The main legal point established is that a party who has allowed probate proceedings to conclude without raising objections cannot subsequently seek to revoke the probate based on alleged suspicious circumstances.

R. BANUMATHI, J.

1. Being aggrieved by the dismissal of the application in A.No.5349 of 2008 in O.P.No.875 of 2006 declining to revoke the Probate granted on 17.3.2008 in O.P.No.875 of 2006, appellant has preferred this appeal.

2. O.P.No.875 of 2006 relates to grant of Probate in respect of the last will and testament of deceased Dr.S.V.Rajalakshmi. The testatrix S.V.Rajalakshmi died on 18.1.2004 and was a spinster in her life time and she did not leave behind any Class I heirs. The deceased was survived only by Class II legal heirs. The parties are related to testatrix Dr.S.V.Rajalakshmi as under:

S.R.Venkataraman

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S.V.HemavathiDr.S.V.Rajalakshmi S.V.Ramakrishna

predeceased testatrixtestatrix (Appellant)

P.R.Chandran(died on 18.1.2004)

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P.R.SethuramanP.R.Ramanathan P.R.Venkataraman P.Narayani (R1) (R2) (R3) (R4)

3. The 1st respondent filed O.P.No.875 of 2006 for grant of Probate in respect of the last Will and testament of deceased S.V.Rajalakshmi duly executed by her on 21.1.1994. It was stated that the testatrix executed the Will in the presence of witnesses N.Gunaseelan and D.Sundaramoorthy and the Will was registered on 21.1.1994 as a document No.5 of 1994 in the Sub-Registrar's Office, Adayar. In the said Will, the 1st respondent was appointed as the executor. In his capacity as sole executor appointed under the Will, the 1st respondent filed O.P.No.875 of 2006 for grant of Probate. In the said Probate, respondents 2 to 4 as well as the appellant were shown as the respondents. None of them have filed caveat or affidavit of objections in the probate proceedings. After recording evidence before the Master, O.P. was posted before the single Judge on 17.3.2008 and by the Order dated 17.3.2008, single Judge ordered grant of Probate in respect of the last will and testament of S.V.Rajalakshmi.

4. The appellant filed A.No.5349 of 2008 for revocation of the Probate granted in O.P.No.875 of 2006. In the application, the appellant has averred that the first attesting witness viz., Gunaseelan was incompetent to be witness and attest the Will as he was a minor at the time of execution of the Will and therefore execution of the Will is doubtful since the Will does not specify the legal requirement of attestation of the Will as required by law. It was further alleged that the Will has not been executed by S.V.Rajalakshmi voluntarily and on her own volition and therefore the appellant prayed for revocation of grant of Probate. The appellant has alleged that he has obtained birth certificate of the attesting witnesses and had also collected documents to show that the first attesting witness was only a minor and therefore he was unable to file affidavit of objections along with Caveat in the Probate proceedings and hence filed the application praying revoke grant of Probate.

5. Resisting the application, the 1st respondent has filed a detailed counter affidavit stating that the Will dated 21.1.1994 has been made voluntarily. It is further averred that the appellant having failed to file any caveat with objections within the time stipulated by law it is not open to the appellant to file application to revoke the Probate at very late stage.

6. Upon considering the contentions, by the impugned order, the learned single Judge held that P.W.2 was aged 30 years at the time of deposing in the Court in November 2006 and that he had spoken about the execution of the Will in his presence. Pointing out that the testatrix was a Doctor by profession and after executing the Will on 21.1.1994, she died only on 18.1.2004 nearly after a period of ten years, the learned Judge held that after waiting for a period of nearly one year from the date of grant of Probate the application cannot be brought under Section 263 of the Indian Succession Act and on those findings dismissed the Applicati