Court cannot ignore non-service of notice.

Mishra, J.:

A learned single Judge of this Court has allowed an application for revocation the probate in O.P.No.15 of 1982 granted in favour of the appellant. Hence the appeal Clause 15 of the Letters Patent of this Court.

2. One S.T.Subbaraya Mudaliar who died on 23rd August, 1978, executed a will with to his properties including a property at Mallan Pon-nappa Mudali Street, Triplicane city of Madras. This property, according to the respondent herein, belonged to one Mudaliar who had four sons, Manicka Mudaliar, Thanga-velu Mudaliar, Kuppuswamy Mudaliar, Kamatchi Mudaliar. Manicka Mudaliar died leaving behind his only son Loganatha Mudaliar. Thangavelu Mudaliar died leaving behind Doraisami Mudaliar. Kuppuswami Mudaliar died leaving the respondent herein and Kamatchi Mudaliar died without any.

3. Loganatha Mudaliar died leaving his only son Arumugha Mudaliar. Arumugha filed a suit for partition of his share in the joint family property. It had so happened that the property in Triplicane had been purchased by Subbaraya Mudaliar in Court Arumugha attacked the court auction purchase and obtained a preliminary decree aside the court auction sale and directing Subbaraya Mudaliar to pay a sum of Rs.3,092. was alleged that Subbaraya Mudaliar paid the amount. He however died leaving his sons and six daughters, one daughter pre-deceasing him. Subbaraya Mudaliar possession of the property in May, 1981. The respondent herein, it is claimed, purchased 1/8th share in the property from one of the daughters of Subbaraya Mudaliar, Raieswari, for a consideration of Rs.4,000 and another l/8th share for a consideration Rs.3,000 from the legal heirs of Indirani. He filed a suit in O.S.No.906 of 1980 on the City Civil Court, Madras, for partition and separate possession of 1/4th share property. He however came to know in the said proceeding that a will was probated 12. 1982. Alleging that the appellant herein was well aware of the fact that respondent) had purchased 1/4th share in the property and that he was deliberately cited as one of the persons interested in the property by the appellant herein application for grant of probate the respondent herein moved the court for revocation probate.

4. In this application, the respondent stated that Rajeswari, daughter of Subbaraya and the husband of Indirani for himself and on behalf of his minor son transferred Rajeswari ’ s l/8th share in the property bearing door No.75, Mallan Ponnappa Mudali for a consideration of Rs.4,000 on 12. 1979 and Indirani’s 1/8th share in the property 212. 1979 for a sum of Rs.3,000. He thereafter filed the suit in O.S.No.906 of 1980 file of the IX Assistant Judge, City Civil Court, Madras, for partition and separate possession. He impleaded all the heirs of Subbaraya Mudaliar as defendants. They took the defence their father had executed a will and that application for grant of probate had already filed by the appellant herein. It is then stated in the petition:

“The said suit came upon list for trial on 112. 1982 and the examination of the applicant was over on 112. 1982. is only on that day, suddenly without notice a probated will was sought to be marked suit. It is only at that time I came to know that a will in respect of the premises Mallan Ponnappa Mudali Street was probated by this Hon’ble Court ex parte in the O.P. on 12. 1982”

...It is noteworthy to mention here that the heirs of the late Subbaraya Mudaliar who derive benefit from the alleged will said to have been executed Subbaraya Mudaliar have not whispered even in all proceedings regarding the probate will....The very same counsel who is conducting case for the heirs of Subbaraya Mudaliar the counsel who filed the above O.P. for probate and who is aware of that I have purchased the substantial portion of the property covered in the alleged will said to have executed. The petitioner Ponnuswamy Mudaliar and also the heirs of the late Subbaraya Mudaliar are all quite alive to the fact that I