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4. Learned counsel appearing for the applicants submitted that the probate granted by this Court is liable to be cancelled on the sole ground that the previous Will left by the Testatrix has been suppressed in the subsequent proceedings and the consent affidavits filed by the parties were also forged one. There are lot of suspicious circumstances surrounding the Will. Hence, prayed for revocation of Probate.
5. Learned counsel for the respondents would submit that the Probate was granted in the year 2001 and this application has been filed after a long delay and hence the application is barred by limitation. Further the applicants have no caveatable interest at the time of granting probate. Their mother had also given consent affidavit. Therefore submitted that now the applicants cannot assail grant of Probate. Further there is no material to show that there was a forgery. Hence, prayed for dismissal of the application.
6. In support of his contention, the learned counsel for the respondent placed reliance of the following judgments:
1.2013(4)Mh.L.J. 464 [Nina Agarwalla vs. Ashok Gupta and others]
2.(2008) 4 Supreme Court Cases 300 [Krishna Kumar Birla v. Rajendra Singh Lodha and others]
3.(2018) 1 Supreme Court Cases 271 [Lynette Fernandes vs. Gertie Mathias]
7. The applicants are the children of one Mrs.V. Neelaveni, who is one of the daughters of Tmt.Komalammal. The 1st respondent is executor of the Will appointed by Tmt. Komalammal. Respondent Nos.2 and 3 are also legal heirs of Tmt. Komalammal. These facts are not in dispute. This application has been filed to revoke the probate granted by this Court on 11.06.2001 in T.O.S.No.14 of 1998. The main contention of the applicants is that the earlier Will of Tmt. Komalammal, of the year 1977 has been suppressed. That apart consent affidavit of the mother has been forged. It is to be noted that the relationship of the parties is not in dispute and the probate has been granted by this Court after hearing the parties. In fact the mother of the applicants is also made as a party and she has also given consent affidavit to probate the Will of her mother. These facts are on record.
9. It is further to be noted that the application has been filed with undue delay. In this regard the Apex Court in Lynette Fernandes vs. Gertie Mathias reported in (2018) 1 Supreme Court Cases 271, has held as follows:
19. One must keep in mind that the grant of probate by a Competent Court operates as a judgment in rem and once the probate to the Will is granted, then such probate is good not only in respect of the parties to the proceedings, but against the world. If the probate is granted, the same operates from the date of the grant of the probate for the purpose of limitation under Article 137 of the Limitation Act in proceedings for revocation of probate. In this matter, as mentioned supra, the appellant was a minor at the time of grant of probate. She attained majority on 09.09.1965. She got married on 27.10.1965. In our considered opinion, three years limitation as prescribed under Article 137 runs from the date of the appellant attaining the age of majority i.e. three years from 09.09.1965. The appellant did not choose to initiate any proceedings till the year 25.01.1996 i.e., a good 31 years after she attained majority. No explanation worthy of acceptance has been offered by the appellant to show as to why she did not approach the Court of law within the period of limitation. At the cost of repetition, we observe that the appellant failed to produce any evidence to prove that the Will was a result of fraud or undue influence. The same Will has remained un-challenged until the date of filing of application for revocation. No acceptable explanation is offered for such a huge delay of 31 years in approaching the Court for cancellation or revocation of grant of probate.
"13 The Appellant has not been able to show any evidence to establish that the citation was not served upon her. We find it difficult to accept on her mere statement that the citation was not served upon her, particularly in view of the records of the testamentary department of the Court and the fact that probate was granted more than 38 years ago. So far as the decisions of the Supreme Court in the matter of Kunvarjeet Singh (supra) is concerned, the same dealt with the issue of grant of probate and not with revocation of probate. In any case, in the facts of the present case in the absence of the Appellant being able to show that citations were not served upon her and she was kept in dark about the Will dated 28 March, 1964, the provision of Section 263 of Indian Succession Act, 1925 is not satisfied. Moreover, one must keep in mind that a grant of probate by a Competent Court operates as a judgment in Rem and once the probate to the Will is granted, then the said probated Will is good not only in respect of the parties to the proceedings, but against the whole world. Therefore, if the probate is granted, the same operates in Rem and time runs from the date of the grant of the probate for purposes of limitation under Article 137 of the Limitation Act in proceedings for revocation of probate. "