- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. APPEAL NO.695 OF 2004 IN MISC.PETITION NO.33 OF 2004 IN PROBATE PETITION NO.143 OF 2004 ... Kisan Yashwant Dhomase & Anr. ...Appellants v/s. Vispy Bahadur Kapadia & Anr. ...Respondents ... Mr.A.Y.Sakhare i/b Mr.A.J.Almeida for the Appellants. Mr.D.D.Madon with Mr.Cyrus Adreshir o/b Vigil Juris for the Respondents. ... CORAM: D.K.DESHMUKH & A.A.SAYED, JJ. DATED: 26TH FEBRUARY, 2009 P.C.: 1. By this Appeal, the Appellants take exception to the order passed by the learned single Judge of this court dated 30-9-2004. By that order the learned single Judge has revoked the probate of the will - 2 - granted earlier. 2. The relevant facts are that one Nariman Kapadia had executed a registered will dated 4th March, 2003. He died on 24-7-2003. On 5-1-2004 a petition seeking probate of his Will was filed in this court. In the petition a statement was made that the testator has died leaving behind no surviving heirs and next of kin according to the Indian Succession Act, 1925. No personal citation was, therefore, served on anybody. The citation was published in the newspapers. No caveat was received. Therefore, the probate was granted on 30-6-2004. Misc.Petition No.33 of 2004 was filed by the present Respondents. Respondent No.1 Vispy Bahadur Kapadia is son of the brother of the testator and Mrs.Shazneen Jahangir is daughter of the pre-deceased son of the testator. In other words, she is granddaughter of the testator. 3. There is no dispute before us that both the Respondents are relatives of the testator and therefore were entitled to be cited in the probate petition. There is also no dispute that they were not cited in the probate petition. The learned single Judge by his order revoked the probate of the - 3 - Will granted, mainly on the ground that the two Respondents who were entitled to be cited in the probate petition were not cited. On the contrary, apparently a false statement was made in the probate petition that the testator has died leaving behind him no heirs or next of kin, when in the Will itself the testator has disclosed that he had one brother and two sisters. 4. We have heard the learned Counsel for both sides. We find that once it is an admitted position that the Respondents were entitled to be cited in the probate petition and admittedly they were not cited, this is sufficient ground for setting aside the probate of the will granted. In our opinion, no exception can be taken to the order passed by the learned single Judge. 5. Appeal, therefore, has no substance. It is disposed of. (D.K.DESHMUKH, J.) (A.A.SAYED, J.)