The main legal point established is that the inclusion of necessary parties and disclosure of material facts are crucial in probate proceedings, and the provisions of the Hindu Succession Act play a significant role in determining succession.

JAYANT NATH, J.

1. This petition is filed under Section 263 of the Indian Succession Act for revocation of the probate that was granted to the respondent No.1 in Testament Case 46/2000 vide judgment dated 02.09.2003.

2. The facts of this case are that Sh.Himanshu Kumar Sen Gupta (Testator), the paternal uncle of the petitioner and step-brother of respondent No.1 died a bachelor without any Class I legal heir on 06.01.1997 at New Delhi. Late Sh.Himanshu Kumar Sen Gupta was the owner of property B-122, Chitaranjan Park, New Delhi. Sh.Himanshu Kumar Sen Gupta had one real brother namely, Shri Sudhanshu Kumar Sen Gupta who was born from the first marriage of his father Shri Suresh Chandra Sen Gupta. Respondent No.1 is the step-brother of Sh.Himanshu Kumar Sen Gupta being the son of late Shri Suresh Chandra Sen Gupta from his second marriage.

3. Respondent No.1 filed a Testament Case 46/2000 which was filed under Section 276 of the Indian Succession Act for grant of Letters of Administration with a Will annexed namely, Will dated 26.02.1995. The respondent No.1 pleaded that the deceased Sh.Himanshu Kumar Sen Gupta was a bachelor and that the respondent No.1 and the deceased are the only brothers and there are no other brothers or sisters of the deceased or of respondent No.1.

4. The petitioner who is the nephew of the testator Late Sh.Himanshu Kumar Sen Gupta and the son of his real brother has now filed the present petition stating that he was a necessary and proper party to the probate petition and has been wrongly and mischievously not impleaded as a party. It is pleaded that the petitioner was very close to the said testator Late Sh.Himanshu Kumar Sen Gupta. The petitioner resided with the testator in Delhi for a period of over 13 years since 1976 till the petitioner was posted to Kolkata. Respondent No.1 subsequently moved to Delhi and lived in Delhi when Sh.Himanshu Kumar Sen Gupta passed away. However, the bond between the petitioner and Sh.Himanshu Kumar Sen Gupta continued to be strong and that Sh.Himanshu Kumar Sen Gupta often told the petitioner and respondent No.1 that he intended to divide his assets jointly amongst his legal heirs. Hence, it is pleaded that the petitioner was a necessary and property party and has wrongly been not impleaded in the petition by respondent No.1 by making a false statement. Hence, it is stated that this court may revoke the order granting probate vide judgment dated 02.09.2003.

5. I have heard the learned counsel for the parties.

6. Learned counsel for the petitioner has reiterated that a false statement was deliberately been made in the probate petition by respondent No.1 stating that he is the only brother and real brother of late Sh.Himanshu Kumar Sen Gupta. She also relies upon the judgment of the Supreme Court in Manibhai Amaidas Patel and anr. V. Dayabhai Amaidas (2005) 12 SCC 154 and judgment of this court in Umesh Kumar Pushkarna & Anr. V. State (2015) 224 DLT (CN) 4 to contend that the petitioner was a necessary party to the said probate petition that he has been wrongly and deliberately not impleaded. She further pleads that a family settlement existed whereby the petitioner was also to get rights in the said property at Chitranjan Park, New Delhi and hence the petitioner was a necessary party to this petition.

7. Learned counsel appearing for the respondents has pointed out that under the Hindu Succession Act, the respondents fall under Entry II of Class II whereas the petitioner falls in Entry IV of Class II of the Schedule to the Hindu Succession Act. He submits that even if the Will had not been probated by this court, in view of the Hindu Succession Act, he would have been the sole heir of the estate of the testator late Sh.Himanshu Kumar Sen Gupta and would have in any case inherited the property at Chitaranjan Park. He further points out that Sh.Himanshu Kumar Sen Gupta died in 1997. The probate was granted to the petitioner in 2003. The petitioner has now in 2013 woke