Voluntarily relinquishing the right to contest the probate of a Will precludes the party from raising further challenges to the grant of probate.

Sanjib Banerjee, J.

This appeal and the considerable time spent in court over it, it must be confessed bluntly, is as a result of the mess created by the court in the two orders that have been cited by the appellants to claim an undeserving benefit. The matter pertains to a Will and before the facts are noticed and any attempt is made to extricate the matter from the mess, the practice in this court or how the jurisdiction in this field is exercised here needs to be narrated in brief.

2. Upon a petition for the grant of probate or for the issuance of letters of administration with Will being received, there is an initial scrutiny which is conducted by the department. This exercise involves the careful checking of the papers and the averments in the petition, to ascertain whether at least one attesting witness' affidavit-in-support is presented by the propounder, whether the affidavit of assets tallies with the contents of the petition and the bequests in the Will and the like. After the scrutiny and the resultant corrections, if any, the matter is placed before the judge taking interlocutory matters in the judge's chambers for an initial direction for service of citations - general and special. In cases where all the heirs of the testator consent to the grant, the special citations may be dispensed with and the matter may immediately progress to the grant. A grant in such manner, where the formal proof of the execution of the Will by way of oral evidence is not insisted upon, is regarded as a grant in common form.

3. However, there is no binding rule that a grant must be made in common form even in situations where all the possible heirs consent to the grant; for the judge may still require the Will to be proved in solemn form notwithstanding the propounder appending consent affidavits of the other heirs and the supporting affidavit of at least one attesting witness.

4. As to the objection to a grant, a caveat may be lodged without even there being any petition for grant of probate or a caveat may be lodged before the receipt of the citation by a person interested in the estate of a deceased, where, upon the petition for probate (or for issuance of letters of administration with Will) being lodged and an intimation in such regard being received by the caveator, an affidavit in support of the caveat needs to be filed within a specified time. Whenever there is an objection, the matter partakes the character of a contentious cause, particularly upon an affidavit in support of the caveat being filed. In the resultant testamentary suit, the petition for the grant of probate (or the issuance of letters of administration with Will) is treated as the plaint and the affidavit in support of the caveat as the written statement. In such a situation a fullfledged trial follows, where the primary - and perhaps, the only - consideration is whether the Will was executed in accordance with law by the alleged testator upon such person being in a fit state of mind and health to execute the document.

5. It is not as if when a matter of grant is not contested or is non-contentious, so to say, that the court (read, the interlocutory judge) does not apply its mind. But the general practice is that if all the heirs of the alleged testator consent to the grant or do not object thereto, the grant is made upon the court noticing due compliance with the formalities, without the court requiring formal proof of the execution of the Will. This is because under section 263 of the Succession Act, 1925, any person interested in the estate of the alleged testator, if aggrieved by the grant, is entitled to apply and obtain revocation thereof. It is the further practice in this court, as noticed and recognised in the judgment reported at (2017) 1 CHN (Cal) 106 [In the goods of: Nand Bherumal Advani Alias Nandu Advani (deceased)], that when an application for revocation is received, the court, upon prima facie satisfaction of any ground of revocation having b