A grant of probate obtained by suppressing the material fact that the heirs of the deceased's husband were her heirs according to the Hindu Succession Act, 1956, can be revoked under Article 263 of the Indian Succession Act, 1925.

( 1 ) THIS first appeal is at the instance of a caveator in proceedings for grant of probate and is directed against the judgment and decree dated 12th August, 1989 passed by the learned Chief Judge, City Civil court at Calcutta in O. C. Suit No. 8 of 1986 thereby granting probate in favour of the respondent.

( 2 ) THE respondents herein filed an application before the learned Chief Judge, city Civil Court at Calcutta for grant of probate of the last Will and testament allegedly executed by one Smt. Kamala Bala Dutta, widow of Late Dulal Dutta. In the application for grant of probate, it was disclosed that the testatrix was a childless widow and that she left behind eleven persons as her near relations. Of those eleven persons, three were the sons of the pre-deceased brother of the testatrix, four were the daughters of the predeceased brother, two were the sons of predeceased sisters and the remaining two were the daughters of the predeceased sisters.

( 3 ) IT appears that most of the aforesaid alleged near relations were served by Order 5 Rule 20 Of the Code of Civil Procedure through publication in the daily newspaper.

( 4 ) OF the aforesaid persons, the appellant alone contested the said probate proceedings and the appellant happens to be one of the own sisters of the respondent

( 5 ) BY the Will, the immovable property belonging to the deceased testatrix has been given to the respondent alone.

( 6 ) THE application was contested by present appellant contending that the deceased was all along staying with her and no such Will at all was executed by the deceased. It was further contended that the provisions contained in the will were unnatural.

( 7 ) THE learned Probate Court on consideration of the materiais on record came to the conclusion that Will in question was the last Will and testament of the deceased, that the same was duly executed and attested and that there was no suspicious circumstances surrounding the execution of the Will and consequently, granted probate.

( 8 ) BEING dissatisfied, the appellant has come up with the present appeal.

( 9 ) INITIALLY, the learned Advocate for the appellant argued the matter on merit on the basis of materials on record but subsequently, came up with an application under Order 41 Rule 27 of the Code of Civil Procedure for taking into consideration the deed of purchase in respect of the property covered by the Will and further drawing attention of the Court to the fact that the deceased being a childless widow, the heirs of her husband are her real heirs according to the Hindu Succession Act, whereas, the probate was obtained by giving notice to the heirs of the father of the testatrix who are not at all the heirs of the deceased. In the application for additional evidence, the deed of purchase by which the testatrix acquired title to the property along with her husband has been annexed and at the same time, the names of some of the heirs of the deceased husband of the testatrix have also been disclosed.

( 10 ) THE aforesaid application has been opposed by the respondent but the fact the property was purchased by virtue of the sale deed annexed with the application or that the testatrix had heirs from the husband's side as mentioned in the application were never disputed.

( 11 ) IN view of the aforesaid fact, we have decided to allow the application and we have taken into consideration the statements made in the application for additional evidence.

( 12 ) SINCE, the facts contained in the application for additional evidence are not at all disputed and nor did the appellant pray for giving evidence of rebuttal, we have accepted the position that the testatrix purchased the property by virtue of the aforesaid deed and have also taken note of the fact that there are heirs of the husband of the testatrix.

( 13 ) ONCE, it is established that the property was purchased in the joint names of testatrix and her husband and the husband had predeceased he