Filing a Special Leave Petition which is ultimately rejected, does not amount to preferring an appeal within the meaning of Order XLVII Rule 1 of the Code of Civil Procedure, 1908.

( 1 ) - This is an application for review of our judgment, dated 5th May, 1987, on the ground mentioned in the Memorandum of Review. The same are also stated in the petition.

( 2 ) WE are setting out the facts of this case from our judgment, review of which is sought for. These facts are not disputed and not under challenge in this application. The petition for grant of Probate was filed by one Smt. Sumitra Devi claiming herself to be a residual beneficiary under the last Will of the one Gajanand Chaudhury (hereinafter referred to as the Testator ). It was stated in the petition that the testator died on 9th October 1973 at No. 2/2a, Harrington Street, Calcutta within the jurisdiction of this Court. It was stated that the testator, during his life time, used to visit, from time to time and stay at his residential house at Sahabad Gate Hathras District Aligarh in the State of Uttar Pradesh where he had also considerable properties. Having regard to the importance of the averments made in paragraphs 4 and 6 of the said petition, we set out the same verbatim hereinbelow. "on the 4th day of March 1972 the deceased above named executed at Hathras outside the aforesaid jurisdiction the last Will and Testament in Hindi language Nagri Script and registered the same with the Sub-Registrar at Hathras on 13th Day of March 1972. The original Will of the deceased together with official translation thereto is annexed to the affidavit of Hathilal son of Sri Radhelal residing at Gali Malin, Hathras, District Aligarh one of the attesting witnesses to the said Will. The deceased did not appoint nor provided for any appointment of any Executor under the said Will of the deceased. " (paragraph 4 ). "the signature of the testator of the said Will was duly attested by Sri Nathilal, Harprasad Singh, Babulal, Jawahar Lal and Sri Govind Ram and the execution of the said Will is proved by an affidavit of Nathilal annexed hereto and marked with the letter 'a' and also be declaration at the foot herein. " (paragraph 6 ).

( 3 ) BY the said Will the testator gave, bequeathed and constituted the petitioner, who was the wife of Dharam Chand Chaudhury, the youngest son of the testator, as the sole beneficiary and legatee of all his assets. 1t was stated that the deceased left the persons referred to in paragraph 7 of the petition as his heirs and near relatives on whom. the estate would be devolved in case of intestacy according to Mitakshara School of Hindu Law. The relevant portion of the affidavit of Nathilal referred to in paragraph 6 of the petition are set out hereinbelow. "that on 4th day of March 1972 while the said Gajanand Chaudhury also known as Gajanand, possessed of good senses and full conscious executed at Chaudhury Bhawan, Sahabad Gate, Hathras, in the State of Utter Pradesh his last Will and Testament in Hindi language Nagri Script the original Will and official English translation that are hereto annexed and collectively marked with the letter 'x' by putting his signature with the own writing in my presence as well as in the presence of Shri Govind Ram, Harprasad Singh, Babulal and Shri Jawhar Lal, Sub-Registrar, Hathras and immediately thereafter I myself and the said Shri Govindram at the request of the said Gajanand Chaudhury and in his presence as well as in the presence of each other signed our respective names at the foot of the said paper writing as attesting witness hereof. " (paragraph 2)"thereafter, the said Gajanand Chaudhury also known as Gajanand had the said Will registered with the Sub-Registrar Hathras, District Aligarh, U. P. on 13th March, 1972. (paragraph 3)"that the signature of the said Gajanand Chaudhury appearing at the foot, of the said Paper writing and the signature of myself and the said Sri Govind Ram appearing at the foot of the said paper writing are in their respective proper handwriting and the said Testator of the said Gajanand Chaudhury and of myself and the said Shri Govind Ram. "