Judgment :- 1. This petition has been referred to us by a Division Bench (Vithayathil, J., and Kumara Pillai, J.,) before whom it came on in the first instance, under the following order of reference: This is a petition under S.302 of the Indian Succession Act. The petitioner is the sister of late Dr. C.L. Joseph who was a Civil Surgeon in the Cochin Service. He died on 11.4.1953. Respondents Nos. 2 and 3 are also his sisters and respondent No.1 is his brother. Dr. Joseph's wife predeceased him and he has no issues. By his will dated 26.3.1953 he created a trust, known as "Dr. C.L. Charities". He bequeathed most of his assets to that trust and appointed the fourth respondent executor of the will and sole trustee of the Charities. He also bequeathed Rs. 10,000/- to the fifth respondent - Convent on certain terms and Rs. 1,000/- to persons who were in his service. The net income from the assets was directed to be utilised for the following purposes: a) 5 per cent to be added to the corpus, b) a scholarship of Rs. 75 - per mensem to be given to a deserving lady student of the Trivandrum Medical College, c) 25 per cent of the balance income to be distributed among lepers, d) 25 per cent of the remaining income to be given as scholarships to deserving student for education up to the School Final Class and e) the balance income to be given to the destitute and the poor. There were also some specific legacies regarding the right of occupancy of a building and an investment of Rs. 30,000/- the deceased had made and the right to use a projector. The petitioner's case is that the beqests in the will for charitable purposes infringe the provisions of S.118 of the Indian Succession Act and are, therefore, void. S.118 is to the following effect: 'No man having a nephew or niece or any nearer relative shall have power to bequeath any property to religious or charitable use, except by a will executed not less than twelve months before his death, and deposited within six months from its execution in some place provided by law for the safe custody of the wills of living persons." The fourth respondent applied for probate of the will to the Anjikaimal District Court on 16.6.1953 and probate was granted to him. The petitioner was not a party to the probate proceedings. The petitioner prays that the fourth respondent be directed not to give effect to the bequests for charitable purposes mentioned in the will and to distribute as much of the estate as remains after satisfying the valid bequests to the petitioner and to respondents Nos.1 to 3 who are the heirs-at-law of the deceased. 2. Notice of the petition was given to the Advocate General also. Respondents Nos.1 to 3 support the petition. The fourth respondent alone opposes it. His main objection is that the petition does not come within the scope of S.302 of the Indian Succession Act, that the petitioner was bound to raise the objection in the Probate proceedings and that her remedy, if any, is a fresh suit. On the merits of the petition, it was contended thus: The deceased had executed a will on 28.1.1952. He also executed two codicils, one on 26.2.1953 and the other on 28.2.1953. According to the fourth respondent the will dated 26.3.1953 is only a re-publication of the will dated 28.1.1952. It was, therefore, contended that the period of one year mentioned in S.118 of the Indian Succession Act should be calculated from the date of the first will, viz., 28.1.1952. 3. S.302 of the Indian Succession Act provides: "Where probate or letters of administration in respect of any estate has or have been granted under this Act, the High Court may, on application made to it, give to the executor or administrator any general or special directions in regard to the estate or in regard to the administration thereof." According to the fourth respondent, a direction for not giving effect to the bequests in the will in favour of charities will in effect cancel the will itself and that a direction of that nature is not contemplated by the section. According to the petitioner, there is nothing in the section to restrict, the power of the High Court to give direction to the executor not to give effect to an invalid provision in the will. Reliance was placed by him on a decision of the Madras High Court reported AIR 1928 Madras 356 (Akkayya v. Lakshamma). 4. The question is of considerable importance and there is no decision of this Court relating to the matter. Reliance was placed by him on a decision of the Madras High Court reported AIR 1928 Madras 356 (Akkayya v. Lakshamma). 4. The question is of considerable importance and there is no decision of this Court relating to the matter. We, therefore, think it desirable that this question and the other questions raised in the O.P. are considered by a Full Bench of this Court. We, therefore, refer this O.P. to a Full Bench." 2. The positions respectively taken by the petitioner as representing the next of kin who will succeed to the estate as on intestacy on failure of the bequest for charities on the one side and by the executor probate-holder who had been constituted the sole trustee of the Charities, on the other, are succinctly stated in the order of reference and we do not therefore re-state them. To appreciate the further elucidation of their stand before us and also the fresh position contended for by the learned Advocate General as representing the Charitable bequests impugned, the following further facts may conveniently be stated before we proceed further. 3. The first will executed by the deceased on 29.1.1952 had like the second will of 26.3.1953 been deposited with the District Registrar on 31.3.1952 in view of S.118 of the Succession Act. It had also not been withdrawn from the deposit when the second will was made and deposited and indeed continued in the custody of the Registrar, until production before us by him on our requisition. The two codicils of 26.2.1953 and 28.2.1953 however were at all material times after their execution, with the testator until on his death they came into the possession of the executor who produced them before us. We have marked these two codicils and the first will as Exts. I to III. 4. Even by the date of the first will the testator had formed his decision to bequeath his entire estate for the cause of charities. He had, as he declared in the first will and repeated in the second, no wife or children to succeed him and there were none in whose favour he need make any provision, financial or otherwise. So he created and constituted the trust to be known by the name of "Dr. He had, as he declared in the first will and repeated in the second, no wife or children to succeed him and there were none in whose favour he need make any provision, financial or otherwise. So he created and constituted the trust to be known by the name of "Dr. C.L. Charities" in which was to rest all his properties, movable and immovable, without exception, of a value, ascertained at date of the probate application, of Rs. 2,17,485-4-0 (net). It was this same trust idea which he incorporated in the second will. The purposes which he intended should be served by the income from the trust properties were again detailed in the first will in much the same manner as in the second. Only they took in certain small addition when by virtue of the second codicil he provided for two additional legacies, one for Rs. 1000 in favour of his servants and another in favour of Miss Prestina of Rs. 60/- per month which later he amended in the second will as Rs. 45/- per month or Rs. 10,000 in lump. No fresh additions were made in the second will. As regards the administration of the Trust, the original idea of a Board of three representing three communities, Christian, Nair and Ezhava, functioning under the scheme detailed, was given up under the first codicil, in favour of the provision for a single executor trustee and it was this idea again which governed the second will. It is possible therefore to say appropriately that there was a real practical identity of subject matter as regards the provision for charities so far as the two wills were concerned, though there was some distinction in the method of administration respectively adopted in them. 5. We should not omit to mention at this stage that the second will commenced by saying that it was the "last will and testament" of the deceased and executed "in supersession of my prior wills and codicils". Apart from the general revocation clause as above, there was also an express revocation clause as follows: "I have executed a will dated 28th January 1952 which has been entrusted to the District Registrar for safe custody and codicils dated 26th February 1953 and 28th February 1953. Apart from the general revocation clause as above, there was also an express revocation clause as follows: "I have executed a will dated 28th January 1952 which has been entrusted to the District Registrar for safe custody and codicils dated 26th February 1953 and 28th February 1953. I revoke the said will and codicils after mature and deep consideration and on being satisfied that the terms of the said documents are not adequate to effectuate my desires." These revocation clauses have given rise, in this case to a good deal of controversy. 6. We may now state the contention advanced by the learned Advocate General on behalf of the Charities. It was put this way. The last will contained no doubt general as well as express revocation clauses, apparently clear and unambiguous, still they did not so completely revoke the original will. The revoked it only conditionally on the new will coming into operation so that if the provisions for charities were hit by S.118 of the Succession Act, then to that extent, the original will must be deemed to be still subsisting and valid. And the Advocate General relied on the tenacity of the testator's wishes as reflected in the expression of his testamentary ideas in the two wills concerned. In other words the revocation of the earlier will was a "dependent relative revocation" and the charitable bequests in the former will must in consequence be allowed to take effect. 7. This doctrine of dependent relative revocation, relied on by the learned Advocate General is explained by Jarman on Wills, 8th edition, volume 1 at page 165 as follows: "Where the act of destruction is connected with the making of another will, so as fairly to raise the inference that the testator meant the revocation of the old to depend upon the efficacy of the new disposition intended to be substituted, such will be the legal effect of the transaction and therefore, if the will intended to be substituted is inoperative from defect of attestation or any other cause, the revocation fails also, and the original will remains in force. The doctrine, which has been described as somewhat overloaded with unnecessary polysyllables, applies whenever the intention to revoke a will is conditional only and the condition is not fulfilled, and the doctrine may apply although the later will is partially effective." That is to say, revocation may be relative to another disposition which has already been made or is intended to be made and so dependent thereon that revocation is not intended unless the other disposition takes effect. The question in these cases is not determined by the presence or absence of express words of revocation. The Court must be satisfied that the testator did not intend to revoke the original will except conditionally in so far as the other disposition could be set up. 8. It may be recalled that the contention raised by Mr. K.P. Abraham on behalf of the 4th respondent involves a like assumption as the learned Advocate General's argument has made viz., that the expressions "revocation and supersession" used by the testator in the second will are "meaningless and repugnant". Mr. K.P. Abraham explains the position taken by him, as only an application to the particular circumstance, of the doctrine of republication by codicil of an earlier will. The second will though it purports to be in revocation and supersession of the earlier will and codicils was in fact a republication of the said will and codicils incorporating them into one document at a later date. But although ordinarily a codicil confirming a will makes the will for many purposes bear the date of the codicil yet this rule is subject to the limitation that the intention of the testator is not defeated thereby. And he instanced the case of Re Moore (1907) I Ir. R.315 where it was held that a testamentary gift valid at the date of the will under the Charitable Donations and Bequests (Ireland) Act, 1844, corresponding to S.118 of the Succession Act herein, was not allowed to be invalidated by the mere republication of the will. 9. Mr. And he instanced the case of Re Moore (1907) I Ir. R.315 where it was held that a testamentary gift valid at the date of the will under the Charitable Donations and Bequests (Ireland) Act, 1844, corresponding to S.118 of the Succession Act herein, was not allowed to be invalidated by the mere republication of the will. 9. Mr. K.K.Mathew, learned Counsel for the petitioner raised the objection however that the contentions raised on behalf of the 4th respondent and the Charities could not be entertained at all so long as the Probate Certificate as issued to the executor stood unrevoked, for the Court of construction, sitting as we were, had to assume not only that all documents admitted to probate were testamentary but that they constituted the whole of the testamentary disposition of the testator. Indeed both the contentions assumed that the first will still stood available for being referred to as constituting the relevant disposition for the Charities. But the Probate had the copy of the second will in full annexed to it inclusive of the expression "revocation and supersession" of the earlier instruments and there was further no reference in it to the first will or codicils. On the merits he argued that the doctrine of dependent relative revocation relied on by the Charities had never so far been extended to cases of the type herein when the dispositive provisions fail through circumstances apart from the manner of execution and referred us to a passage in the American Jurisprudence, Vol. 57. On the merits he argued that the doctrine of dependent relative revocation relied on by the Charities had never so far been extended to cases of the type herein when the dispositive provisions fail through circumstances apart from the manner of execution and referred us to a passage in the American Jurisprudence, Vol. 57. Art.517 where it was said: "Numerous authorities support the rule that the failure of a gift by codicil or later will to charitable or religious institutions, because the testator died within the period which it is required by statute must elapse between the execution of the will and the death of the testator, does not operate to prevent the revocation of bequests made by an earlier will to the same legatees or devisees" but the reason is given in the next sentence "that the adoption of a specific legacy given by a codicil as a substitute for a general bequest in the will to the same person does not prevent the revocation of the original gift." He was however frank in bringing to our notice the just anterior passage in the same Article which seemed to strike a different note as follows: "Several authorities have held that a revocation clause may be denied effect on account of the failure of the dispositive provisions of the will to operate, due to a cause dehors the instrument, as where the disposition is within the rule against perpetuities or is void on account of lack of power in the testator." 10. And with reference to the doctrine of republication, he said there was absolutely no scope for the application of the doctrine since republication took place only when the testator made a codicil to his will or executed some testamentary instrument from which the inference could be drawn that he wished it to be read as part of his will. And he said finally that if the contentions of the executor and the Charities were discountenanced, there was a clear case of infringement of the provisions of S.118 of the Succession Act as appeared to be more or less admitted; and no difficulty need be entertained in the matter of giving the necessary directions to the executor as prayed for. 11. In our judgment the preliminary objection raised by petitioner's learned Advocate is bound to prevail. 12. 11. In our judgment the preliminary objection raised by petitioner's learned Advocate is bound to prevail. 12. The probate as ordinarily understood is a judicial act whereby the instrument is adjudged to be the last will and testament of the deceased. It establishes the proper execution of the instrument and it is now taken to be the general rule that a will cannot be given in evidence as the foundation of a right or title unless it has been duly probated. The testamentary disposition of a deceased's property may be found in two or more instruments executed independently of one another and if they are partially but not wholly inconsistent and there is no provision in the latest one expressly revoking the former ones such instrument together constitute the will of the testator and are admitted to probate. But when once a probate is granted "everything included in the probate copy but no word besides must be taken by the court of construction to be part of the will and the original will cannot be appealed to for purpose of showing that such copy is erroneous". See Jarman on Wills, 8th edition, volume 1, page 42. It follows therefore that the grant of probate so long as it remains unrevoked must be taken to be conclusive evidence of the will which has been admitted to the probate and also its validity and it is not open to any other court to allow a grant made by a probate court to be questioned. We accordingly hold that it is not open to the executor or the Charities to seek to go behind the probate before us and resuscitate the first will or the codicils thereto on any basis. 13. The proper procedure, in our opinion, will be for the Charities, as represented by the Advocate General, to apply for revocation of the probate already issued as well it can do, under S.263 of the Succession Act and make the proceedings contentions by asking the executor to prove the will in solemn form. Or it may be that the executor also may seek to amend the probate already granted but that is a matter between him and the probate Court. Or it may be that the executor also may seek to amend the probate already granted but that is a matter between him and the probate Court. Anyway we wish to make it clear that it is for the probate court alone to arrive at its own conclusions on questions which may be raised before it and nothing that we have said so far need embarrass it. It would then be open to the probate court to consider the legal existence of the prior will and the codicils and the availability of the provisions for the charities contained therein. If the revocation clause in the last will is, as contended by the Advocate General inoperative on the principle of dependent relative revocation, the practice in England is to grant probate of that and the previous will together and omit the revocation clause. See In the Estate of Brown (1942) 2 All. E.R. 176. 14. We may refer in this connection to Elizabeth A. Vanqulin v. Official Trustee, Bengal, AIR 1931 Cal. 138, where in circumstances almost similar to the case here, the learned judge of first instance (Lord-Williams, J.,) on originating summons under S.302 of the Succession Act entered in the question whether the will which had been admitted to probate, was the man's will or not or whether it, together with something else was the man's will and he came to the conclusion that the will which had been revoked was revoked only by a dependent conditional revocation and he applied the consequence of that finding to the circumstances of the case. He took the view that it did not very much matter whether the second will was hit by S.118 or not because he said that the charitable bequests in it did not revoke pro tanto the charitable bequest made in the first document. Criticising the procedure adopted by the trial judge Rankin, C.J., on behalf of the appeal Bench after observing that the judge below had no jurisdiction on an originating summons to entertain or decide the question said: "The question what is the man's will is a question to be decided in the testamentary jurisdiction of the Court, just as in England, it is to be decided in the probate division of the High Court. It is not a question that can be decided incidentally according as the dispute between the parties happens to arise in the small Cause Court in Calcutta or the Munsiff's Court in Bhagalpur or somewhere else. It has to be dealt with as a matter in respect of which the ultimate finding of the Court is "a finding in rem binding the whole world. When you know what a man's will is, there is plenty of time to begin to construe it". After quoting the final order of the judge below which declared that the executor was entitled to apply to the probate of the first testamentary document and the second testamentary document or to apply for a probate of a copy thereof, that eminent Chief Justice went on: "It seems to me that it must be wrong to decide the question whether a certain document should be admitted to probate upon an originating summons and then to declare that the executor is entitled to apply to the Probate Court. This is a matter for the Probate Court which may well take a very different view. It is not until the Probate Court has decided the matter finally that it is given to anyone to know what the dispositions made by the testator are". The order of the court below was accordingly set aside but as the Official Trustee, executor had already made an application to the Probate Court to get probate of the first will as well as the second, the case was sent back to be dealt with, after the Probate Court had decided the matter of the first testamentary disposition on the application made before it. 15. The learned Advocate General represents before us in the light of the decision in Elizabeth A. Vanqulin v. Official Trustee, Bengal, AIR 1931 Cal. 138, just noticed that he will be making the necessary application in the Probate Court on behalf of the Charities to revoke the probate as already granted and grant probate of the first will also along with the second in accordance with the decision in In the Estate of Brown, (1942) All E.R. 176 abovesaid and suggests that the proceedings herein be dropped or at least adjourned on such basis. 16. 16. In view of our conclusion on the preliminary question, it has become unnecessary to make any pronouncement as to the scope and applicability of S.302 of the Succession Act and the other questions debated at the bar. 17. We have considered what final order to pass in all the circumstances and we think that a chance should be given to the Charities and the executor to go before the Probate Court and have the relevant questions properly considered, but we do not wish to allow them to take their own time indefinitely in the matter. We think an outer limit of six months from now will give them enough time to make the necessary motion. We therefore dismiss the petition herein, with liberty reserved to petitioner to move this Court again after six months in the light of the developments and if so advised. We make no order as to costs.