The dismissal of an application for grant of probate for default does not bar a fresh application for probate of the same Will.

Sanjib Banerjee, J.

1. The wife of the alleged testator has applied for dismissal of the probate proceedings on the ground that the application for grant of probate is barred by the principles of res judicata. The propounder has died during the pendency of the application but the beneficiaries under the alleged will resist the untimely challenge. Some of the beneficiaries have also applied for conversion of the application for grant of probate to one for the grant of letters of administration in their favour.

2. The alleged testator died on June 19, 1995. The propounder, now deceased, instituted proceedings under section 276 of the Indian Succession Act before the District Delegate at Alipore seeking to assert an alleged Will of June 6, 1995. The propounder was appointed administrator pendente lite by an order of September 13, 1995 in Probate Case No.279 of 1995. The applicant herein objected to the grant whereupon the matter was set down as a contentious cause and renumbered as OS 10 of 1996,

It appears from the extract of the order sheet relating to such deemed suit that on March 6, 2002 the plaintiff was unrepresented when the matter was taken up whereupon the plaintiff was directed to show cause by April 30, 2002 as to why the suit should not be dismissed. By Order No. 25 of April 30, 2002 the suit was dismissed for default. The propounder filed Misc. Case No. 200 of 2002 for restoration of the proceedings. The order sheet shows that the matter was deferred repeatedly as the propounder had either not taken any steps or sought an adjournment. The propounder ultimately applied for dismissal of the restoration application and Misc. Case 200 of 2002 was dismissed for non-prosecution by an order of November 1, 2006.

3. IN between, on December 20.1999 the applicant herein applied for grant of letters of administration in respect of the estate of the deceased and obtained the grant on August 9, 2002. The application was made during the pendency of the probate proceedings but the grant was obtained after the probate proceedings had been dismissed for default. An application for revocation of such grant, filed by the executor under the alleged Will, is pending,

4. IN February, 2007 the propounder applied before this Court, by way of FLA No. 21 of 2007 for grant of probate in respect of the alleged Will of June 6, 1995 on the basis of a copy thereof. It was averred at paragraph 2 of the application for probate that the original Will was in the custody of the District Delegate at Alipore. The propounder claimed that the alleged testator had apparently disinherited his widow. The propounder alleged that the alleged testator had married the applicant herein when he was 66. The application for grant of probate detailed the previous probate proceedings and the withdrawal of the application for restoring the earlier proceedings after it had been dismissed.

The applicant has been cited and she has filed her affidavit which is to be regarded as written statement as the matter has been set down as a contentious cause. Directions for discovery and inspection have also been given in September, 2008.

5. The applicant says that upon the earlier proceedings being dismissed and the restoration application being abandoned, the same Will could not have been subsequently propounded. The applicant relies on the provisions of Order IX Rule 9 of the Code of Civil Procedure and says that where the defendant appears and the plaintiff does not appear when the suit is called for hearing and consequent whereupon the suit is dismissed, the plaintiff is precluded from bringing a fresh suit in respect of the same cause of action. The applicant says that the only course open to a plaintiff upon a dismissal under Order IX Rule 8 of the Code is to apply for setting aside the order of dismissal. Since that was the procedure adopted by the propounder and the application for restoration was subsequently abandoned, the applicant, argues, there was no room for a