In testamentary jurisdiction, a Probate Court cannot set aside an order of revocation and make a compromise part of the probate originally granted without considering the merits of the appeal.

( 1 ) THIS is an application for review of a judgment and decree passed by a Division Bench of this Court by which an appeal preferred against the revocation of grant of probate has been disposed of in terms of the compromise between the parties.

( 2 ) MR. Roy, the learned Advocate appearing on behalf of the applicant, at the very outset, submits before us that there is an error apparent on the face of the decree sought to be reviewed herein, inasmuch as, an Appellate Court dealing with an appeal against revocation of the grant of probate cannot dispose of such an appeal and set aside the order of revocation on the basis of the compromise effected by some of the natural heirs of the testator. Mr. Roy submits that the learned Trial Judge having revoked the grant of probate on sufficient cause and an appeal having been preferred against such order of revocation, the Appellate Court could set aside such order only on being satisfied that the order of revocation was unjustified. Mr. Roy draws attention of this Court to the fact that some of the heirs of the deceased testator made a compromise during the pendency of the appeal thereby deciding to divide the properties among themselves and on the basis of such compromise, the Division Bench disposed of the appeal after setting aside the order of revocation without entering into the merit of the appeal and the said agreement formed part of the decree. Mr. Roy further submits that once the Division Bench set aside the order of revocation, the original probate revived and even in such a case, there was no valid reason for passing the order in terms of compromise effected among some of the natural heirs of the testator. Mr. Roy further submits that his clients being admittedly heirs of deceased testator cannot be bound by the compromise arrived at among some of the heirs of the deceased. He, therefore, prays for review of the order.

( 3 ) MR. Basu, the learned Advocate who appeared on behalf of the appellant before the Division Bench vehemently opposed the aforesaid contention of Mr. Roy and contended that according to the present trend in the field of jurisprudence, there is no bar in effecting compromise even in respect of probate proceedings. Mr. Basu contends that the present review application is not maintainable as the applicants were not parties to the appeal preferred against the order of revocation and as such, they cannot be said to be "aggrieved" by the order sought to be reviewed. In support of the question raised by him as to whether an application for review is maintainable at the instance of the persons who are not parties to the appeal in which the order sought to be reviewed is passed, Mr. Basu relies upon a Division Bench decision of the Delhi High Court in the case of Bharat Singh vs. Firm Sheo Pershad Giani Ram and Ors. , reported in AIR 1978 Delhi 122. Mr. Basu, thus, prays for dismissal of the present application for review.

( 4 ) BEFORE we proceed to consider the questions involved in this application for review, it will be appropriate to quote the entire order passed by the Division bench:"the compromise as tendered in the petition signed by all the parties at present alive and their Advocates is accepted on record and such compromise be recorded in this proceeding. It appears that the Will was probated in 1967 but a revocation was obtained in 1986. The appeal before us is from the order of revocation. We are of the opinion that in probate matters, it is legal for the parties to adjust the Court proceeding amongst themselves, so that probate issues; however, such adjustment must not in any manner shock the conscience of the Court or leave any doubt in the Court's mind about the genuineness of the Will which is being probated by it. Similar principles apply in the matter of adjustment of revocation. We are satisfied that the Will having been probated nearly 33 years ago, it will not serve any useful purpose for the parties to have a lo