Probate can be revoked if notice is not served to all legal heirs, and such applications are not barred by limitation if the heirs gained knowledge through collateral proceedings.

JUDGMENT :

DEBANGSU BASAK, J.

1. The appeal is filed at the behest of the persons claiming to be the heirs and legal representatives of the deceased Gouriprova Sen. Gouriprova Sen expired on October 8, 1989.

2. The respondent herein applied for grant of probate of the Will of Gouriprova Sen, since deceased dated July 9, 1989.

3. Probate of the Will was granted on September 28, 1995. Application for revocation of the grant of probate of the Will was filed sometime in the month of July, 2022.

4. By the impugned judgment and order, learned single Judge dismissed the application for revocation of the grant of probate after returning primarily two findings. One finding is that, the appellants before us are not the heirs and legal representatives of deceased Gouriprova Sen and other finding is that, the application for revocation of grant of probate is barred by limitation.

5. Learned senior advocate appearing for the appellants draws the attention of the Court to the genealogical table. He submits that, Gouriprova Sen since deceased was married to Amulya Charan Sen since deceased. Gouriprova Sen and Amulya Charan Sen expired, without leaving behind any surviving children.

6. Learned senior advocate appearing for the appellants submits that Amulya Charan Sen, husband of Gouriprova Sen, was the son of Bidhu Bhusan Sen. Bidhu Bhusan Sen was the son of Ramkamal Sen. There were two sons of Ramkamal Sen, namely, Bidhu Bhusan Sen and Sashi Bhusan Sen. There were two sons of Sashi Bhusan Sen, namely, Jatindra Nath Sen and Sachindra Nath Sen. Jatindra Nath Sen expired unmarried. There were two sons of Sachindra Nath Sen, namely, Sanka Prasad Sen and Aswini Sen. There was a son and a daughter of Aswini Sen, namely, Nilanjana and Abirban.

7. Learned senior advocate appearing for the appellants points out that, the appellants are the daughter and the son of Aswini Sen and Sanka Prasad Sen is the son of Sachindra Nath Sen. He contends that, since Amulya Charan Sen died without any issue on intestacy, the estate of Gouriprova Sen will devolve upon the heirs and legal representatives of Sashi Bhusan Sen, since deceased. The appellants stressed upon their title through Sashi Bhusan Sen, since deceased.

8. Learned senior advocate appearing for the appellants submits that since, admittedly, notice of the probate proceeding was not served upon any of the appellants, the issue of limitation does not arise. He contends that, the grant of probate, therefore, should be set aside with liberty be granted to the appellants to contest the probate in accordance with law.

9. Learned advocate appearing for the respondent submits that, the appellants were well aware of the probate proceeding. He draws the attention of the Court to the averments made in the application for revocation of the grant of probate. He submits that, in a collateral proceeding, the appellants were made aware of the grant of probate. Thus, despite the appellants being aware of the grant of probate, they did not take any steps within the period of three years from the date of knowledge of the grant of probate. He points out that in respect of one of the immovable properties of the estate of the deceased Gouriprova Sen, mutation proceeding occurred in which, the factum of grant of probate was discussed.

10. Learned advocate appearing for the respondent relies upon (2008) 8 Supreme Court Cases 463 ( (Kunvarjeet Singh Khandpur - Vs- Kirandeep Kaur a