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3. The applicant has claimed that he and his family members interacted and regularly visited Smt. Sushama Roy in Delhi, but she was always shadowed by Respondent no.1, her brother. During one such visit some time in 2014 the Respondent no.1 during a discussion enquired from the petitioner whether Mr. Roy had executed or left any testamentary document in regard to the property. The petitioner answered in affirmative on which the Respondent No.1 requested for a copy of testamentary document, but the petitioner did not oblige as he had no reason to do so.Smt Sushama Roy died on 10 th May 2015 in New Delhi, but the petitioner was informed late in the night and could reach Delhi only in the morning but was shocked to know that she had already been cremated. He tried to visit the property, but was prevented by Respondent no.1 on the pretext that he was disturbed by the loss of his sister and would appreciate if he was left alone for a few days. The Applicant obliged as Respondent No.1 is an aged man.

5 The Respondent No.1 by way of his application under Order VII Rule 11 has sought rejection of the application on the grounds that the applicant has no locus standi to move the present application and there is no situation or valid reasons for granting the revocation of the Probate. It is asserted that the revocation of Probate can only be on the grounds specified in Section

263. None of the grounds as stated therein are pleaded in the application nor are made out from the submissions of the applicant. It is further submitted that it is a settled law that Probate is never conclusive about the interpretation of the Will nor does it determine the question of title to the property which is the subject matter of the Will. It does no more than establish the factum of Will and legal character of the executor, but the Probate court cannot decide the question of title or of the existence of the property itself. It is asserted that instead of challenging the validity or genuineness of the Will, the applicant has frivolously filed the present application which is beyond the jurisdiction of this Court. The present application is liable to the dismissed as not maintainable. Furthermore, the petitioner is guilty of suggestion falsi and suppressioveri as he has concealed true facts from the Court. He was aware about the Probate proceedings since beginning and has committed perjury by lying on oath and the application is malafide. It is asserted that the Deed of Settlement claimed to have been executed by Late Sh. S.K. Roy is fraudulent and collusive Deed about which the Respondent no.1 was never made aware in 28 years. The property in question was the self acquired property of Sh. S.K. Roy and after his demise, the property devolved upon his wife. The applicant cannot claim any right in the light of Section 8 and 9 of Hindu Succession Act. It is further asserted that Sh. S.K. Roy was suffering from brain tumor which was malignant and it was well within the knowledge of the petitioner that the medical inhibition acted heavily on him rendering him incapable to consent thereby and he did not leave any testamentary document of any nature as asserted by the petitioner. It is further asserted that the applicant never came to Delhi after the demise of Sh. Roy nor did he take care of the property or keep any contact with Smt. Sushama Roy. The respondent No.1 and Smt Sushama Roy undertook unto themselves the responsibility of the upkeep and maintenance of the property and duly paid the associated taxes. The mutation proceedings were conducted by deceased Sushama Roy and she got the property mutated in her own name. Thereafter, she and Respondent no.1 undertook the responsibility of upkeep and maintenance of the property. It is asserted that there was no estrangement between Late Sh. S.K. Roy and his wife and she was fully aware of the dealings of her husband in regard to the property, sale and mortgage and any other deals effected by him which rules out any probability of existence of any family settlement without the knowledge of the testatrix. It is claimed that Family Settlement is rank forgery and has been fabricated and brought forth by the applicant after 28 years under suspicious circumstances. The signatures of the two attesting witnesses also appear to be forged. The relationship between Sh S.K. Roy and his brother and the applicant who were staying in Kolkatta, were not cordial rendering the settlement deed invalid in law. The same has been procured by unfair means as in 1990 Late Sh. S.K. Roy was suffering from malignant tumor and was unable to give consent. If it was a genuine document then what prevented the Applicant to take steps to bring legal Representatives on record after the demise of Sh. S.K. Roy. It is further asserted that the property in question is located in Delhi, yet the Family Settlement was documented and registered in West Bengal and it was never acted upon after the demise of Sh. S.K. Roy and was also not enforced within three years during his life time. Thus, it cannot be now enforced against Smt. Sushama Roy or Respondent no.1 as is barred by limitation and law of estoppel. It is claimed that present application is nothing but a litigation engineered and galvanized by the applicant who never claimed possession yet through a false and illicit set of illegible papers having no force of law is attempting to falsify the bonafide and legitimate interest of respondent No. 1 who has been in uninterrupted possession of the property. 6 It is asserted that during the Probate proceedings wide publicity was given about the matter and the publication was taken out in Indian Express dated 18.09.2015 and Jan Satta dated 18.09.2015. The law presumes full knowledge of the Probate proceedings and thus, bars the petitioner from now moving this application.Moreover, the petitioner was not entitled to citation or special citation under the law since he does not come within the ambit of heirs of deceased Smt. Sushma Roy. Furthermore, the petitioner never approached Smt. Sushama Roy during her life time or Respondent no.1 with the Family Settlement nor did he claim the possession. The Family Settlement Deed is also bad for want of acceptance and Respondent no.1 has remained in uninterrupted possession of the property. The present application is, therefore, not maintainable. In the end, it is also claimed that the revocation application is not signed and verified by a duly authorized person and is liable to be dismissed on this ground as well. A prayer is, therefore, made that the petition be rejected.

9. Ld. Counsel on behalf of the petitionerhas arguedthat Sh. S.K. Roy died in 1996 but during his life time he had executed a registered Deed of Settlement at Calcutta. According to Deed of Settlement Smt. Sushama Roy after the demise of Sh. S.K. Roy her husband, was to get a life time enjoyment of property and thereafter the property was to vest in Sh. Saumen Ray, the applicant. It is asserted that the Respondent no.1 who is the brother of Late Smt. Sushama Roy, was well aware about the testamentary document executed by Late Sh. S.K. Roy, but this fact was intentionally not revealed by him in the Probate proceedings. Since Ms. Sushama Roy had inherited only a right to enjoy the property during her life time, she did not become an absolute owner. She had no right, title to bequeath this property by way of a Will in favour of Respondent no.1, her brother. It is argued that despite being aware of the earlier Family Settlement, the material facts had been concealed during the Probate proceedings thereby entitling the petitioner to seek revocation. It is asserted that the petitioner is the son of the brother of Late Sh. S.K. Roy and was a Class-II heir who became the ultimate beneficiary by virtue of the Family Settlement. Despite being a Class-II heir, no citation was issued to him during the Probate proceeding which is mandatory and thereby vitiate the Probate proceedings.

44. A feeble attempt was also made by the Applicant to set up a plea of Fraud. It was asserted that sometime in 2014 Respondent No. 1 had enquired from him if Late Sh. S. K. Roy had left any testamentary document to which applicant had answered in affirmative but did not feel the need to reveal any further. The Applicant has claimed that despite being aware of the testamentary document, Respondent No. 1 failed to disclose about it in the Probate proceedings. This is a self defeating submission for as the Applicant himself neither did he disclose any details of the testamentary document nor did he ever provide any copy to the Respondent No. 1. It may be noted that the Family Deed now being produced by the Applicant is not like a usual will but is in the form of Trust Deed which has its own unique characteristics. Also, as per the submissions of Applicant himself, aside from a vague response Respondent No. 1 had no clue about this document; once he was not aware of the existence of the document the question of disclosing it in the Probate proceedings did not arise.