Interested parties, including creditors of the heir of a testator, have the right to apply for the revocation of probate under Section 263 of the Indian Succession Act, 1925. Additionally, transactions executed before the enactment of the Benami Transaction (Prohibition) Act, 1988, are not barred by the Act.

ORDER :

1. The present petition has been filed under Article 227 challenging the order dated 14.01.2020 passed by the District Judge, Darbhanga in Probate Revocation Case No. 17/2019 whereby the learned District Judge rejected the petition dated 08.11.2019 filed on behalf of the petitioner under Order VII Rule 11 of the Code of Civil Procedure, 1908, hereinafter referred to as ‘the Code’.

2. Brief facts of the case is that petitioner Sudhir Kumar Singh, son of Sri Nageshwar Singh, filed Probate Case No. 07/2018 on the basis of registered will deed dated 15.05.1966, executed by his grandfather, late Shatrughan Singh. It was mentioned in the probate petition that after executing the deed of will, the testator handed over it to the petitioner but that was destroyed. Thereafter, the petitioner obtained certified copy of that deed and applied for probate. The final order was passed and will was probated, vide order dated 17.12.2018 and a certificate was issued of the probate of will on 20.12.2018. Thereafter, the respondent No. 1, Smt. Sudhira Jha, (now has died and substituted by her heirs and legal representatives) filed revocation petition on 13.09.2019, which was registered as revocation case No. 17/2019 under Section 263 of the Indian Succession Act, 1925, hereinafter referred to as ‘the Act’. The applicant of the revocation petition, Late Sudhira Jha, mentioned that the will deed dated 25.05.1966 was forged, fabricated and fraudulent. She has purchased the land which is subject matter of will from Nageshwar Singh, father of the petitioner through two sale deeds dated 04.05.1981 and 06.05.1982 in the name of Smt. Neelam Kumari who is her Benamidar. Smt. Sudhira Jha and Smt. Neelam Kumari compromised the case in Lok Adalat and it was held that the property was purchased by Sudhira Jha.

3. Learned senior counsel, Sri. Sanjay Singh, for the petitioner has submitted that respondent Sudhira Jha cannot file a petition for revocation of the probate order granted in favour of the petitioner since Sudhira Jha is stranger to the family. His second submission is that the said transaction was barred by the provisions of Benami Transaction (Prohibition) Act, 1988.

4. In support of his submission No. 1, he has relied upon a decision of this Court, Smt. Dular Kuer vs. Smt. Kesar Kuer and others, reported in AIR 1964 Patna 518 and submitted that in that case it was held that the person having no possible chance of succeeding to testator’s estate cannot file an application for revocation of probate on the ground of absence of the citation. Learned counsel has also cited a decision reported in (2007) 8 Supreme Court Cases 506 Sunil Gupta vs. Kiran Girhotra and others and submitted that in a probate case impleadment of transferee to the probate petition is not required.

5. In reply, the learned senior counsel for the respondents, Sri Kamal Nayan Chaubey, has submitted that Section 263 of ‘the Act’ makes a provision of revocation or annulment of the order of probate for just cause. From bare perusal of this Section it transpires that the probate may be revoked or annulled for just cause. It has not been mentioned in that section as to who is entitled to apply for the revocation or annulment. Whenever Court feels that the revocation or annulment is necessary for just cause that can be revoked or annulled. Section 263 of ‘the Act’ reads as under:-

“Revocation or annulment for just cause. – The grant of probate or letters of administration may be revoked or annulled for just cause.

Explanation. – Just cause shall be deemed 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

(d) the grant has become useless an