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3. The material facts of the case are that one Upendra Nath Maity, father of the original plaintiff, viz. Subodh Kumar Maity, died on 10.01.1960 leaving behind his wife, three sons including the plaintiff and a daughter. The wife of Upendra Nath was Barada Sundari, and three sons were Subodh Kumar Maity, Sasanka Sekhar Maity, Sudhir Kumar Maity and his daughter's only son, was Amiya Kumar Mahapatra.

4. The original plaintiff, viz. Subodh Kumar Maity, used to stay in Calcutta in connection with his work and his wife, sons and daughter used to stay at the paternal house of Subodh Kumar at Monoharchak. The said Subodh Kumar, since deceased, came to learn that the defendant No. 1, viz. Sasanka Sekhar, had obtained the Probate of a Will purported to have been executed by their father, viz. Upendra Nath, and, as a result of the said Probate, Sasanka was claiming a very large share of the property left by Upendra Nath. It was alleged that the said Will was forged and created after the death of Upendra Nath and by ante-dating the same and by acting in collusion with the others. Thereafter, a proceeding was initiated, being Miscellaneous Case No. 126 of 1961 in the Court of the learned District Delegate and, in the said proceeding, it was contended that the Probate was obtained without impleading all the heirs of deceased Upendra Nath to the said Probate proceeding and by not serving any notice on the heirs of the deceased Upendra Nath. As such, subsequently Subodh Kumar, since deceased, filed a suit for revocation of the Probate granted previously.

36. In Anil Behari Ghosh v. Latika Bala Dassi, , it has been held that omission to issue citation to persons, who should have been apprised of the probate proceedings may well be, in a normal case, by itself, a ground for revocation of the Probate. But, the learned Judges have said that the proposition is not absolute and has further added that the law has vested a judicial discretion on the Court to revoke a grant where the Court may have prima facie reasons to believe that, in the facts of the case, it was necessary to have the Will proved afresh in the presence of interested parties (see paragraph 16).

38. In this case, the discretion in the matter of revocation of Probate was rightly exercised by the learned Trial Judge on the ground of absence of citation on other two sons of the testator and also on Amiya the son of the only daughter of the testator.

39. The decision rendered in the case of Dinabandhu (supra) was based on the decision of the Privy Council in the case of Ramananda Keure v. Mt. Kalabati Keur, reported in AIR 1928 Privy Council 2. The learned Judges in the case of Ramananda Keur held that the service of notice before the grant of the Probate must be such as would give to the person alleged to have been served an opportunity to oppose grant and require the Will to be proved in the presence of the person. In that case, the Court held that the service was not such as to give opportunity to the person served to contest the grant of the Probate and that service was of no greater effect than the personal service on an infant of tender years. (See page 6).

61. The learned Counsel for the appellant relied on two judgments in support of his contention that the revocation proceedings are vitiated by waiver and acquiescence. Reliance was first placed on a decision reported in a case of Manorama Chowdhurani v. Shiva Sundari Mazumdar, reported in ILR 42 Calcutta 480. The principle decided in the said case does not support the contention of the appellant. In the said case it has been decided that neither acquiescence nor lapse of time are, by themselves, operative as a bar to a proceeding for revocation of Probate Court has to see that if such revocation proceedings are filed belatedly, the proceedings must be bona fide and there must be some reasonable explanation for the delay. The facts in the case of Manorama were that the Will was made in 1883 and the probate was taken out in 1884, the disposition of the Will was being worked out and acted upon. Thereafter a suit for account was filed in 1909 and in 1910 the objector filed a proceeding by alleging that the Will was forged and the probate was fraudulently obtained. In that case the proceedings were initiated after about 26 years and there was no explanation for the delay. On those facts, the learned Judges found that the application was not bona fide. But, same is not the factual position here. Therefore, in the facts of this case, it cannot be said that the revocation proceeding is either barred by unreasonable delay or by the principles of waiver or acquiescence.