is asked for is the last Will. The matter being set down as a contentious cause the provisions of the CPC would apply. The Code does not recognise any counter-claim. Therefore the caveator by way of counter-claim cannot pray for a grant of probate of the Will set up by him. If the caveator desires a grant of probate of the Will set up by him, he must file a substantive petition complying with the provisions of the Indian Succession Act and the Rules of Court. The propounder of the earlier Will shall then be entitled to put in a caveat to that application and that application will have to be set down as a contentious cause. Citation will also have to go to all persons interested. If the caveator in the application for probate of the earlier Will is allowed to set up a later Will as a defence to that application, all the procedure mentioned above will be evaded and the decision will not be final, because anybody interested in the second Will may come forward and challenge the decision for want of citation to him. Relying on the above Bombay case and for these reasons both Mr. S. C. Ray and Mr. Relying on the above Bombay case and for these reasons both Mr. S. C. Ray and Mr. S. Chatterjee have maintained that the present applicants are not entitled, in this suit, to ask for probate of the Will and the two codicils. 3. I respectfully agree that the decision of Rangnekar, J., in that case correctly lays down the general rule. But the case now before me appears to be substantially different on fact. Here the Plaintiff himself in his petition for probate refers to the second codicil. He does not say that the second codicil was not duly executed or attested. What he says is that it was revoked by the testator by tearing it off. Before he obtains probate of the Will and the first codicil he will have to satisfy the Court that the second codicil was revoked as alleged by him. Without proof of revocation of the second codicil he will not, on his own pleading, be entitled to probate of the Will and the first codicil for in that case, those will not be the last Will of the testator. It is not a case, where the Plaintiff propounds a Will and the caveator sets up another Will. Here the Plaintiff has himself set up all three testamentary documents and claims that the second codicil was revoked. Therefore the issue of revocation of the second codicil arises on his own petition. The matter has been set down as a contentious cause and the provisions of the CPC apply. It will be necessary to decide the issue of revocation of the second codicil. The present Defendant challenges the testamentary capacity of the testator and is not interested to resist the plea of revocation of the second Will. The added Defendant is also in the same position, for she also challenges the validity of all the three documents. It is, therefore, necessary, in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in this suit, that the parties interested to uphold the second codicil should be before the Court. I agree with Mr. Chakravartti that in the facts and circumstances of this case the presence of the persons appointed as executors by the second codicil will enable the Court to effectively adjudicate upon the vital issue I have mentioned and that the Court has power tinder Or. I agree with Mr. Chakravartti that in the facts and circumstances of this case the presence of the persons appointed as executors by the second codicil will enable the Court to effectively adjudicate upon the vital issue I have mentioned and that the Court has power tinder Or. 1, r. 10 to add them as parties to this suit. I therefore direct that the two applicants and the other two persons appointed executors by the second codicil be added as parties Defendants to this suit. As regards the prayer for grant of probate of the Will and the two codicils, I agree with Messrs. S. C. Ray and S. Chatterjee that such a prayer cannot be granted on this application of in this suit. For that purpose the present applicants will have to make a substantive application it they be so advised to do. I further order that general citations should be issued and notice should be given to the two persons who wrote the letter to the Registrar as I directed on March 13th, 1944. Costs of all parties appearing on this summons except those of Mr. B. C. Dutt's client will come out of the estate.