Non-service of citation is a just cause for revocation of probate, but the court has discretion to consider the circumstances of the case and the conduct of the parties.

( 1 ) THIS was an application for revocation of grant of probate of the testamentary instrument of one Pravin Kumar Kothari (hereinafter referred to as the said deceased) who was a resident of Texas, U. S. A. The deceased left him surviving the petitioner, Dipti, daughter, and Ashoke, son who was appointed executor in the said instrument. The probate was granted on 23rd september, 2004 while this application was made on 21st February, 2005. The fight between the parties is queer event which has unusually happened unlike in case of ordinary testamentary fight. It appears to me that the petitioner executor, Ashoke started taking steps to obtain probate in respect of the testamentary instrument in India, in Calcutta High Court on the one hand and on the other hand, the daughter, Dipti being the applicant herein, started taking steps for obtaining letters of administration of the estates and properties left behind by the said deceased in Texas Court, thinking that the said deceased had died intestate. Both the parties took steps in the manner as follows : after death of the said Pravin on 10th February, 2004 Ashoke on or about 8th April, 2004 applied for grant of probate. On 23rd April, 2004 the citation from this Court was issued and it was sought to be served in terms of the order of the Court by registered post and it was dispatched on 28th April, 2004. The service returned on 18th June, 2004 with an endorsement of refusal. On the other hand, on 22nd June, 2004, Dipti filed appropriate proceedings for grant of letters of administration in the appropriate Court of Texas, U. S. A. and also prayed for appointment of temporary Administrator in respect of the property of the deceased. On 22nd July, 2004 one Mr. Robert Brownrigg was appointed temporary Administrator of the estate of said deceased and also made an application for temporary restraint order and/or injunction against Ashoke from directly or indirectly dealing with the estate of properties of said deceased. On 26th July, 2004 the said temporary Administrator started making inventory of assets left behind by the said deceased. In course of such inventory the respondent Ashoke informed Brownrigg that there are no assets in U. S. A. , no bank account. On 28th July, 2004 there was a conference between the respondent, and the Attorney of the petitioner, Handcock and Brownrigg, the temporary administrator, and in course of such interaction the respondent handed over the documents viz. amongst other the application for grant of probate. In terms of the order of appropriate Probate Court at Texas the Administrator went on functioning without any difficulty till 24th of September, 2004. After having obtained the probate documents and necessary documents the petitioner made this application for revocation of grant of probate.

( 2 ) OBVIOUSLY the probate was granted without any contest. I ask the department for production of the original records. From the records I find that citation was issued in terms of the Court's order by registered post and the envelop shows endorsement of the refusal. It further appears from the records that before grant of the probate, the petitioner, Ashoke himself, filed a caveat in connection with the estate of the said deceased and thereafter an application was made for discharge of caveat with reference to the aforesaid testamentary suit. It appears that on 9th September, 2004 one Mr. Sanjoy Banerjee, learned advocate appearing in support of the application, submitted that under wrong impression his client filed the caveat and he submitted that he had instructions not to press his client's caveat. Thus, the caveat was discharged.

( 3 ) WHAT impression was given by the learned Counsel to the Court is only known to the learned Counsel. In the body of the petition for discharge of caveat it was of course stated that the caveat was filed ordinarily and it was further stated that an application for grant of probate was made. Immediate