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(I) AIR 1949 Cal 462.

(II) AIR 1930 Bombay 370. (III) ILR 20 All 109 and (IV) 15 CLJ 305.

13. Therefore, the order passed by me should be recalled, as there is no use to maintain the order on an infructuous and/or a dead proceeding so to say.

14. Mr. P.K.Mulllck, learned senior advocate while opposing the application contends that it is an absurd proposition that once the grant of probate is revoked on any ground the probate proceeding will come to end. He contends that If the grant of probate is revoked then probate proceeding has to be heard de-novo. There is no order recording cancellation of the Will nor there is any order of dismissal of the probate proceeding. In support of his submission he has relied on two decisions and .

17. Having heard respective contentions and submissions it appears to me since Mr. Mullick has submitted that his client docs not want to press the application for recalling the order of Justice A. K. Sengupta I am bound to examine the application made by Mr. Gour Roychowdhury's client supported by Mr. Das's client. The aforesaid two orders were passed at a certain point of time when neither the client of Mr. Gour Roychowdhury nor the client of Mr. P.K. Das was party to the proceedings so to say. Order Issuing citation or reviving the probate proceeding should not affect or prejudice any party ordinarily but in this case there are some rights by passage of time have been created in favour of Mr. Das's client and Mr. Roychowdhury's client as well. Though they are not technically parties to the probate proceedings, their cases are to be considered and decided. Admittedly, my aforesaid two orders were passed ex-parte as no notice was served nor could be served upon Mr. Roychowdhury's client.

18. Mr. Das contends since by virtue of order of Justice A.K. Sengupta the probate proceeding itself has been perished and this is a clinching issue in this matter that order passed by Justice A.K. Sengupta brought all the controversies to an end so far as the probate proceeding is concerned.

19. I have examined all decisions cited by Mr. Das. I am unable to accept the proposition laid down by the aforesaid decisions. The language and wording of sections 261 and 263 of the Indian Succession Act, 1925 is absolutely clear to hold that only grant is revoked but probate proceeding is not dismissed. 1 am unable to accept the ratio decided in the aforesaid decisions so far as the same deal with on the question of revocation of grant of probate in view of the Division Bench Judgment of the Patna High Court and that of our Court particularly the same are later pronouncements. In the Division Bench judgment of Patna High Court cited by Mr. Mullick It has been held amongst other that probate proceeding has to be heard de novo after service of citation. Similar view has also been taken in the decision of our Court . The grant of probate is revoked under Section 263 of the Succession Act 1925 on just cause. This 'Just cause' in generic term that Includes non-service of citation upon the deserving person and forgery as well. In case of non-service of citation on revocation of grant, the proceeding has to be heard de novo after citation being served, but in case of revocation on the ground of Will being forged, no question of proceeding being heard again arises as the very foundation of proceeding perishes. The case on hand revocation of grant of probate was done on sole ground of non-service of citation. This is what was exactly observed by the Division Bench Judgment (Southern Bank Ltd. v. Kesardeo Ganeriwalla and Ors.) in paragraph 46 part of which is reproduced hereunder:

24. Therefore. 1 hold that the implication and effect of order of Justice A.K. Sengupta is that application for grant of probate has to be heard de novo. No application has been made for setting aside or recalling of the order of Justice A.K. Sengupta excepting by Mr. Mullick's client who has abandoned the same. My subsequent orders are so to say surplusage. However, since the probate has been revoked the original probate proceeding revives all the heirs and legal representatives in case of the death intestacy have to be cited. So in order to expedite the matter as logical consequence I passed the aforesaid order. I do not find any Illegality and Infirmity in my previous orders relating to Issuance of citation.