A legatee, whose interest under a Will has been considerably cut down by an alleged Will, said to have been subsequently executed by the testator revoking the earlier one, has locus standi to apply for the revocation of the probate of the later Will on the ground of non-service of citation, even before he has obtained probate of the earlier Will.

SRINIVASAN, J.

1. This Appeal is filed by the petitioner in O.P. No. 689 of 1991 in whose favour, a probate was granted in the said Original Petition on 25-2-1992. The respondent herein filed Application No. 3534 of 1993 for revocation of the said probate and the Application has been allowed by the learned single judge by order dated 27-9-1993. This Appeal is against the said order.

2. The main contention urged by learned counsel for the appellant is that the respondent does not have any cavetable interest as he is claiming only under a will which is not probated. It is pointed out by learned counsel for the appellant that no person can claim in a court of law that he is a legatee or an executor unless the Will is probated, where the Will requires probate by virtue of the provisions of the Indian Succession Act. The respondent is claiming under a Will dated 9-4-1989 said to have been executed by A.K. Ranganatha Rao, brother of the respondents paternal grand mother Sakkubai. On the other hand, the said Sakkubai is the maternal grandmother of the appellant. The appellant also claims that he is an adopted son of the said Ranganatha Rao, who died on 7-10-91. According to the appellant, the said Ranganatha Rao left a Will dated 9-5-1991 which was a registered one.

3. The appellant filed the Original Petition for probate on 9-12-91 Along with the petition, affidavit, of both the attesting witnesses and consent affidavits of three of the sisters of late Ranganatha Rao, besides the consent affidavit of the daughters of the two diseased sisters of Ranganatha Rao were also filed. Notice was issued to the father of the respondent by name Ramachandra Rao on 24-1-92. He did not, however, file any caveat petition. On 4-2-92, the respondent filed a suit O.S. No. 246 of 1992 on the file of District Munsif, Trichy, for declaring his right as a legatee under the Will of the deceased Ranganatha Rao dated 9-4-89 and for consequential reliefs. The appellant was a party to the said suit. The appellant was served with a notice in the Interlocutory Application for injunction that is I.A. No. 173 of 1992. The appellant filed a counter affidavit in the said Application on 16-2-92 disputing the genuineness of the said Will. The appellant also filed a written statement on the same day in that suit.

4. But, without disclosing either the pendency of the suit in O.S. No. 246 of 1992 or the claim made by the respondent in the said suit, the appellant obtained an order for probate on 25.2.92 in the Original Petition. A petition for revocation of the said probate was filed in. Application No. 281 of 1993 by the father of the respondent. That petition was dismissed on 22-7-93. The respondent had filed Application No. 3534 of 1993 on 5-7-93 for revocation of the probate. That application was ordered on 27-9-93 as stated by us earlier.

5. It is not necessary for us to refer to the other facts. It is sufficient to point out that the appellant had not disclosed the fact that the respondent was claiming as legatee under a Will of 1989, said to have been executed by Ranganatha Rao before getting probate from this court. The learned judge has taken the view that there is just cause within the meaning of Section 263 of the Indian Succession Act for revoking the grant made in favour of the appellant in as much as he has omitted to disclose the material facts or issued notice in the original petition to the respondent herein.

6. It must also be pointed out that the appellant has not complied with the requirements of Order 25 Rule 3 of the Original Side Rules as the Rule prescribed there under contains a provision to set out all the near relations of the deceased.

7. It is the contention of the appellant that so long as the respondent had not obtained probata of the Will under which the respondent claims as a legatee, there was no necessity whatever for the appellant to have disclosed the claim of the respondent or issue notice to him. In short, the contention of