BHATTACHARYA, J

(1) This first appeal is at the instance of the applicants in a proceeding for revocation of grant of a Probate and is directed against order dated 23rd December, 2004 passed by the Additional District Judge, Fast Track Court-Ill, Alipore in O.S. No.2 of 2004 thereby rejecting the proceeding by holding that the petition for revocation was not maintainable.

(2) Being dissatisfied, the applicants have come up with the present appeal.

(3) The appellants, the heirs and legal representatives of one Atul Krishna Majhi, since deceased, filed an application for revocation of the Probate granted in Original Suit No. 96 of 1956 thereby giving rise to Revocation Case No.49 of 1982 on the allegation that before the grant of Probate, no citation was issued to the predecessor-in-interest of the appellants and that the alleged compromise was outcome of fraud, inasmuch as, their predecessor, namely, Atul Krishna Majhi, never put his signature on the alleged compromise petition. It was further contended that the testator had no testamentary capacity to execute the Will in question at the relevant point of time when he was more than 106 years old. According to the appellants, they filed a suit for partition being Title Suit No.177 of 1981 in the Second Court of Assistant District Judge, Alipore and in that partition suit, the respondents on 30th April, 1982 filed written statement mentioning about the grant of Probate of the Will of Nibaran Chandra Majhi through whom the parties claimed title and from that written statement, the appellants, for the first time, came to know about the alleged Will left by Nibaran Chandra Majhi and the Probate in question.

(4) The proceeding was contested by Nut Behari Majhi, the predecessor-in-interest of the present respondents, by filing written objection thereby denying the material allegations made in the application for revocation and it was contended that Nibaran Chandra Majhi executed the Will on 2nd December, 1946 which was his last testament and he executed the said Will with full testamentary capacity and the appellants had full knowledge of the Probate proceeding during the lifetime of Atul Krishna Majhi, their predecessor-in-interest, who died in 1978.

(5) During the pendency of the proceeding, Nut Behari Majhi, the original applicant for grant of Probate, having died, his heirs were substituted in the proceeding.

(6) After the framing of issues, the said proceeding for revocation was fixed for peremptory hearing on 11th June, 1986 when a petition was filed for calling for the record of Original Suit No.96 of 1956 and the same was allowed and consequently, records were called for. The peremptory hearing could not commence because of non receipt of the records of the original proceeding. On 13th February, 1987 vide Order No.29, the plaintiffs were directed to file certified copy of the relevant Probate granted in O.S. No.96 of 1956 and to swear an affidavit supporting the contention of their petition for calling for the record. As no such certified copy was filed nor was any affidavit given, the defendants of the proceeding were directed to produce Probate of the Will of Nibaran Chandra Majhi. On 28th August, 1988, the defendants filed the xerox copy of the Probate and from Order No.86 dated 30th January, 1996 it revealed that the record of O.S. No.96 of 1956 was not traceable. Subsequently, Nut Behari Majhi, the original defendant, having died his heirs were substituted.

(7) Ultimately, the proceeding was fixed for peremptory hearing on 9th August, 1999. On that day, the appellants filed an application praying for calling for the records and the plaintiffs were directed to file the judgment and decree of the relevant suit the records of which were proposed to be called for. It further appears from record that the Copying Department was unable to send the certified copy of the records as those were not traceable and it transpired from the index register of the District Record