JUDGMENT : K.R. Mohapatra, J. Judgment and decree dated 27.02.2004 and 12.03.2004 respectively passed by the learned Civil Judge (Senior Division), Aska, Ganjam in T.S. No.74 of 1998 are under challenge in this appeal. 2. Defendant is the appellant before this Court. The relationship of the parties is not disputed. One Madhab Bisoi had two sons, namely, Ranka and Srinivas, the defendant. Ranka died in the year 1980 leaving behind his only daughter, Laxmipriya, who was plaintiff in the Civil Suit. The suit was filed for partition. Detailing genealogy of the family, plaintiff asserted in the plaint that during life time of Ranka the property were joint and Rank was contributing 50% for cultivation and Srinivas was cultivating the suit land and the usufructs were being divided equally. After death of Ranka, the plaintiff continued with the said practise and was contributing 50% towards cultivation. When the defendant refused to give the legitimate share in the property, she filed the suit for the aforesaid relief. Defendant filed written statement admitting the relationship. He stated that both the brothers were residing separately since 1970. During life time of Ranka, movables were partitioned; but they remained in jointness in respect of immovable properties. He further stated that before his death, Ranka executed a Will on 23.03.1998 bequeathing his share in favour of his second son, Ashok. Thus, he claimed that the plaintiff is not entitled to any share in the suit property and he claimed that the suit is not maintainable and prayed for dismissal of the same. 3. Learned Civil Judge (Senior Division), Aska taking into consideration the rival pleadings of the parties framed as many as six issues, out of which Issue No.4 is relevant for the purpose of adjudication of this case. Issue No.4 is quoted hereunder:- "Whether Rankanidhi Bisoi the father of the plaintiff voluntarily on free will and consent executed a willnama in favour of Ashok Kumar Bisoi his nephew declaring him to be his sole successor of his property after his death and to perform his Sudhikriya and Sradha thereafter?" 4. To substantiate his case, the plaintiff examined herself and the defendant examined as many as five witnesses including Ashok as DW-1, Scribe of the Will as DW-3, attesting witness as DW-2 and DW-4. He examined himself as DW-5. To substantiate his case, the plaintiff examined herself and the defendant examined as many as five witnesses including Ashok as DW-1, Scribe of the Will as DW-3, attesting witness as DW-2 and DW-4. He examined himself as DW-5. On consideration of the materials on record and on a threadbare discussion of contentions of the parties, learned Civil Judge decided the issue No.4 against the defendant and decreed the suit for partition allotting 50% of the share in favour of the plaintiff in respect of the suit property. Being aggrieved, the defendant has preferred this Appeal. 5. Before commencement of hearing of the appeal, an attempt was made to settle the matter between the parties as it is essentially a dispute between the members of a family and the plaintiff is the nice of the defendant. Learned counsel for the appellant submits that, admittedly the suit properties are joint family properties and in absence of the Will, the respondent/plaintiff is entitled to half share in the suit property. But, at the outset, he submits that the suit is not maintainable for non-joinder of necessary party, i.e., Ashok, who is the beneficiary of the Will and in his absence, the suit would not be maintainable. He also refers to the stand taken with regard to non-joinder of parties in his written statement. However, no issue is framed to that effect and the defendant admittedly had never raised any objection with regard to non-framing of issue to the effect of non-joinder of necessary party. 6. Learned counsel for the respondent, on the other hand, submits that he having not raised any objection to the non-framing of issue with regard to non-joinder of necessary party he deemed to have been waived such a right to be raised at later stage. He also refers to provision of Order 1, Rule 13, CPC in support of his contention. He further submits that Ashok was examined as DW-1 in the suit and thus he was well aware of the suit and the dispute involved therein. He could have prayed for being impleaded as a party to the suit. Moreover, the plaintiff did not lay her claim on the basis of the Will. She only prayed for a partition. It is the defendant, who had come up with a case of a Will executed by late Ranka, the father of the plaintiff. He could have prayed for being impleaded as a party to the suit. Moreover, the plaintiff did not lay her claim on the basis of the Will. She only prayed for a partition. It is the defendant, who had come up with a case of a Will executed by late Ranka, the father of the plaintiff. Thus, it is for him to prove the Will to get benefit out of it. During pendency of the appeal, the defendant/appellant died and his legal heirs including Ashok, the beneficiary of the Will (Ext.A) has been made party. Thus, it is the contended that non-joinder of party cannot be fatal to the suit and the suit is very much maintainable. In furtherance of his submission, learned counsel for the respondent submits that the appeal at the instance of the appellant/defendant is not maintainable as he was no way aggrieved by the decree. It is only Ashok who may feel aggrieved by the decree; but, he did not come up before this Court seeking a leave to prefer any appeal. Hence, the appeal at the instance of the defendant is not maintainable. 7. Apparently, Ashok has already been impleaded as party to the suit as appellant No.1(c). Hence, this appeal being a continuation of the suit is maintainable, and more particularly, this being a suit for partition, this Court feels it proper not to delve much into the question of maintainability and to decide the same on merit. 8. Learned counsel for the appellant drew attention of this Court to the evidence of DW-1 and DW-4, who are the beneficiary and attesting witnesses to the Will respectively, and submits that their evidence are quite consistent which proves execution of the Will in favour of Ashok. Learned Court below has acted illegally in not considering the evidence of the witnesses from its proper perspective which resulted in gross miscarriage of justice by not believing the Ext-A to be genuine. 9. Learned counsel for the respondent on the other hand refuting contention of Mr.Das submits that probate of a Will in the district of Ganjam under Section 276 of the Indian Succession Act is not necessary. However, law is well-settled that suspicion attached to the Will must be removed by the beneficiary himself and failure to do so makes the Will not acceptable under law. However, law is well-settled that suspicion attached to the Will must be removed by the beneficiary himself and failure to do so makes the Will not acceptable under law. He drew attention of this Court to the suspicious circumstances some of which are stated as under. DW-1, who is none other than the son of the defendant, in his deposition at paragraph 7 deposed that, the Will was kept with the defendant. However, in the cross-examination, he categorically stated that the Willnama was discovered underneath the pillow of Ranka after his death. DW-1, the beneficiary of the Will took prominent part in execution of the Willnama. He was all along present at the time of presentation of the Will and went to call the witnesses who signed the Willnama. DW-1 in his deposition stated that he went to call the witnesses being asked by Ranka. DW-2 in his deposition stated that the Willnama was scribed as per the dictation of Ranka and it was scribed by one Gobinda Pattnaik. However, DW-3, Gobinda Pattnaik (the Scribe) in his evidence stated that Ranka had called him 8 to 10 days prior to execution of the Willnama. Ranka had made a short note and asked him to draft the Will. He made a rough copy of the Will and read over the same to Ranka. It is his statement that the Will was scribed at the house of Ranka. He also stated that nobody was present at the time of scribing of Ext.A, the Will. After the Will was written, the witnesses were called. However, DW-2, who is one of the attesting witnesses, deposed in his evidence that when the Willnama was executed, five persons were present including Ashok and the Will was scribed in the house of Srinivas. DW-3, the Scribe stated that Ranka had brought the stamp papers on which the Will was scribed. But, Ext.A, the Will, was scribed on plain papers and not on stamp papers. DW-5, the defendant, in his evidence stated that the suit land was the ancestral property and till the death of Ranka they were joint. Ranka was always suffering from physical and mental illness and he was not mentally stable. Ranka died two days after execution of the Will. Ashok brought the Will kept under the pillow of dead body of Ranka and showed the same to him (DW-5). Ranka was always suffering from physical and mental illness and he was not mentally stable. Ranka died two days after execution of the Will. Ashok brought the Will kept under the pillow of dead body of Ranka and showed the same to him (DW-5). This Court perused the judgment in its entirety and the relevant documents including the statements of witnesses. It is apparent that the suspicious circumstances attached to the Will were not removed or dislodged by the defendant. It is also his submission that learned Trial Court has rightly dealt with the matter and in view of the suspicious circumstances attached to the Will, the same was rightly rejected and the plaintiff being the daughter of Ranka is entitled to 50% share in the suit property. 10. Hearing the learned counsel for the parties and on perusal of the materials produced before this Court, I find the learned Trial Court has proceeded in the right direction to hold that Will (Ext.A) is not genuine and his finding with regard to division of share between the plaintiff and the defendant is also not improper. Thus, I find no justification to interfere with the impugned judgment and decree. The appeal is accordingly dismissed being devoid of any merit, but in the circumstances, no order as to costs.