PINAKI CHANDRA GHOSE, J.

This appeal is directed against a judgment and/or order dated 10th October, 2002 passed by the Honble Single Judge revoking a grant of Probate issued by the Court on 10th February, 1987. The said order was passed on an application filed by the respondent No.1 Jyotsana Rajgarhia.

The facts of the case briefly are as follows:

On 28th December, 1973 one Anirudha Kr. Himatsingka published a Will bequeathing his all property to his wife Usha Himatsingka. Mr. Bhagwati Prasad Himatsingka was appointed as an Executor under the said Will. On 13th April, 1974 Anirudha Kr.

Himatsingka died leaving behind his two daughters namely Anita and Jyotsana and the widow Usha Himatsingka. On 17th September, 1981 he said Usha Himatsingka published her last Will. The said Will was witnessed and attested by her daughter, Anita Fatehpuria and Shyama Poddar, Advocate. On 3rd October, 1981 Usha Himatsingka, died. Usha, by her said Will bequeathed all her properties in favour of Dipak Kumar Himatsingka. Dipak Kumar Himatsingka was appointed as an Executor under the said Will. On 13th November, 1985 Anita Fatehpuria wrote a letter in her handwriting to Bhagwati Prasad Himatsingka forwarding a sealed envelope and stated that the said sealed envelope was left behind by her mother Usha Himatsingka, since deceased with an express instruction to deliver the same to Bhagwati Prasad Himatsingka. It appears that the said envelope contained the Will in question.

On 15th January, 1987 an application for grant of probate of the Will of Usha Himatsingka, since deceased was filed before this Court supported by an affidavit of Shyama Poddar, one of the attesting witnesses and two separate Vakalatnamas were filed on behalf of Jyotsana Rajgarhia and Anita Fatehpuria in favour of Mr. Pulak Lahiri, Advocate. The said Mr. Pulak Lahiri on behalf of his clients endorsed consent on behalf of his client on the Probate application. On 21st January, 1987 Probate petition was filed in Court. On 23rd January, 1987 an order dispensing the citation was made on the strength of the consent given in the proceeding. On 10th February, 1987 Probate was granted by the Court since the Probate was not contested by any of the parties.

Usha Himatsingka, since deceased used to reside at 19B, Mandeville Gardens, Kolkata till her death. It appears that the said flat was sold after her death and proceeds of the said sale were neither claimed nor received by the daughters and no objection was also raised by them. It further appears that the Will published by the husband of Usha, Anirudha Kr. Himatsingka, since deceased, was also probated such order so passed on 26th September, 1995.

On 1st June, 1991 Prabhudayal Himatsingka was died and on 9th April, 1997 Bhagawati Prasad Himatsingka was died.

“After the death of Bhagawati Prasad Himatsingka, Dipak Kumar Himatsingka, the appellant herein wrote a letter on 7th November, 1997 to Curewell India Limited (hereinafter referred to as ‘the said company’) seeking particulars of shares of Late Anirudha Kumar Himatsingka in the said company. On 28th May, 1998 Dipak Kumar Himatsingka sent a reminder to the said company and the company by its letter dated 2nd June, 1998 requested Dipak Kumar Himatsingka to submit a copy of the Will of Anirudha Kumar Himatsingka, since deceased. The copies of the Probate of the Will of Anirudha Kumar Himatsingka, since deceased and Usha Himatsingka, since deceased were forwarded to the company on 17th June, 1998. On 30th June, 1998 the company furnished the particulars of shares of Anirudha Kumar Himatsingka, since deceased to Dipak Kumar Himatsingka. On 30th October, 1998 Dipak Kumar Himatsingka filed a suit being C.S. No. 450 of 1998 against Rakesh Himatsingka.

It appears that after the grant of such Probate in the year 1987 (Usha’s Will) Jyotsana Rajgarhia and Anita Fatehpuria executed a Vokalatnama in favour of Anirudha Garodia and thereafter on 15th October, 1999 the present applicatio