A PERSON CLAIMING TITLE TO THE PROPERTY FROM THE TESTATOR AND ASSERTING THAT AT THE TIME OF DEATH OF THE TESTATOR, HE HAD NO TITLE TO THE PROPERTY COVERED UNDER THE WILL, IS NOT ENTITLED TO FILE AN APPLICATION FOR REVOCATION OF PROBATE.

( 1 ) THIS revisional application under Section 115 of the code of Civil Procedure is at the instance of the legatee and the executrix of a Will and is directed against Order No. 21 dated August 19, 1998 passed by the Special Judge, and additional District Judge, Alipore in Revocation Suit No. 83 of 1997 arising out of porbate case No. 72 of 1994. By the aforesaid order the learned court below held that the revocation case under Section 263 of Indian Succession Act, 1925 at the instance of the opposite party was maintainable.

( 2 ) ONE Niharendra Nath Ghatak, executed the disputed Will thereby bequeathing all his movable and immovable property in favour of the petitioner No. 1. Petitioner No. 2 was made executrix of the said Will.

( 3 ) AT the instance of the petitioner No. 2, the probate of the said Will was granted by the District Judge. Thereafter the opposite party applied for revocation of the probate and in paragraphs 6 and 7 of the said application, opposite party made out its locus standi by making the following everments :-"by a registered indenture of conveyance dated 6th May, 1991 made between the said Niharendu Nath Ghatak therein referred to as the vendor of the one part and your petitioner therein referred to as the purchaser of the other part, the said Niharendra Nath Ghatak for the consideration therein mentioned granted, transferred, conveyed, assigned and assured upto and in favour of your petitioner. All that the said property absolutely and forever and without any reservation whatsoever. A copy of the said conveyance is annexed hereto and marked with the letter "c". By virtue of the aforesaid conveyance your petitioner became entitled to the said property absolute and without any right of any person whatsoever save and except the said company who had entered into an agreement for development with the said Niharendra Nath ghatak. By virtue of the said conveyance, the said bequest made in favour of the respondent No. 2 also stood extinguished and/or revoked and/or of no effect. Therefore, the respondent No 2 could not have nor has any right, title, interest over and in respect of the said property or any part or portion there of in any manner whatsoever. "

( 4 ) IN view of the aforesaid statement of the opposite party, the petitioners filed an application disputing the right of the opposite party to maintain an application under Section 263 of the Indian Succession Act and prayed for determination of the said question

( 5 ) BY the order impugned, the learned trial Judge has held that such application is maintainable at the instance of the opposite party.

( 6 ) BEING dissatisfied, the petitioners have filed the instant revisional application

( 7 ) MR. Dasgupta, the learned Senior advocate appearing on behalf of the petition ers has contended that the opposite party having claimed title to the property covered by will by virtue of an alleged sale deed executed by the testator was not entitled to pray of revo cation of the probate. Mr. Dasgupta submits that the opposite party having alleged that the testator had no right over the property covered by the Will at the time of his death, it cannot be said to have any interest in the estate of the testator and as such the opposite party had no locus standi to pray for revoca tion of the probate. In support of such contention, Mr. Dasgupta has relied upon the following decisions of this court :- (a) Sri Gobmd Pershad v. Ms. Laljhari, (b) Southern Bank v. Kesardeo goneriwalla (by the Trial Court); (c) Kartick Chandra Shaw v. Smt. Ranjita Pal and Ors.

( 8 ) MR. Roychowdhury, the learned senior advocate appearing on behalf of the opposite party has on the other land supported the order impugned and has contended that the opposite party having acquired interest in the disputed property was entitled to be heard before the grant of probate. Mr. Roy Chowdhury in support of such contention relied upon the followiing decisions:- (a) Smt. Sima Rani