JUDGMENT

The petitioner in P & SC 61/2010 on the file of the II Additional District and Sessions Judge, Tumakuru, has filed this appeal challenging an order dated 13.01.2012 passed therein by which, his petition to revoke the probate granted in P & SC No.53/2008, was rejected.

2. The respondent herein sought for a probate of a Will dated 28.04.2008 allegedly executed by Smt. Lakshmidevamma in P & SC No.53/2008 before the II Additional District Judge, Tumakuru (henceforth referred to as 'District Court'). The respondent claimed that the property bequeathed belonged to Smt. Lakshmidevamma, she having inherited it as her share in terms of a partition deed dated 06.02.1968. He claimed that Smt. Lakshmidevamma had a son named, Gopalaraju and a daughter named, Lakshmi Narasamma. The respondent claimed that while Gopalaraju was a permanent resident of Bengaluru and employed in a private company, he was the son of Smt. Lakhminarasamma and the grandson of Smt. Lakshmidevamma. He claimed that he was residing with Smt. Lakshmidevamma and was looking after her and therefore, out of love and affection, she while in a sound disposing state of mind, bequeathed her property to him in terms of a Will dated 28.04.2008 in the presence of the attesting witnesses. He therefore, claimed that he was entitled to a probate of the Will.

3. The District Court published a notice of the probate in the local newspaper. However, none appeared and contested the proceedings. The respondent herein was examined as PW.1 and he marked Exs.P1 to P5, while an attesting witness was examined as PW.2.

4. Based on the oral and documentary evidence, the District Court held that in view of the evidence of PW.2, Smt. Lakshmidevamma had validly executed the Will at Ex.P1 in the presence of witnesses and therefore, passed an order granting probate in favour of the respondent herein in terms of the order dated 09.04.2009.

5. The appellant herein claimed that after the death of Smt. Lakshmidevamma, he succeeded to her property and applied for change of khata, at which point, the respondent objected claiming that Smt. Lakshmidevamma had executed a Will in his favour and that he had obtained a probate in P & SC No.53/2008. He alleged that Smt. Lakshmidevamma had never executed any Will, much less, the one propounded by the respondent. He contended that the respondent, who knew fully well that the petitioner was the natural legal heir of Smt. Lakshmidevamma, did not array him as the respondent in P & SC No.53/2008. He contended that the publication of the notice in P & SC No.53/2008 was not taken out in the recognized newspaper and therefore, he had no notice of the petition filed by the respondent for grant of probate. Therefore, he contended that he being an interested person to deny the lawful execution of the Will of Smt. Lakshmidevamma, was entitled to be heard and therefore, the probate granted in favour of the respondent was liable to be set aside.

6. The learned counsel for the appellant reiterated the aforesaid contentions and submitted that the respondent knowing fully well that the appellant was a person interested in the property of the deceased - Smt. Lakshmidevamma, deliberately did not array him as a party to the petition in P & SC No.53/2008. Therefore, he contends that the probate granted in P & SC No.53/2008 deserves to be revoked. In support of his contentions, he relied upon the following judgments:-

i) Basanti Devi vs. Ravi Prakash Ram Prasad Jaiswal [(2008) 1 SCC 267];

ii) Ishwardeo Narain Singh vs. Smt. Kamta Devi and others [AIR 1954 SC 280];

iii) Chiranjilal Shrilal Goenka (Deceased) through LRs. vs. Jasjit Singh and others [(1993) 2 SCC

507];

iv) Judgment of Coordinate Bench of this Court in MFA No.5819/2018, dated 28.04.2020;

v) Judgment of Coordinate Bench of this Court in MFA 200373/2016 dated 03.02.2020 vi) Manju Puri vs. Rajiv Singh Hanspal and others [(2020) 19 SCC 127]

7. The learned counsel for the respondent on the other hand contended that there was no