IMPORTANT POINT
Procedure required under Section 295 of Indian Succession Act need not be adopted for disposal of application filed under Section 263 for revocation of the probate or the letter of administration.

ORDER

Leave granted.

2. These appeals by special leave arise from the judgment of the Gujarat High Court dated August 14, 1995 made in Civil Revision Application Nos. 1142 and 1148 of 1995 and the order dated July 18, 1995 made in Civil Application Nos. 2825 & 2829 of 1995 in CRA Nos. 1142 & 1148 of 1995.

3. The admitted facts are that one Manvantrai Mehta owned Plot No. 13 in Krishna Cooperative Housing Society at Ahmedabad and also an open plot No. 14 in the said society. He died on 16.1.1995 leaving behind his widow Kamlaben and five children, namely, Narendra, Chandravadan (Respondents herein) and Nalini, Chandrakalaben and Vasantben (petitioners herein). In other words, he left behind him three daughters and two sons. Plot No. 13 was in the name of Narendera Mehta who died on August 8, 1971. But his wife was not known. Kamlaben also died on September 16, 1984. The respondents filed C.M. Application No. 123 of 1985 in the Civil Court at Ahmedabad and obtained probate to the will left by Kamlaben, their mother. The probate was granted on January 16, 1987. The appellants on coming to know of the said probate filed an application to revoke the probate. The Civil Judge, City Civil Court, Ahmedabad was prayed to convert the application into a regular suit. It was rejected by the trial Court. On revision, the High Court by order dated July 18, 1995 held that there was proper explanation for the delay in filing the application for revocation of the probate but directed to treat the application as a suit filed under Section 295 of the Indian Succession Act, 1925 (for short, the Act ). Feeling aggrieved by the latter direction, these appeals have come to be filed.

4. Shri Harish Salve, learned senior counsel apearing for the appellants, contended that the application for revocation cannot be treated to a suit filed under Section 295 of the Act. That would apply only in a case where probate was sought for and there was contentious issues involved in that behalf. Therefore, it would be treated as a suit and the propounder who seeks probate or letter of administration will be treated as a plaintiff and the person opposing the claim as defendant and the application would be set out as a suit for trial under the provisions of CPC. But application for revocation is required to be considered on the grounds set out under Section 263 of the Act. When the person who seeks revocation of the probate or letter of administration is required to be dealt with as an application but not as a suit. The District Judge, depending upon the given fact-situation would dispose it of either summarily or on full-dress enquiry, on recording the evidence of witness as a suit. But in no circumstances, it would be treated as a suit. Shri H.K. Puri, learned counsel for the respondents, contended that Part IX of the Act itself gives indication as to the manner in which the proceedings could be dealt with at different stages. Chapter IV of Part IX clearly indicates that when an application is filed for probate it should be dealt with as suit and for revocation of a probate similarly to be treated as a suit and would be considered in accordance with the procedure provided under the CPC. The applicant who seeks revocation of probate would be treated as a plaintiff and the person who opposes the revocation as defendant. Therefore, the High Court was right in directing to treat the application for revocation as a suit and to proceed with the trial on that basis.

5. Having considered the respective contentions, the question that arises for consideration is: whether the application for revocation of the probate would be treated as a suit under Section 295 of the Act ? The said section reads as under:

"In any case before the District Judge in which there is contention, the proceedings shall take, as nearly as may be, the form of a regular suit, according to the provisions of the Code of Civil Procedure, 1908, in which the petitioner for probate or letters of administratio