JUDGMENT : D.P. Mohapatra, J. - These two appalls are closely linked with each other as the decision in one will depend on the findings in the other. By consent of the counsel for the parties, both-the appeals were heard together. They are being disposed of by this judgment. . 2 First Appeal No. 160 of 1975 has been filed by Rama Krishna Ray, Plaintiff in the lower Court, against Rajib Lochan Ray and Ors., Defendants against the judgment dated 11.7-1985 and decree dated. 23-7-1975 passed by District, Judge, Cuttack in O. S. 8 of 1962, dismissing the suit seeking letters of Administration u/s 278 of the Indian Succession Act (hereinafter referred to as the 'Act') in respect of the will executed by late Reba Debi on 18-7-1957 (Ext. 1). First Appal No. 399 of 1977 has been filed by Debapriya Banarjee and Ors., Plaintiffs in O. S. No. 2 of 1976 of the Court of the District Judge, Cuttack against Rajib Lachan Ray and Ors., Defendants therein, against the judgment and decree dated 5-8-77/16-8-1977, rejecting the Appellants application u/s 263 of the Act for revocation of the' letters of Administration granted in favour of the Defendants in respect of the Will executed by late Rama Rao, widow of lette Jagannath Rao on 5-7-1982. 3. The relevant facts which are undisputed may be stated thus: Jagannath Rao was the younger brother of poet Madhusudan Rao, a well known figure in Oriya literature. Rama Rao was his wife. They had two daughters, Reba Debi and Saraswati Debi. Saraswati was married to Amritananda Ray. They are both dead leaving a son Ajitananda Ray. Reba Dei was married to Sadhu Ch. Ray. They had two sons Sachidananda Ray and Sudhir Chandra Ray and a daughter Indira. Sudhir died unmarried. Sachidananda Ray left four sons. Rajib Lochan, Sudarsan, Manmohan and Manasranjan. Indira died leaving behind a daughter Aloka Okil and two sons, Priyadarsi and Debapriya. After the death of Sadhu Charan Ray, Reba Debi remarried Nilamani Dhal. By then, Nilamani Dhal was widower with a daughter Punyaprava through his first wife. Rama Krishna Ray is the son of Punyaprava. Rama Rao, executed a registered Will on 5-7-1928 in favour of Rajib Lochan Ray and his brothers. In Misc. Case No. 30 of 1959 the District Judge, .cut tack granted letters of Administration in their favour on 5-8-1961. By then, Nilamani Dhal was widower with a daughter Punyaprava through his first wife. Rama Krishna Ray is the son of Punyaprava. Rama Rao, executed a registered Will on 5-7-1928 in favour of Rajib Lochan Ray and his brothers. In Misc. Case No. 30 of 1959 the District Judge, .cut tack granted letters of Administration in their favour on 5-8-1961. The property bequeathed under this' Will was a big double storied building with spacious garden at Kafla in Cut tack Tow~. The very same property appears to have been bequeathed by Reba Debi in the Will (Ext. 1), executed on 18-7-1957,. in favour of Rama Krishna Ray and Indira by appointing her second husband, Nilamani Dhal as the executor. At the instance of Nilamani Dhal, a proceeding was initiated for grant of the Letters of Administration in his favour on the basis of .the Will, Ext. 1. In the said proceeding, objection having been raised by Rajib Lochan Ray and Ors. that the letters of Administration could not be granted for the second time for thyself-same property. Nilamani Dhal filed a petition u/s 263 of the Act on 8-1-1955. (O. S. No. 32 of 1966) for revocation of the Letters of Administration granted in Mise. Case No. 30 of 1959. The petition having been dismissed on 10-8-1967, Nilamani Dhal preferred First Appeal No. 20 of 1968 in this Court. The said appeal was dismissed. Thereafter Nilamani Dhal filed O. S. No. 8 of 1962 and he having died during pendency of the said case Rama Krishna Ray was substituted in his place. The Respondents, Defendants in the suit, contested the suit mainly on the grounds that the Will Ext. 1 was a forged and fabricated document; by the date of its execution Reba Debi was not in a sound disposing state of mind to execute the Will and in view of grant of the Letters of Administration in Misc. Case No. 30 of 1959 in favour of Rajib Lochan Ray and Ors. the Court ought not to grant another Letters of Administration in favour of the Petitioner for the self-same property. The learned District Judge on consideration of the evidence led by the parties held that Ext. 1 was not a forged document and that it was executed by Reba Debi in a sound disposing state of mind in, presence of the attesting witnesses and the scribe. The learned District Judge on consideration of the evidence led by the parties held that Ext. 1 was not a forged document and that it was executed by Reba Debi in a sound disposing state of mind in, presence of the attesting witnesses and the scribe. On the second point, however, the Court held that since the Letters of Administration granted in Misc. Case No. 30 of 1959 had not been revoked it was not possible to grant the Letters of Administration to the Petitioner: on the basis of the Will Ext. 1, though the said document was found to be a genuine one. On this finding the suit was dismissed by the learned District Judge by his judgment dated 11th. July. 1975. In O.S. No. 2 of 1976, Debapriya Banerjee, Aloka Okil. Leena Banerjee, Jyotipriya Banerjee. Sudarei Banerjee and Priyasree Banerjee, descendants of Indira, filed an application u/s 263 of the Act for revocation of the Letters of Administration granted in favour of Rajib Lochan, Sudarsan Ray, Manmohan Ray. Manas Ranjan Ray and Ajitananda Ray, heirs of Sachidananda Ray in Misc. Case No. 30 of 1959, mainly on the ground that the Letters of Administration was obtained by making a false statement that the properties belonged to Rama Rao though it actually belonged to Late Jagannath Rao and that, Rama Rao being a limited owner was not competent to bequeath the property by executing the Will, specific citation was not made about Indira though she was a near relative and general citation was also suppressed. One of the Defendants. Ajitananda Ray filed a written statement denying the claim of the Petitioner. He took the stand that the disputed properties were Stridhan properties of Rama Rao in which the Plaintiff' had no interest. Referring to the decision in O. S. 2 of 1966 he contended that the petition was barred by principle of constructive res judicata. The learned District Judge,by his judgment dated 5th. August, 1977 held that in the facts and circumstances of the case, the property of late Jagannath must' be deemed to have been bequeathed to the ultimate heirs and, the same cannot be said to be either fraudulent or a mis-presentation to the Court. The Court also 'held that the contention that the estate did not belong to the testator is not tenable in the revocation proceeding. The Court also 'held that the contention that the estate did not belong to the testator is not tenable in the revocation proceeding. Regarding the citation about Indira, the Court found that the general citation was deemed to have been complied though the order sheet. Ext. 3. was not specifically clear about this and the Plaintiff had not made out sufficient cause for revocation of the previous order of the Court granting the Letters of Administration to the Defendants. On these findings the Court dismissed the suit. As noticed earlier, the decision in the two suits are under challenge in these appeals. 4. From the facts discussed above the principle question that arise for consideration are;(a) whether the Will, Ext. 1 executed by Reba Debi was a forged and fabricated document; (b) whether the Will executed by late Rama Rao was invalid Since the testator being a limited owner had no power; to bequeath the property' by executing a Will and if so, whether the Letters of Administration granted by the Court in Misc. Case No. 30 of 1959 could be revoked on that ground and (c) whether the Letters, of Administration granted in Misc. Case No. 30 of 1959 was also liable to be revoked on the ground of want of issue of general citation. It may be reiterated here that the property dealt with under both the Wills is one and the same. 5. As noticed earlier, the main ground, an which revocation of the Letters of Administration granted in Misc. Case No. 30 of 1959 was sought, was that Rama Rao being a holder of widow's estate in the disputed property had no power to dispose of the said property by executing the Will and as such the Will is a void one. It has also been noticed earlier that the learned District Judge in his judgment in O. S. No. 8 of .1962 refused to grant the Letters of Administration to the Appellant, Rama Krishna Ray, an the ground that a Letter of Administration was already issued to the Respondents in respect of the same property. Therefore, the learned Judge while holding that the Will Ext. 1 was a genuine one and was duly executed, dismissed the suit. Therefore, the learned Judge while holding that the Will Ext. 1 was a genuine one and was duly executed, dismissed the suit. It follows that if the Appellants succeed an the first paint there would be little difficulty in reversing the decision of the learned District Judge in O. S. No. 8 of 1962. However, before considering this aspect, the contention raised an behalf of the Respondents challenging the finding of the court below regarding the genuine ness of the. Will Ext. 1 is to be considered. Though same argument was advanced an behalf of the Respondents that Reba Debi had no interest in the disputed property since the, property belonged to Rania Rao and the Respondents were entitled to succeed to it under the general law, an ultimate analysis, the position that emerges is that the disputed property belonged to late Jagannath Rao and his widow Rama Rao who died in 1928 had only life interest therein. . Indeed, the Will Ext. 7 starts with the statement that the property dealt with in the document belonged to late Jagannath Rao. Therefore, his widow Rama Rao had the right to the fullest enjoyment of the immovable property which she inherited from her husband. She was also entitled to dispose of the carpus in such property inter vivos for certain restricted purposes. Although she could alienate her own interest in the property far the period of the subsistence of the widow's estate, she could not, however, dispose of the carpus in such property by her Will. If at her death" or when her widow's estate is otherwise determined, it appears that she had not already disposed of the income current or accumulated which shoe was entitled to enjoy while she was alive, such' income will follow the estate from which it arose and will pass to the heirs of her husband See Sarat Chandra Mitra Vs. Charusila Dasi This point, as it appears from the judgment of the court below in O. S. No. 2 of 1976 was raised by the Plaintiff before the court. The court appears to have- brushed it aside holding that such, point could not be considered in the proceeding u/s 263' of the Act since it related to the title of the testatrix to the property. The court appears to have- brushed it aside holding that such, point could not be considered in the proceeding u/s 263' of the Act since it related to the title of the testatrix to the property. The Court further observed that in such a proceeding only matters which fell for consideration were whether the will was a genuine one and whether it was duly and properly executed. Generally speaking, this is undoubtedly the correct position. But the question is if the will set out in the application u/s 263 of the Act is held to be a void one, then can it still be said that the Letters of Administration granted on the basis of such a void document cannot be revoked. There is no dispute that if the testator/testatrix is found to be having no disposable interest in the property then the will was to be held to be a void document. A Full Bench of the Allahabad High Court in the case of Sambhu Dayal and Ors. .v. Basudev Sahai2, held that a person acquires no interest under a will from a Hindu widow in respect of her husband's property held by her as south and a claim based on such a win is unenforceable not only against the next reversioner but even against a person in wrongful possession of the property. A will, unlike a transfer inter vivos, operates only after the death of the testator and since the interest of a Hindu widow holding her husband's property as such terminates upon her death, the interest possessed by her is incapable of devolving upon the legatee. A similar view was taken by the Nagpur High Court in the case of AIR 1934 194 (Nagpur) . The Calcutta High Court in the case of Dhanei Ali Mia and Ors. v. Sobhan Ali and Ors. AIR 1978 Cat 399, construing the provision of Sections 218, 273 and 283 of the Act on the question of title in a proceeding initiated on the application for grant of Letters of Administration held that it is not for the court to decide the question of title. The Court's duty is precisely to consider whether the will had been genuinely made by the testator out of his free volition and it had been properly executed and attested in accordance with law and the testator had testamentary capacity to excute it. The Court's duty is precisely to consider whether the will had been genuinely made by the testator out of his free volition and it had been properly executed and attested in accordance with law and the testator had testamentary capacity to excute it. (underlined is mine ), 6. On careful consideration of the ratio of these decisions, I am of the view that in the facts and circumstances of the present case, the Court below was,not right in holding that the objection relating to Rama Rao's power to dispose of the property by will was not available to be considered by the Court in the proceeding u/s 263 of the Act. In my opinion, the objection in this case does not merely relate to the title of the Testatrix to the property but it concerns the question whether she had, testamentary capacity to execute it. "Testamentary capacity" is not confined merely to the mental and physical fitness of the testator, but the legal capacity for testamentary disposal of the property. If the contention raised by the Respondents is accepted then any body having not even a semblance of interest in the property ea n dispose it of by a Will and on the basis of such a will a letter of probate or a Letter of Administration has to be granted if it is shown that the Will is genuine and' has been duly executed. In such an event the property Will be administered by the person holding' the Letters of Administration though he may be an cut and out imposter having no vestiage of legal interest in the, property till the persons entitled to succeed the property established their right in a regular suit. In my view such an absurd position cannot be countenanced in law. Therefore, a balance has to be struck between a case where the objection relates to the validity of title of the testator and one in which the objection goes to the root of his power, in law to dispose of the property by Will. While in the former case the Will cannot be said to be a void document, in the letter, it will be so. 7. While in the former case the Will cannot be said to be a void document, in the letter, it will be so. 7. In the present case, in addition to the question of Rama Rao's power to dispose of the property by Will, revocation of the letters of administration was sought also on the ground that citation had not been issued to the Appellants though they were vitally interested in the property and thus the mandatory provisions of the Act were not complied with while issuing the letters of administration to the Respondents. This point too, I am constrained to observe, has not been properly dealt with by the Court below while accepting the position that the documents, particularly the order-sheet Ext. 3 do not show that the provisions relating to the general citation had been complied with. The Court fell back on, the presumption that all the official acts were deemed to have been properly done and therefore the general citation was to be deemed to have been complied with. The Supreme Court in the case of Anil Behari Ghosh Vs. Smt. Latika Bala Dassi and Others interpreting the expression "defective in substance" in Clause (a) of the Explanation to Section 263 held that it must mean that the defect was of such a character as to substantially affect the regularity and correctness of the previous proceedings. The Court further observed that the omission to issue citations to persons who should have been appraised of the probate proceedings may well be in a normal case a ground by itself for revocation of the, grant. But this is not an absolute right irrespective of other considerations arising from the proved facts of a case. The Jaw has vested a judicial discretion in the Court to revoke a grant where the Court may have prima facie reasons to believe that it was necessity to have the will proved afresh in the presence 'Of interested parties. The Court 'may refuse to grant annulment in cases where there is no likelihood of proof being offered that the will admitted to probate was either not genuine or had not been validly executed. The Court 'may refuse to grant annulment in cases where there is no likelihood of proof being offered that the will admitted to probate was either not genuine or had not been validly executed. This Court in the case of Ramchandra Dev v. Smt. Chandrabali Dasi 40 (1975) C.L.T. 843, reported in held that in the absence of issue of citations to the Plaintiff who' in' the normal course of events was the reversioner, the gram of probate suffers from incurable infirmity and as sucb should be revoked. 9. The learned Counsel for the Respondents also raised the contention that the challenge to the grant of letters of administration in the present case was barred by the principle of constructive res judicata in view of the decision of this Court in. First Appeal No. 20 of 1968 disposed of on 12-3-1973 where the application filed by Nilamani Dhal u/s 263 of the Act for revocation of the letters of administration granted in, Misc. Case No. 30 of 1959 in favour of the Respondents was rejected. The contention, in my view, has No. .substance. The Appellants in First Appeal No. 399 of 1977 who have filed the application u/s 263 of the Act in O. S. No-2 of 1976 were not parties in the previous proceeding and therefore they are not bound by the decision in that case. Further, the question whether Rama Rao who held widow's estate in the suit properties belonging to her husband Jagannath Rao had any competence to bequeath the property by executing a will is a question of law. As held by me earlier, she had no such power and no one could lay any claim to the properties on the basis of the said will. In such circumstances the Appellants, in my view, could not be denied the opportunity of raising this legal question in the present proceeding on the plea of constructive res judicata, 10. The learned, counsel for the Appellant made an attempt to challenge the findings of the court below relating to the genuineness of the will' executed by late Reba Debi. He placed before me the evidence adduced on behalf of both the parties in O. S. No. 8 of 1962. I have carefully perused and considered the said materials. I find that the assessment of the materials by the court below was correct and proper. He placed before me the evidence adduced on behalf of both the parties in O. S. No. 8 of 1962. I have carefully perused and considered the said materials. I find that the assessment of the materials by the court below was correct and proper. I therefore find no acceptable reason to differ from the findings that the aforesaid will was genuine one and was duly executed by Reba Debi in a sound state of mind. 11. On the foregoing discussions, the conclusion is inevitable that the will executed by late Rama Rao was invalid, since the testatrix being a limited owner had no power to bequeath the property by executing the will and the Appellants have made out good grounds for revocation of the grant of letters of administration in Misc. Case No. 30 of 1959. Consequently, the order of the learned District Judge refusing to grant letters of administration, in favour of the Appellants in O. S. No. 2 of 1974 solely on the ground that the letters of administration granted in Misc. Case No. 30 of 1959 having not been revoked must be set aside. 12. In the result, both the appeals succeed and they are allowed with costs throughout. O. S. No. 8 of 1962 and O. S., No. 2 of 1976 of the Court of the District Judge, Cuttack are decreed. Final Result : Allowed