Srinivasan, J.@mdashThis appeal is directed against the order of the learned single Judge on the Original Side dismissing Application No. 5800 of
1991, which was one for revoking the probate granted in O.P. No. 621 of 1990 with reference to the Will dated 1.12.1989 said to have been
executed by one Saraswathi Ammal. The order under appeal suffers from two errors apparent on the face of the record. In paragraph 5 of the
order, the learned Judge has said,
Again, I see from the affidavit of the petitioner stating that he is a close relative of the deceased Saraswathi a word as vague and as vagueness
could possibly be.
This statement is clearly erroneous, in view of the fact that in the affidavit filed by the appellant herein, who was the petitioner before the learned
Judge, in support of the application for revocation of the probate, he has stated in paragraph 4 the relationship of parties with the deceased. No
doubt, in paragraph 3 therein the petitioner has stated that he is a close relative of the deceased Saraswathi as well as the alleged legatee Mr.
Kalaiselvam, the respondent herein. But in paragraph 4, the appellant has stated that his father Govindaswamy had three wives and Sareswathi and
her sister Jaya were the daughters of the first wife. Govindaswamy married a second wife by name Panchavaranam Ammal after the death of the
first wife. Through her he had four children by name Balakrishnan, Poongavanam, Kumari and Vijaya. The respondent Kalaichelvan is the son of
Balakrishnan. The affidavit has also stated that the said Govindaswamy married a third wife by name Pavunammal through whom he had three
children Saroja, Nagappan and Chinnaponnu. Nagappan is the appellant herein. In view of the fact that the relationship has been clearly set out in
paragraph 4, the learned Judge is wrong in stating that the averment in the affidavit of the appellant was vague. There is no justification for such a
statement.
2. No doubt, the respondent had filed a counter-affidavit disputing the status of the appellant herein. But that is a dispute which has to be decided
elsewhere. For the present, the question is whether the appellant has disclosed his relationship with the deceased Saraswathi. That, he has done
and the learned Judge is wrong in thinking that he has not done so.
2.1 The second error committed by the learned Judge arises as follows: The learned Judge says that it is well known that grant of probate does not
determine any title and any person challenging the title of the person to whom the probate is granted has ample scope to agitate it in a properly
constituted suit therefore in a competent Court. No doubt, the proposition of law is correct. But that has no relevance to the facts of the case. In
this proceeding, the appellant has challenged only the genuineness of the Will of Saraswathi. That, he is entitled to do as he claims to be a close
relative of Saraswathi. If his case is true, he will be a nearer relation than the respondent Kalaiselvan. No doubt, these are disputed questions of
fact.
3. Consequently, it follows that the order of the learned Judge under appeal is unsustainable. In the normal course, we would have set aside the
same and remanded the matter for fresh disposal. But having regard to the fact that the application for revocation is of the year 1991 and the
original proceeding for grant of probate in of the year 1990, we do not purpose to remit the matter for fresh disposal but we will proceed to
consider the merits of Application No. 5800 of 1991 on the basis of the records available.
4. That application has been filed under Sec. 263 of the Indian Succession Act. That Section provides for revocation or annulment of grant of
probate for just cause. Explanations (a) to (e) of the Section provides for a legal fiction as to when just cause shall be deemed to exist. It is not
necessary for us to consider that aspect of the matter in detail in this appeal. Suffice it to point out that under Explanation (a) if the proceedings to
obtain the grant was defective in substance and under Explanation (b) if the grant was obtained fraudulently by making a false suggestion or by
concealing from the Court something material to the case, it would be deemed to be just cause which enables the Court to revoke or annul the
probate.
5. In the original petition filed by the respondent for grant of probate, he has stated in paragraph 4 thereof that Palani Chettiar, husband of
Saraswathi pre-deceased her and she had not issued and ""as such, but for the will no other person is entitled to her share in the schedule
mentioned properties "" (underlying by us). This Statement contained in paragraph 4 of the Original Petition is obviously false. Even according to the
respondent, his father Balakrishnan lived at the time of the original Petition and he died only three months back. Balakrishnan is undoubtedly an heir
to Saraswathi and that too, a nearer heir. His sisters Poongavanam, Kumari and Vijaya will also be nearer heirs than the respondent. The
respondent ought to have disclosed their names in the petition and informed the Court that they are the nearer relatives and obtained the orders of
the court for issue of notice to them in ascertaining whether they contest the will or not. He did not do so. It may be that the respondent is disputing
the status of Pavunambal and her children Saroja, Nagappa (appellant herein) and Chinnaponnu, but he is not disputing the status of Balakrishanan
and his sisters. Hence he ought to have impleaded them as parties to the present proceeding particularly in view of the provision in the Original
Side Rules. Under O.25, Rule 4 of the Original Side Rules, an application for probate shall be made by a petition with the will annexed,
accompanied, if the will is not in English by an Official translation thereof in English and such application shall be in Form No. 55 or as near thereto
as the circumstances of the case may permit. The language is mandatory and the application ought to be in Form 55. Form 55 found in Appendix
II in Cl. 7 thereof, which was introduced by R.O.C. No. 3618-A/89 F1, reads a follows:
The petitioner has impleaded all the next of kin or other persons interested as party/respondents. There is no next of kin or other person interested
to be impleaded.
No doubt the form was amended only in 1991 but the Court was always insisting upon such impleading of nearer heirs. The petitioner was guilty of
not even disclosing the particulars of such persons. The petitioner ought to have impleaded his father Balakrishnan and his sisters as parties. The
appellant and his two sisters were undoubtedly interested parties to the Original Petition and notice should have been issued to them. Even if it can
be said that they cannot claim to be legal heirs unless they prove their status they were interested parties and they ought to have been made
respondents in the original petition.
6. Inasmuch as the respondent herein had made a false suggestion in the Original Petition by stating in paragraph 4 that but for the will no other
person was entitled to the property of Saraswathi and concealed from the Court, facts material to the case, viz., the existence of his father
Balakrishan and his three sisters as well as the claims of the appellant and his two sisters, the proceedings to obtain grant were defective in
substance as the necessary parties were not impleaded thereto.
7. It follows automatically that the grant of probate made in O.P. No. 621 of 1990 has to be revoked as there is a just cause therefore. The matter
really falls under Explanation (a) and (b). Hence we revoke the probate granted on 9-1-1991 in O.P. No. 621 of 1990. The Original Petition is
now restored to file. The respondent is directed to return the original probate to the Court on the original side on or before 12.12.1994. The same
shall be entrusted to the Registrar of this Court for safe custody. The respondent is permitted to implead Poongavanam, Kumari, Vijaya, Saroja,
Nagappan (Appellant herein) and Chinnaponnu and the three brothers of the respondent, viz., Elangovan, Ravi and Ramesh. Notice shall be issued
by the Registry to these parties and further proceedings shall go on in accordance with the rules. The appeal is partly allowed. No costs.
