A probate granted without citing parties who ought to have been cited is liable to be revoked.

JUDGMENT :

K rishna Rao, J.

1. The applicant, Ranadhir Bose had preferred the present application praying for revocation of probate granted in terms of the Will dated 6th February, 2013 of the deceased Ganesh Prasad Bose.

2. Mr. Jishnu Chowdhury, Learned Senior Advocate with Mr. Aritra Basu, learned Advocate representing the applicant submits that Prabodh Chandra Bose and Bivabati Bose had three sons namely Sushil Kumar Bose, Ganesh Prasad Bose and Jagannath Bose, now all are deceased. The applicant is the son of Sushil Kumar Bose. The deceased Ganesh Prasad Bose had a distant cousin, namely Sefalika Dey, who had three sons and three daughters out of which the respondents are the two sons.

3. In the month of April, 2016, the applicant received a telephone call from the State Bank of India and accordingly the applicant visited the bank wherein it was informed to the applicant that the deceased had shown the applicant as heir of the deceased. From the documents of the bank, the applicant also came to know that the deceased had executed a Will bequeathing his property to the State Bank of India subject to the mortgage being the landlord. In the said Will, it was also made clear that if mortgage would be cleared, State Bank of India would not receive the property. The applicant had informed the bank that the applicant would pay back the loan and redeem the mortgage within a reasonable time and State Bank of India had agreed for the same. The applicant had received a notice under Section 13(2) of the SARFAESI Act, and accordingly the applicant had sent the reply to the said notice and subsequently when the applicant approached the bank for settlement, the applicant came to know that the dues has already been paid.

4. Mr. Chowdhury with Mr. Basu submit that on enquiry, the applicant came to know that this Court has granted probate to the respondents. Mr. Basu submits that the respondents have obtained probate by fraud as the respondents have not disclosed the name of the applicant as heir of the deceased in the probate application and no citations were also issued.

5. Mr. Chowdhury with Mr. Basu submit that the applicant is the Class II legal heir of the deceased and the respondents had the knowledge about the relationship of the applicant with the deceased but the respondents by suppressing the material fact have obtained probate as the applicant could not get an opportunity to lodge caveat.

6. Mr. Chowdhury with Mr. Basu in support of his case has relied upon the following decisions:

a. (2008)10 SCC 489 (G. Gopal –vs- C. Baskar and Others).

b. (2008)1 SCC 267 (Basanti Devi -vs- Ravi Prakash Ram Prasad Jaiswal).

c. 2015 SCC Online Cal 590 (Smt. Kalyani Maite and Anr. –vs- Shri Shridam Maite).

7. Mr. Anirban Ray, Learned Senior Advocate representing the respondents submits that the applicant does not have any caveatable interest and as such the applicant cannot claim for revocation of the probate granted by this Court in terms of the Will dated 6th February, 2013.

8. Mr. Ray submits that the respondents are the sons of the sister of the deceased and during the lifetime, the deceased had executed a Will by appointing the respondents as executors of his last Will and Testament dated 6th February, 2013.

9. Mr. Ray submits that the applicant relied upon the documents of the bank and from the said documents, it is evident that both the respondents were described as nephew of the deceased.

10. Mr. Ray submits that the respondents have proved the Will before this Court wherein the attesting witness of the Will namely Biswarup Samanta had filed his affidavit stating that the deceased had executed the Will in his presence as well as in the presence of another attesting witness namely Arup Kumar Mukherjee while possessing sound mind, good memory and full testamentary capacity.

11. Mr. Ray submits that the applicant was aware of the Will and the grant of probate and has waited till the payment is made by the respondents to the State Bank of India to the exte