An application for revocation of Probate under Sec. 263 of the Indian Succession Act is maintainable even if the applicant failed to file a caveat and affidavit within the time allowed by law, provided the applicant is able to show just cause for the same.

1. This is an application under Sec. 263 of the Indian Succession Act for revoking the Probate granted on 24-8-1994 in O.P. No. 7/94 of the Will dated 3-1-1985 of the testatrix Sita Iyyappa widow of late Lt. Gen. A.C. Iyyappa, and for a direction to the petitioner to prove the Will in solemn form.

2. The applicant is one of the brothers in-law of the deceased. He was respondent No. 3 in O.P. No. 7/94, that O.P. having been filed on 4-11-1993. The applicant had been served with citation in that O.P. on 20-6-1994. A copy of the Will had also been sent to him by his brother Sri. A.C. Muthanna, senior advocate, even before the O.P. was instituted. The applicant had declined the request of his brother for filing an affidavit of consent in that O.P. In that O.P. the other respondents were A.C. Muthanna and his sister Mrs. M.T. Medappa. They have filed their affidavits of consent to the grant of probate. This Court on 24-8-94 granted Probate holding that the testatrix had executed a Will at Madras on 3-1-1985 in the presence of Sri. A.C. Muthanna and N. Shanker who had filed their affidavits regarding the due execution and attestation of the will, as they are the attestors of the will. The Court also took note of the fact that Mrs. Medappa had filed an affidavit of consent as one of the three heirs of the deceased under Sec. 15(1)(b) of the Hindu Succession Act, and service had also been completed on the third respondent, in the O.P. who is applicant herein.

3. The applicant filed a Caveat on 29-8-94 five days after the Probate was granted. Thereafter, Application No. 4911/94 was filed for stay of proceedings in O.P. No. 7/94. That application was supported by an affidavit of the counsel who appeared for the applicant Mr. P.J. George wherein he had averred that he had been instructed to file caveat, that he had received the Caveat as also the vakalat duly signed by his client before Probate was granted, that he had entrusted those papers to his clerk who thereafter fell ill and papers could not be filed in the Registry before 24-8-1994 and it was only on 29-8-94 when his clerk went to file Caveat that the counsel came to know that probate had already been granted. That application for stay of further proceedings in O.P. 7/94 was dismissed on 23-11-1994.

4. On 9-12-1994 this application was filed to revoke the Probate so granted on the ground that the document is not a genuine document and was not executed at Madras. The applicant has pointed out certain alleged errors in the Will describing some of the legatees as Mrs. even though they had not been married as on the date of execution of the Will which errors, according to the applicant, raise doubt regarding the genuineness of the Will. It is also the contention of the applicant that there were no electronic typewriters being used in India in the year 1985 and that the fact that the Will is typed with such an electronic typewriter, gives room for doubt regarding its genuineness. The further case is that the affidavit of assets does not include most of the moveable assets mentioned in the Will. The jurisdiction of the Court is also questioned on the ground that the property of the deceased was outside the jurisdiction of this Court except for two small fixed deposits of Rs. 2500/- each made in the name of the deceased in a company in Madras known as “Exrely Finance Limited” on 28-7-1993, about five days prior to the date of death of the deceased, and a date on which according to the applicant, the deceased was in Coma. The applicant has also alleged that the attestor to the Will who has also drafted the Will namely, his elder brother Sri. A.C. Muthanna was hostile and was supporting their sister Mrs. Medappa to the detriment of the applicant. According to the applicant, the contents of the Will are contrary to the desire of late Lt. Gen. A.C. Iyyappa, the husband of the deceased and the elder brother of the applicant. The applicant has stated that he “. naturally expected th