Judgment :- 1. This is an application under Sec. 263 of the Indian Succession Act for revoking the Probate granted on 24-8-1994 in O.P. No. 7/94 of the Will dated 3-1-1985 of the testatrix Sita Iyyappa widow of late Lt. Gen. A.C. Iyyappa, and for a direction to the petitioner to prove the Will in solemn form. 2. The applicant is one of the brothers in-law of the deceased. He was respondent No. 3 in O.P. No. 7/94, that O.P. having been filed on 4-11-1993. The applicant had been served with citation in that O.P. on 20-6-1994. A copy of the Will had also been sent to him by his brother Sri. A.C. Muthanna, senior advocate, even before the O.P. was instituted. The applicant had declined the request of his brother for filing an affidavit of consent in that O.P. In that O.P. the other respondents were A.C. Muthanna and his sister Mrs. M.T. Medappa. They have filed their affidavits of consent to the grant of probate. This Court on 24-8-94 granted Probate holding that the testatrix had executed a Will at Madras on 3-1-1985 in the presence of Sri. A.C. Muthanna and N. Shanker who had filed their affidavits regarding the due execution and attestation of the will, as they are the attestors of the will. The Court also took note of the fact that Mrs. Medappa had filed an affidavit of consent as one of the three heirs of the deceased under Sec. 15(1)(b) of the Hindu Succession Act, and service had also been completed on the third respondent, in the O.P. who is applicant herein. 3. The applicant filed a Caveat on 29-8-94 five days after the Probate was granted. Thereafter, Application No. 4911/94 was filed for stay of proceedings in O.P. No. 7/94. That application was supported by an affidavit of the counsel who appeared for the applicant Mr. P.J. George wherein he had averred that he had been instructed to file caveat, that he had received the Caveat as also the vakalat duly signed by his client before Probate was granted, that he had entrusted those papers to his clerk who thereafter fell ill and papers could not be filed in the Registry before 24-8-1994 and it was only on 29-8-94 when his clerk went to file Caveat that the counsel came to know that probate had already been granted. That application for stay of further proceedings in O.P. 7/94 was dismissed on 23-11-1994. 4. On 9-12-1994 this application was filed to revoke the Probate so granted on the ground that the document is not a genuine document and was not executed at Madras. The applicant has pointed out certain alleged errors in the Will describing some of the legatees as Mrs. even though they had not been married as on the date of execution of the Will which errors, according to the applicant, raise doubt regarding the genuineness of the Will. It is also the contention of the applicant that there were no electronic typewriters being used in India in the year 1985 and that the fact that the Will is typed with such an electronic typewriter, gives room for doubt regarding its genuineness. The further case is that the affidavit of assets does not include most of the moveable assets mentioned in the Will. The jurisdiction of the Court is also questioned on the ground that the property of the deceased was outside the jurisdiction of this Court except for two small fixed deposits of Rs. 2500/- each made in the name of the deceased in a company in Madras known as “Exrely Finance Limited” on 28-7-1993, about five days prior to the date of death of the deceased, and a date on which according to the applicant, the deceased was in Coma. The applicant has also alleged that the attestor to the Will who has also drafted the Will namely, his elder brother Sri. A.C. Muthanna was hostile and was supporting their sister Mrs. Medappa to the detriment of the applicant. According to the applicant, the contents of the Will are contrary to the desire of late Lt. Gen. A.C. Iyyappa, the husband of the deceased and the elder brother of the applicant. The applicant has stated that he “. naturally expected that on the death of the testator herein the rest of the estate inherited by her from her husband, my brother late Lt. Gen. A.C. Iyappa would devolve on me”. 5. The allegations so made regarding the jurisdiction of this Court to grant probate of the Will, the genuineness of the Will and the place of execution, have been denied, by the respondents. The fact that there are some typographical errors in the Will are admitted. Gen. A.C. Iyappa would devolve on me”. 5. The allegations so made regarding the jurisdiction of this Court to grant probate of the Will, the genuineness of the Will and the place of execution, have been denied, by the respondents. The fact that there are some typographical errors in the Will are admitted. The fact that the affidavit of assets is not as complete as it ought to have been, is also admitted. 6. A detailed counter-affidavit has been filed by one of the executors Dr. K.T. Achaya. An affidavit of by A.C. Muthanna is annexed to that counter-affidavit. The written instructions given to him by the Testatrix for preparing the Will copy of which has been sent by him to the applicant before this application was filed, has also been produced along with the said affidavit. 7. Under the Will bequest have been made to several nieces and nephews of the deceased testatrix Sita Iyyappa who was childless. Substantial properties owned by her which properties she had received under the Will of her late husband Lt. Gen. A.C. Iyappa, brother of the applicant and Sri A.C. Muthanna and Mrs. Medappa, were bequeathed by her to her nieces and daughters of her sister-in-law. The share of her husband in the estate in Coorg was bequeathed to the applicant herein. According to the applicant, he has expected to be the sole legatee of all the properties which had been inherited by the testatrix from her niece husband Lt. Gen. Iyyappa. 8. In the background of these facts, the question that arises for consideration is as to whether the applicant has made out a just cause for revoking the probate already granted. 9. It was submitted by Sri S. Govind Swaminathan, learned Senior Counsel appearing for the respondent that the application is not maintainable as the applicant had been served with a citation before Probate was granted, and he had not filed caveat as also affidavit within the time allowed by law, though a citation had been served on the applicant on 20-6-1994 and Probate came to be grafted only two months thereafter. The applicant had therefore failed to utilise the opportunity that had been provided. The applicant had therefore failed to utilise the opportunity that had been provided. Counsel therefore submitted that the applicant is estopped from raising any objection to the Probate and is not entitled to invoke Order 25, Rule 62, of the Original Side Rules as also Sec. 263 of the Indian Succession Act for seeking revocation. 10. Counsel in this context relied upon two decisions of this Court — one by Sadasivam, J. in the case of Vijayakumari v. Ellappa Chettiar ( 1965 (2) M.L.J. 226 = 78 L.W. 422) wherein it was held that where a person after being served with notice enters caveat he should file affidavit within eight days. If he fails to do so, he cannot take advantage of his default and subsequently come forward with an affidavit and ask for the petition to be registered as a suit under Order 25, Rule 62, of the Original Side Rules. Counsel also invited my attention to the decision of a Division Bench of this Court in the case of G. Shanmugham Chetti v. Chinnammal (AIR-1978 Mad. 304) wherein it was held that an applicant who had the full opportunity of putting forward her just cause even at the time when she was served with the citation, and did not do so for reasons known to her and she cannot be permitted to invoke the just and equitable rule in Sec. 263 of the Act and ask the Court to revoke the original grant. The Court also observed at para 17 of the judgment as under: “Since the respondent should be deemed to have had full knowledge of the proceedings initiated by the appellants in Court in O.P. No. 287 of 1978 and since she failed to make any effort much less earnest effort to enter a caveat and as in the background of events she should be deemed to have avoided a contentious proceeding since she could not substantiate it in her earlier litigation and since she failed to act at a time when she should have and for the reasons that there was a Will dated 17-3-1966 and for all the reasons above stated, we allow this appeal. .”. 11. The conclusion reached by the Division Bench did not rest solely on the ground that the application under Sec. 263 was not maintainable in view of the caveat not having been filed despite service of citation. .”. 11. The conclusion reached by the Division Bench did not rest solely on the ground that the application under Sec. 263 was not maintainable in view of the caveat not having been filed despite service of citation. The fact that a person served with citation had failed to file caveat and follow up the Same with an affidavit, is an important circumstance to be taken into account in deciding as to whether a just cause is made out. 12. The application cannot be dismissed solely on the ground that the applicant had an opportunity to file caveat but did not do so irrespective of the reason for such failure. Sec. 263 of the Act does not place an embargo on the person who had failed to file caveat, in time making an application for revocation if they are able to show just cause for the same. Similarly Order 25, Rule 62, of the Original Side Rules doe not also prohibit the persons who had failed to file caveat in time subsequently filing application for revocation on the ground of just cause for such revocation exists. 13. Learned counsel for the respondent submitted that the applicant if he was aggrieved by grant of Probate on 24-8-1994 ought to have invoked Order 9, Rule 13, C.P.C., and asked for setting aside the ex parte order as he had failed to make such an application, the applicant is debarred from invoking Sec, 263 of the Act. Learned counsel in this context referred to a number of decisions which held that provision of Order 9, Rule 13, C.P.C., can be invoked. Counsel referred to I.L.R. 46 Mad. 768 = 45 M.L.J. 346 = AIR 1924 Mad. 1 = 74 I.C. 155 and I.L.R. 52 Mad. 899 wherein it was held that if an order was passed ex parte and that order had the force of a decree, an application to set it aside would be maintainable. Counsel also referred to I.L.R. 1879 Calcutta 360 ( Komol Luchun Dutt v. Nilruttun Mundle ) wherein it was held that grant of probate is a decree of a Court which no other Court can set aside. Counsel also referred to I.L.R. 1879 Calcutta 360 ( Komol Luchun Dutt v. Nilruttun Mundle ) wherein it was held that grant of probate is a decree of a Court which no other Court can set aside. Reference was made to A.I.R. 1984 Calcutta 16 ( Balai Lall Banerjee v. Debaki Kumar Ganguly ) wherein it was held that a proceeding for grant of probate or Letters of Administration is not strictly a suit though in some cases where the grant is opposed it is deemed as such, and the order passed in such a proceeding may have the force of a decree, but it is not a decree not having been passed in a suit. In A.I.R. 4971 Patna 391 ( Tribeni Kuer v. Shankar Tiwari ), it was held that Court has power to set aside an ex parte order revoking a Probate. This Court in the case reported in 1991(2) MLJ 86 = 1991-2-L.W. 487 ( Alagammal v. Rakkammal ) however distinguished the judgment of a Civil Court and Probate Court. In the decision reported in A.I.R. 1995 Delhi 128 ( Smt. V. Prabha v. The State ), it was held that an application under Order 9, Rule 7, C.P.C., would also be maintainable to re-call the ex parte order in probate proceedings. 14. Learned counsel further contended that if Order 9, Rule 13, is applicable, period of limitation is that provided under Article 123 of the Limitation Act and this application having been filed beyond the time prescribed therein, the application is barred by time. 15. The Probate granted by the Court though a final order made in Civil proceedings, cannot be equated to a decree in a civil suit in all respects and for all purposes. Provisions of C.P.C. cannot override the provisions of the substantive law, namely Indian Succession Act. Sec. 263 of the Succession Act does not prohibit an application being made for revoking the probate for just cause if the applicant had suffered an ex parte order and had failed to invoke Order 9, Rule 13, to have the same set aside. Provisions of C.P.C. cannot override the provisions of the substantive law, namely Indian Succession Act. Sec. 263 of the Succession Act does not prohibit an application being made for revoking the probate for just cause if the applicant had suffered an ex parte order and had failed to invoke Order 9, Rule 13, to have the same set aside. The emphasis in Sec. 263 is on the just cause and not mere default, if any, committed by the applicant at an earlier point of time unless the Court finds that having regard to the circumstances of the case, such default disentitles the applicant to establish the just cause in a proceeding under Sec. 263 of the Act. An application under Order 9, Rule 13, C.P.C., even though maintainable to have the ex parte order set aside is only in the nature of alternative or additional remedy available to the applicant and does not debar the applicant from invoking the beneficial provision of Sec. 263 of the Act. 16. No period of limitation is prescribed under Sec. 263 of the Act. It however does not imply that an application may be made under that Section at any point of time. The application must be made within a reasonable time and the question as to whether the delay is so inordinate as to disentitle the applicant from invoking the provision, is a question of fact to be determined by the Court having regard to the facts and circumstances of each ease. Art. 137 prescribes a period of three years as the period of limitation, such period to be computed from the date when the date of the right to apply accrues. 17. The delay of four months in filing this application cannot be regarded as so inordinate as to result in the application being dismissed at the threshold. The applicant had also filed Application No. 4911/94 which was pending till 4-11-1993. This application was filed on 19-12-1994. The application cannot be said to have been filed after inordinate delay. 18. Learned counsel for the respondent submitted that even when the application is to be examined on merits, no case had been made out by the applicant for revoking the Probate granted. This application was filed on 19-12-1994. The application cannot be said to have been filed after inordinate delay. 18. Learned counsel for the respondent submitted that even when the application is to be examined on merits, no case had been made out by the applicant for revoking the Probate granted. Counsel invited attention to the observation of the Supreme Court in the case of Anil Behari v. Latika Bala Dassi (A.I.R. 1955 Supreme Court 566) wherein it was observed: “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.” 19. Learned counsel for the applicant submitted that the applicant had not admitted the genuineness of the Will, that according to the applicant, the Will could not have been executed at Madras and the errors in describing some of the legatees as “Mrs.” instead of, “Miss” would also cast doubt on the genuineness of the Will. The further contention was that bequest made under the Will was not in the manner that the applicant had expected it to be as the applicant had been excluded in respect of the bulk of the estate which according to him, the deceased husband of the Testatrix had promised to bequeath to the applicant. Counsel also contended that the inventory exhibited is untrue in material respects. 20. Learned counsel for the respondent submitted that the attestors of the Will both of whom are practising counsel of this Court, one of them being senior counsel, had filed their affidavits regarding due attestation and execution of the Will at Madras. Sri A.C. Muthanna who drafted the Will and who is also an attestor to the Will, had filed an elaborate affidavit setting out the entire family history as also all the details regarding the circumstances in which the Will came to be drafted and executed at Madras which would show that the Will was drafted on the basis of the instructions given by the Testatrix herself, that the Will was typed in a electronic typewriter belonging to Mrs. Preethi Swaminathan who had acquired the typewriter in the year 1983, and that the Will was executed at the residence of Sri A.C. Muthanna and attested by his junior. Along with the affidavit, written notes given to Mr. Preethi Swaminathan who had acquired the typewriter in the year 1983, and that the Will was executed at the residence of Sri A.C. Muthanna and attested by his junior. Along with the affidavit, written notes given to Mr. A.C. Muthanna by the Testatrix has also been filed. It has also been averred that copies of those notes had been given to the applicants son when he called on Sri A.C. Muthanna prior to the filing of this application. The applicants affidavit is silent with regard to these facts. Even after the affidavits of Sri A.C. Muthanna and the executor were filed, no further affidavit has been filed by the applicant disqualifing the correctness of any of the statements made in the affidavit of Sri Muthanna. The applicant has not disputed the fact that the Will bears the signature of the Testatrix. The applicant has merely asserted that to his knowledge the Testatrix did not visit Madras. The applicant, a resident of Coorg was not living with the Testatrix. The Testatrix was residing at Bangalore. There had been some disagreement between the applicant and his elder brother, the deceased husband of the Testatrix The applicant could not have had knowledge of the movements of his sister-in-law who was residing in Bangalore and the vague assertion that she could not have visited Madras, is not sufficient to doubt the execution of the Will at Madras. The affidavit filed by Sri Muthanna has categorically states that the Testatrix had come to Madras and she executed the Will at his residence and that he attested the document. Sri Muthanna is not a beneficiary under the Will and nothing has been said against him by the applicant except an assertion that Sri Muthanna is hostile to the applicant. 21. There is therefore no reason to doubt the fact that the Will was executed by the testatrix at Madras and has been duly attested. It is not the case of the applicant that the testatrix was incapable of executing the Will in the year 1985 when it came to be executed. The written instructions produced along with the affidavit of Sri Muthanna are in the handwriting of the testatrix here self. A bare perusal of it would reveal that the testatrix was in sound and disposing state of mind and was not physically incapable of executing a Will at the time the Will was executed. 22. The written instructions produced along with the affidavit of Sri Muthanna are in the handwriting of the testatrix here self. A bare perusal of it would reveal that the testatrix was in sound and disposing state of mind and was not physically incapable of executing a Will at the time the Will was executed. 22. As regards the fact that the Will was typed on an electronic typewriter, the applicants assertion that such typewriters were not available in India in the year 1983, by itself is hardly sufficient to doubt the genuineness of the Will. Sri Muthanna in his affidavit has stated that the Will was typed on the electronic typewriter owned by Mrs. Preethi Swaminathan who had acquired the machine in the year 1983. 23. The errors in describing correctly the marital status of some of the legatees by itself, does not raise doubt regarding the genuineness of the Will. In the Will, the Testatrix had made a bequest of certain of her moveables to a number of nieces collectively and while enumerating their names, prefix of Miss or Mrs. may not have been accurately stated. That by itself does not cast doubt on the genuineness of the Will. 24. The executor in his affidavit has stated that the deposits which had stood in the joint names of the executor and the testatrix were realised by the executor as they were payable to the survivors of the testatrix and dealt with in accordance with the wishes of the testatrix. He also stated that many of the moveables which had been owned by the testatrix had been distributed by her during her life- time. The inventory exhibited by the executor omitting these items therefore, cannot be said to be so materially defective or that the omission to refer to those items was without reasonable cause, so as to warrant revocation of the probate. 25. The applicant has not disputed the fact that some part of moveables belonging to the testatrix was within the jurisdiction of this Court at the time the Probate was granted. 25. The applicant has not disputed the fact that some part of moveables belonging to the testatrix was within the jurisdiction of this Court at the time the Probate was granted. Sec. 270 of the Indian Succession Act vests a discretion in the Court to entertain a petition for grant of Probate or Letters of Administration where any property moveable or immoveable is within the jurisdiction of the Court and it is not essential that the testator or testatrix as the case may be, should have had his or her fixed place of abode within the jurisdiction of the Court. The fact that certain fixed deposits which are relatively small sums, were in the name of the testatrix within the jurisdiction of this Court, is not disputed by the applicant. It is not his ease that deposits were not made or that they did not stand in the name of the testatrix at the time of her demise. 26. The real grievance of the applicant is that his expectation that he would be the sole legatee under the Will of his sister-in-law, had not been fulfilled. Sri Muthanna in his affidavit, has stated that the relations between the husband of the testatrix Lt. Gen. A.C. Iyappa and the applicant were none the cordial by reason of the manner in which the applicant had dealt with some of the properties which had belonged to the applicant and late Lt. Gen. Iyappa. He has also stated that late Lt. Gen. Iyappa in his Will had not provided that after the life-time of his wife, his house at Bangalore or any moveables, should thereafter go to the applicant herein. The applicant has not disputed the correctness of the statement so made in the affidavit of Sri Muthanna. Mere disappointment on the part of the applicant for not having received what he thought would be given despite lack of cordial relationship among him, his brothers and sister, cannot constitute just cause for revoking the Probate already granted. 27. No case has been made out for revoking the Probate already granted. Application is dismissed.