A defect of substance in the procedure for granting probate, such as non-citation of interested parties, can be a just cause for revocation of the probate under section 263 of the Indian Succession Act, 1925.

( 1 ) THIS appeal has been filed against the judgment and decree dated 30. 05. 1988 passed by the learned Assistant District Judge at contai in Other Suit No. 116 of 1980/other Suit No. 29 of 1979.

( 2 ) BY the judgment and decree under appeal, the learned Judge held that the Probate of the Will was earlier obtained fraudulently by the defendant No. 1, the appellant before us, and the same is liable to be revoked and, accordingly, the learned Judge granted a decree for revocation of the grant of the Probate of the Will by a reasoned judgment. In the said judgment, it was held that the grant of the Probate of the Will obtained in Judicial Miscellaneous Case No. 126 of 1961 in the Court of the learned District Delegate is liable to be revoked and the same was revoked by the judgment under appeal.

( 3 ) THE material facts of the case are that one Upendra Nath Maity, father of the original plaintiff, viz. Subodh Kumar Maity, died on 10. 01. 1960 leaving behind his wife, three sons including the plaintiff and a daughter. The wife of upendra Nath was Barada Sundari, and three sons were Subodh Kumar Maity, sasanka Sekhar Maity, Sudhir Kumar Maity and his daughter's only son, was amiya Kumar Mahapatra.

( 4 ) THE original plaintiff, viz. Subodh Kumar Maity, used to stay in Calcutta in connection with his work and his wife, sons and daughter used to stay at the paternal house of Subodh Kumar at Monoharchak. The said Subodh Kumar, since deceased, came to learn that the defendant No. 1, viz. Sasanka Sekhar, had obtained the Probate of a Will purported to have been executed by their father, viz. Upendra Nath, and, as a result of the said Probate, Sasanka was claiming a very large share of the property left by Upendra Nath. It was alleged that the said Will was forged and created after the death of Upendra Nath and by ante-dating the same and by acting in collusion with the others. Thereafter, a proceeding was initiated, being Miscellaneous Case No. 126 of 1961 in the court of the learned District Delegate and, in the said proceeding, it was contended that the Probate was obtained without impleading all the heirs of deceased Upendra Nath to the said Probate proceeding and by not serving any notice on the heirs of the deceased Upendra Nath. As such, subsequently Subodh kumar, since deceased, filed a suit for revocation of the Probate granted previously.

( 5 ) THE learned Judge, upon a contested hearing, was pleased to allow the prayer for revocation as stated above. On such suit being filed, the learned judge framed the following issues: "1. Is the suit maintainable in its present form? 2. Is the suit barred by limitation? 3. Was the Probate obtained earlier fraudulently? Is the same liable to be revoked? 4. Is the petitioner entitled to get a decree for revocation of the grant of the Probate? 5. To what relief is the petitioner (plaintiff) entitled?"

( 6 ) IN assailing the said judgment under appeal, the learned Counsel for the appellant, Sasanka Sekhar, has raised various factual contentions, which are noted below.

( 7 ) THE first contention was that the application for revocation was filed very belatedly by Subodh on 05. 06. 1978, whereas the Probate was granted in the year 1963.

( 8 ) APART from that, it was contended that under the will, which was probated, sufficient properties were given in favour of Subodh and he has no reason to feel aggrieved. If there had been no Will, then the objector will get 1/5th portion of the share of the properties left by Upendra. But, under the Will, he has got 173rd shares in respect of all the properties of Upendra save and except the residential premises left by Upendra.

( 9 ) IT was also contended that under the Will dated 01. 11. 1959, late Upendra, the testator, dedicated his bedroom in the residential house at Monohorchak in the memory of his father, late Madhav Chandra Maity, describing the same as "madhav Memorial Pathagar". This was done with a view to providing s