JUDGMENT : - This Court was pleased to pass an order granting probate on 11th December, 1997 in respect of Matter No. T.S. 107 A of 1991 in respect of a Will executed on 30th August, 1988 of one Saroj Kumar Chatterjee. 2. After granting of probate by this court on 11th December, 1997, three applications were moved before this Hon'ble Court for the purpose of recalling the order of granting probate. 3. First of such application was moved by one Kamal Kumar Banerjee claiming to be one of the Caveators/legal heirs of Saroj Kumar Chatterjee, deceased, on 12th January, 1998 being G.A. No. 120 of 1998. 4. Second application was moved by Kamalesh Bhattacharyya claiming to be executor of a Will dated 31st August, 1988 out of which a Testamentary Suit being T.S. 138A of 1990 is pending before this Court. Such application is dated 27th January, 1998 being G.A. No. 303 of 1998. 5. Third of such application was filed on behalf of one Niladri Bandopadhyay son of late Tapan Kumar Banerjee claiming to be one of the Caveators under the Will dated 30th August, 1988. Such application was made on 5th March, 1998 being G.A. No. 799 of 1998. 6. Cause of action on the part of all the applications are similar in nature. Therefore this court is pleased to take up all the applications for analogous hearing. The judgment and order to be passed hereunder will govern all the three applications. 7. Mr. H.M. Dutt, learned Senior Counsel appeared on behalf of the petitioner in the third application contended that although they have a conflicting interest with the applicant Sri Kamalesh Bhattacharyya under G.A. No. 303 of 1998 in respect of a Will dated 31st August, 1988 subsequent to the date of Will already probated by this Court but he has a right as caveator to contest the cause of granting probate in the proceeding. 8. This court is surprised to know that the petitioner is opposing the execution of the Will on which the probate was granted by this court and also opposing the execution of the Will on which the probate is yet to be granted by the court. 9. Secondly he contended that no citation was served upon his client to appear before the court and to contest the granting of probate in the proceeding. 10. 9. Secondly he contended that no citation was served upon his client to appear before the court and to contest the granting of probate in the proceeding. 10. Thirdly he contended that one of the original caveator died leaving his son Niladri Banerjee and widow Smt. Anjali Banerjee as his heirs but they were not brought on record. 11. Mr. Dutt relied upon section 263 of the Indian Succession Act and submitted that the grant of probate or letters of administration may be revoked or annulled for just cause. He explained that just cause shall be deemed to exist under the explanations and his case was falling under the explanations (b) and (c) read with illustration (VI). 12. He further contended that from exp1'anations it appears that if the grant was obtained fraudulently by making a false suggestion, or by concealing from the court something material to the case or the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant, though such allegation was made in ignorance or inadvertently shall be deemed to exist as 'just cause'. Illustration (VI) also speaks that since probate was granted, a later Will has been discovered. 13. Therefore in view of section 263 alongwith the explanations and illustration it is abundantly clear that order granting probate by this court on 11th December, 1997 in respect of T.S. No. 107A of 1991 has to be recalled and/or set aside. 14. Although this is the 3rd application moved on 5th March, 1998 being G.A. No. 799 of 1998 but surprisingly Mr. G.C. Law, learned Senior Counsel appearing for another petitioner namely Kamal Kumar Banerjee filed first application on 12th .January, 1998 adapted in toto the argument made by Mr. H.M. Dutt. 15. Mr. Pratap Chatterjee, learned Senior Counsel appearing in support of the respondent in whose favour the probate was granted by this court made his submission first in respect of the allegations made by Mr. H.M. Dutt on behalf of the petitioner and supported by Mr. G.C. Law. 16. Mr. H.M. Dutt. 15. Mr. Pratap Chatterjee, learned Senior Counsel appearing in support of the respondent in whose favour the probate was granted by this court made his submission first in respect of the allegations made by Mr. H.M. Dutt on behalf of the petitioner and supported by Mr. G.C. Law. 16. Mr. Chatterjee raised the following points : (l) There is no obligation of the propounder to serve upon the heirs of the caveators who have not filed affidavits in support of the caveat; (II) The executor applied for the probate of the Will dated 30th August, 1988 before this Court in 1991 but no step was taken till 1998 to file an affidavit in support of the caveat although caveat was lodged by Tarun in November, 1992 and by Kamal in January, 1993; (III) As and when caveats were lodged there is no question of service of citations; (IV) Scope of section 263 of the Indian Succession Act with explanations (b) and (c) read with illustration (VI) are inapplicable in the present case; (V) It is unbelievable that the petitioners in the first application had no knowledge of death of their erstwhile Advocate, Mr. R.C. Deb from 1992 to 1997. (VI) The Will dated 31st August, 1988 is under challenge specially when such Will is hit by section 118 of the Indian Succession Act. 17. It appears that attack of Mr. Chatterjee by raising first four points are common attack against both Mr. Dutta's client and Mr. Law's client fifth attack is against Mr. Law's client and the sixth attack, although counted as defence, against Mr. Bhattacharya's client. 18. Now I am dealing with the first four points. According to me unless citations are served no caveat can be lodged or if no citations are served even then caveats are lodged, then it can be presumed that caveators have knowledge of the probate proceedings, therefore, there is no necessity of service of further citations. In other words, service of citations after lodging the caveats will be mere formality. The principle of "audi alterem partem" should have to be followed to give an opportunity but when opportunity has already availed there is no question of further opportunity. Even in a case of regular suit after the service of writ of summons the contesting parties are taking two steps one after another. The principle of "audi alterem partem" should have to be followed to give an opportunity but when opportunity has already availed there is no question of further opportunity. Even in a case of regular suit after the service of writ of summons the contesting parties are taking two steps one after another. Firstly, they are entering upon appearance and thereafter they are filing their respective written statements which can be equated with the probate proceedings i.e. filing of caveat and thereafter filing of affidavit in support of such caveat. In either of the case if any of this conditions are fulfilled by the contesting parties then service of the writ of summons or citations will be mere formality because principle of audi alterem partem is already exhausted. 19. Therefore the question of non-service of citation is not at all a good ground nor the parties proved how they have prevented with sufficient cause from filing affidavits in support of the caveat from November, 1992 or January, 1993 till the date of passing the probate nor endorsed any ground what prevented them from appearing before the court at the time of granting probate. 20. So far the service upon the heirs of one of the caveator, upon death is concerned, I feel it is obligatory on the part of the Advocate of the deceased to perform first duty under Order 22 Rule 10A of the Code of Civil Procedure to intimate the court about the death of the deceased and there is no such explanation about the same. I also find that it is not obligatory to the propounders to bring the heirs of the deceased caveators in the record when such deceased, during his life time did not choose to file affidavit. Therefore, such ground is also inapplicable herein. 21. Next vital point is interpretation of section 263 of the Indian Succession Act. 22. According to Mr. Dutt, the probate was obtained by active concealment of the fact before the court that no other application for grant of probate was pending before the court. He also contended at least the grant was obtained by means of untrue allegations even in ignorance or inadvertently. Illustration (VI) is squarely applies in this case because of the language i.e. since the probate was granted, a later Will has been discovered. 23. Mr. He also contended at least the grant was obtained by means of untrue allegations even in ignorance or inadvertently. Illustration (VI) is squarely applies in this case because of the language i.e. since the probate was granted, a later Will has been discovered. 23. Mr. Chatterjee contended that since they have obtained certificate from this court that no application for grant of probate is pending before this court there is no question of suppression of any material facts. He also contended that by illustration (VI) case of the petitioner cannot be improved because the interpretation of the illustration is that if probate granted by subsequent Will earlier probate will be automatically revoked. 24. According to me, it is correct to say that even if the earlier order granting probate is not recalled but by virtue of granting second 'probate, if any, earlier grant of probate will automatically be annulled or revoked. 25. I also observe that principle since probate was granted, a later Will has been discovered' cannot be equated with a probate has been granted in respect of one Will but a probate is yet to be granted in respect of another Will but result of subsequent probate will be, in any event, guiding factor of first probate, if relates to same testator and same properties. 26. An incidental question cannot be ignored that nobody had come before this court before granting probate but after granting the probate all of them one after another made applications for recalling and/or setting aside the grant of probate. Surprisingly both the petitioners of the first and last petitions are neither beneficiaries under first Will nor beneficiaries under second Will. Therefore the action of the petitioners either consorted action or loan action cannot be free from suspicion. 27. As to the question of sufficient cause an explanation put before this court by the petitioner in the first application that they were not aware about the death of their erstwhile Advocate-on-record, Mr. R.C. Deb from 1992 to 1997 which is not, prima facie, believable as such the court is not accepted the explanation. 28. Before parting with the case I have to deal with the question of interpretation of section 118 of the Indian Succession Act since this is the point of dispute in the second application being G.A. No. 303 of 1998. 29. According to Mr. 28. Before parting with the case I have to deal with the question of interpretation of section 118 of the Indian Succession Act since this is the point of dispute in the second application being G.A. No. 303 of 1998. 29. According to Mr. Kamalesh Bhattacharyya, learned Counsel appearing for the petitioner therein that on 31st August, 1988, subsequent to the death of the purported Will, a Will was made by the deceased in favour of a religious and charitable organisation on whose behalf he is appearing. Such Will has been filed before this court for grant of probate and now was set down as a contentious cause i.e. registered as a suit and pending before this Hon'ble Court. 30. Mr. Bhattacharyya also reiterated the scope and ambit under section 263 of the Act. 31. Mr. Chatterjee opposed such submissions made by Mr. Bhattacharyya by raising a point that section 118 of the Indian Succession Act squarely applies in the case of the subsequent Will. Therefore subsequent Will is not at all prima facie genuine Will. 32. The case was rested thereon for the purpose of delivering the judgment. But subsequently Mr. Bhattacharyya mentioned this matter with notice to the parties by intimating the court that the section 118 of the Indian Succession Act has no application in case of Hindus, therefore, the subsequent Will may not be construed as prima facie bad Will. I have not called upon to decide as to whether the subsequent Will wherein grant of probate is still pending before this court is genuine Will or not but I have called upon to dispose of the applications for the purpose of recalling and/or setting aside of an order passed on 11th December, 1997 wherein a probate was granted in respect of a Will. 33. Therefore parties are at liberty to agitate the point as to applicability and/or scope and ambit of section 118 of the Indian Succession Act at the time of disposal of the subsequent probate application being contentious cause i.e. a suit. 34. Since I have already observed that the question of annulment and/or revocation of the earlier probate is dependable upon the result of the subsequent probate proceedings, there is no scope of recalling or setting aside the order passed by the court granting probate on 11th December, 1997. 35. Under the circumstances, the applications are dismissed. 34. Since I have already observed that the question of annulment and/or revocation of the earlier probate is dependable upon the result of the subsequent probate proceedings, there is no scope of recalling or setting aside the order passed by the court granting probate on 11th December, 1997. 35. Under the circumstances, the applications are dismissed. No order is passed as to costs. 36. Parties are to act on a signed copy minute of the operative part of the order. Applications are dismissed.