Probate can be revoked if obtained fraudulently, but the applicant failed to provide evidence of fraud, leading to dismissal of the application.

ORDER

This instant application has been filed by the Trustee of the Trust to revoke the Will dated 26.06.1997 probated in O.P.No.792 of 1998 dated 29.04.2005.

2) Heard Mr.K.V.Babu, learned counsel appearing for Mr.H.Prosper, Learned counsel for the Applicant and Mr.G.Rajagopalan, learned Senior Counsel appearing on behalf of Mr. G.Gautam Ganesh, learned counsel for the first respondent.

3) Mr.K.V.Babu, learned counsel for the Applicant submits that one Mr.Sathrasala Venkataram who is the testator in the main OP, created a Public Charitable Trust in the name of “Satrasala Venkataraman Trust” through registered Trust deed dated 24.03.1997. He appointed 5 trustees including the applicant. The wife of the testator predeceased him and there were no issues for them. The testator filed a Civil suit in C.S.No.770 of 1997 on the file of this Hon'ble Court for declaration of Ownership and permanent injunction of the suit schedule property situated at Govindappa Naickken Street on the ground that the first defendant in the suit, who is the tenant of the testator had fraudulently induced the testator to execute Trust deed in the name of the lease deed. The testator died on 21.01.1998 and the legal representative who is the actual plaintiff was impleaded vide order dated 18.04.1998 in A.No.770 of 1998, claiming that he was appointed as executor under the Will dated 05.12.1997. The defendants were set exparte on 19.04.2006. In the meanwhile the probate was granted in favour of the first respondent herein on 29.04.2005. He submits that the first defendant in the suit filed two applications in A.No.3381 of 2006 to condone the delay and in A.No.3126 of 2006 to set aside the exparte order. Both the applications was dismissed on 03.07.2006 and the said suit was decreed in favour of the testator on 06.07.2006. He further submits that the first defendant in the suit and third party to the probate proceedings filed O.S.A.No.236 to 238 of 2006 as against the dismissal orders dated 03.07.2006 and the decree dated 06.07.2006. The O.S.A.Nos.236 to 238 of 2006 were dismissed by this Hon'ble Court on 02.09.2008 against which the first defendant preferred Special Leave Petition in S.L.P.(Civil)No.25807- 25810 of 2008. The said SLPs were dismissed on 07.11.2008. He further contends that the Review Petition No.53-56 of 2009 has been filed by the first defendant againt the said dismissal order of Apex Court and the same was dismissed on 05.02.2009.

4) He further submits that the petitioner in probate proceedings and the plaintiff in the suit filed execution petition in E.P.No.511 of 2008 in C.S.No.770 of 1997 wherein the first defendant filed an application in A.No.1213 of 2009 challenging the decree as nullity, non-est in the eyes of law and is incapable of execution. He submits that the executing court allowed the application on the ground that the decree for possession sought to be executed against the petitioner is considered as in-executable by its order dated 25.02.2011. The decree holder filed two applications in A.No.1469 of 2011 to set aside the dismissal order of Execution petition and A.No.1470 of 2011 to set aside the order dated 25.02.2011. Both the applications were allowed in order dated 17.07.2018 against which the judgment debtor preferred O.S.A.No.430 and 433 of 2018 and both the appeals were dismissed on 06.01.2020. He further submits that the judgement debtor filed S.L.P.Nos.9300-01 of 2020 and the same was also dismissed by the Hon'ble Apex Court. He contends that the first defendant filed three applications in A.Nos.172 to 174 of 2021 challenging the exparte order of delivery of possession vide order dated 26.10.2018 and to stay the same. The said applications were closed on 02.11.2023. He further submits that the first defendant filed an application in A.No.6778 of 2023 to grant extension of time to vacate and handover the premises and the same was dismissed on 20.12.2023.

5) He contends that the first defendant in the suit and third party