By this petition, petitioner seeks revocation of probate dated 7th July 2000 granted by this Court in Probate Petition No.1156 of 1998 to the extent of Item No.8 of Schedule-I and for an order and direction against the first respondent to surrender the said probate dated 7th July 2000 to this Court.

2. It is the case of the petitioner that by deed of conveyance dated 27th July 1982 between Mr Amratlal Gordhandas Sonawala as Vendor and four purchasers viz. (1) Smt. Kumudben Bhanubhai Shah, (2) Shri Aminuddin Gulab Shaikh (petitioner herein), (3) Mrs Jayaben Kanchanlal Shah (deceased testatrix) and (4) Rajendra Jitendra Shah, a plot of land described as plot-B being portion of land bearing Survey No.112 CTS No.492 (1, 2, 3, 4 and 5) of village Eksar Pahadi admeasuring 1324.60 sq. meters was purchased by all the purchasers jointly. It is the case of the petitioner that though all the four purchasers were party to the said deed of conveyance, their respective share was not mentioned in the deed of conveyance. According to the petitioner, petitioner was entitled to 48.25 % share in the said plot in view of larger amount paid by the petitioner towards consideration for purchase of the said plot.

3. On demise of Mrs Jayaben Kanchanlal Shah one of the co-owner of the said plot who had executed a Will, the Executor filed testamentary petition (1156/98) in this Court for grant of probate. Mr Raymond, learned counsel appearing on behalf of the petitioner invited my attention to Clause-(5)(B) of the Will and Testament left by said Mrs Jayaben Kanchanlal Shah. English translation of Clause-(5)(B) of the said Will is extracted as under :

(B) Whatever share, I have in Plot No.4-B, Sonawala Estate, Sonawala Main Road, Goregaon (West), Mumbai – 400 063, I give and bequeath the said share to aforesaid Shri Deepak Mahendrakumar Shah and Mayank Mahendrakumar Shah in equal shares as and by way of inheritance. None of my other heir, shall have any king of right therein.

4. Learned counsel invited my attention to the averments made in the petition (1156/98) and in particular para 3 thereof. It is stated in the petition that inadvertently in the Will of the said deceased, plot 4-B was mentioned in Clause-5 of the Will instead of plot B. It is stated that the petitioner has necessary documents pertaining to the said property at Sonawala estate. In the schedule to the said petition, petitioner has described the said property as “plot-B admeasuring 1324.60 sq. meters”. It is also stated that the said property does not fetch any rent. The other shares of the said plot are (1) Smt Kumudben Banubhai Shah, (2) Mr Aminuddin Shaikh, and (3) Shri Rajendra Jitendra Shah, all having equal shares in the said plot. According to said schedule, the said plot-B was owned by four co-owners equally.

5. It is submitted that in the Will left by the said deceased, it was clear that whatever share the deceased had in plot bearing No.4B, the said share was bequeathed in favour of the beneficiaries. Learned counsel submits that even if there is wrong description of the property in the Will, executor cannot make any correction in the description of the property in probate petition. It is submitted by the learned counsel that on the basis of such correction made by the executor in respect of the property, executor had obtained the probate by reducing the share of the petitioner from 48.25 % to 25% in respect of the said plot owned by the petitioner and others and thus, to that extent the probate obtained by the executor is required to be revoked. Learned counsel submits that the petitioner when came to know about the probate, he applied for sub-division of the plot to the learned Collector. Learned Collector passed an order for demarcation and sub division of plot-B in that ratio. It is submitted that petitioner is in possession of 48.25% area of the said plot. Being aggrieved by the said order passed by the Court, respondent Nos.2 and 3 who are beneficiaries unde