R. D. Dhanuka, J. - (1.)By this petition, the petitioner seeks revocation of the probate granted by this court in testamentary and intestate petition No. 701 of 2003 by its order dated 24th May, 2003. The petitioner claims to be maternal cousin of Ms. Roshan Dadi Arsiwalla. The said Ms. Roshan Arsiwalla died on 25th June, 2003 (hereinafter referred to as the "said deceased").
(2.)Some of the facts relevant for the purpose of deciding this petition are as under :
(a) The petitioner is son of the deceased' mother's brother. The names of the other legal heirs of the said deceased according to petitioner are described in paragraph 3 of the petition. The said deceased has alleged to have left a Will on 11th November, 2002. Under the said alleged Will, the respondent herein were appointed as executors and trustees.

(b) On 6th May, 2004 the respondent herein filed a petition (701 of 2003) in this court inter alia praying for probate in respect of the said alleged Will of the said deceased in their favour having effect through out the State of Maharashtra. In the said petition, it was alleged that the said deceased left no sister and only brother Nadir Shaw predeceased the deceased and left no daughter and left only first cousin i.e. father's brother's son viz. Mr. Fredun Nadir Shaw Arsiwalla. The deceased died as spinster and except the said Mr. Fredun Nadir Shaw Arsiwalla the said deceased left no other heirs. The said Mr.Fredun Nadir Shaw Arsiwalla filed a consent affidavit in favour of the respondents herein for grant of probate. On 24th May, 2004 this court granted probate of the alleged Will dated 11th November 2002 in favour of the respondents.

(3.)Mr. Kapadia learned senior counsel appearing for the petitioner submits that petitioner was also one of the legal heir of the said deceased and would fall under schedule II Part 2 of the Indian Succession Act. It is submitted that though Mr.Nadir shah was given a notice by the respondents of filing the petition by way of citation and though petitioner was admittedly a cousin of the said deceased was not served with any citation nor was cited in the said petition filed by the respondents. It is submitted that relation of Mr.Nadir shah and Mr.Pheroze through whom the petitioner is claiming is equal and thus petitioner ought to have been cited in the testamentary petition and ought to have been served with the citation.