- (1.) A judgment of a Division Bench of our Court in Ashok Kothari v. Dipti Bavishi, 2007 AIR(Cal) 21 is the foundation for this application to revoke the grant of probate made by this Court on 17th May, 2010. The probate was of the last will and testament dated 12th June, 2002 of Amritlal Kalidas Sayani. He died on 1st June, 2003.
(2.) Now, this will was probated by this Court in common form, on an application filed by the executor, being the first respondent and brother of the testator, to which were annexed consent affidavits of all the heirs of the testator, who would have been entitled to succeed to his estate on intestacy. Almost one year after the grant this application was filed by two sons of the testator Bharat Kumar and Tilok Chandra, both being legatees under the will, for its revocation.
(3.) A passage from the above judgment is cited by the applicants to revoke the grant and to ask the executor to prove the will in Court. The passage is this: 21. It follows therefore that when the will has been probated only in common form an heir in case of intestacy even after acquiescing in the legacy may as a matter of right call upon the propounder to prove the will. Evidently, when the state of law is this, the letter dated 14th March, 2001 strongly relied upon by Mr. Kapoor cannot really make any difference. Therefore, the revocation of grant is unexceptionable. All that would now happen is that the propounder would be required to prove the will per testes. ;