DINANATH SHAH Vs. SURATI DEVI & ORS.

JUDGEMENT

(1.) THIS appeal is directed against the order dated 30th July. 1997 passed by the learned Chief Judge. City Civil Court. Calcutta In Revocation Case No. 43 of 1988 revoking the probate granted in Prohate Case No. 100 of 1986.

(2.) LEARNED Counsel for the respondents, on the other hand, contends that the scope of the proceeding under Section 263 of the Indian Succession Act is limited to the examination of the relevant points on which the probate could be revoked. In the present case, it appears from the Will itself that her existence is admitted, though as concubine, however, not admitted by the respondents. On the other hand, the issues are shown to be those of the testator in the birth certificates granted by the Calcutta Municipal Corporation and in the ration cards. Therefore, it cannot be denied that those respondents No. 2, 3 and 4 are children of the testator, which, however, is not admitted by the appellant. It appears that these respondents as widow and children of the testator are entitled to inherit or succeed to the estate of the testator and as such are entitled to citation. Therefore, the court has rightly found absence of citation. At the same time, though the court did not deal with the question of suppression of fact, namely, the existence of the respondents No. 1,2, 3 and 4. yet these are sufficient factors on which probate has been rightly revoked. Therefore, the appeal should be dismissed.

(3.) THE matter arises out of an application for revocation of grant of probate under Section 263 of the Indian Succession Act, 1925. Section 263 provides for revocation or annulment of the grant of probate or letters of administration for just cause. Just cause has been explained to deem to exist where "(a) the proceedings to obtain the grant were defective in substance; or (b) the grant was obtained fraudulently by making a false suggestion, or by concealing from the Court something material to the case; or (c) the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant, though such allegation was made in ignorance or inadvertently; or....". It also provides for the following illustrations : "(i) The Court by which the grant was made had no jurisdiction, (ii) The grant was made without citing parties who ought to have been cited, (iii) The Will of which probate was obtained was forged or revoked....".