Judgment ( 1. ) THIS appeal under Order 43 Rule 1 (d) of the Code of Civil procedure {for short the CPC} read with Section 299 of the Indian succession Act, 1925 {for short the Act} has been filed against the order dated 05. 04. 2005 passed by the 16th Additional District Judge, indore in M. J. C. No. 04/2005 (Old No. 3/2002 ). ( 2. ) BRIEFLY stated the respondent filed an application under Section 372 of the Act (which ought to have been filed under Section 276 of the Act) for grant of Probate of the Will said to have been executed by his brother deceased Daniel Robert in his favour. The application was registered as Probate Case No. 9/98, (New No. 31/2000 ). On being noticed the appellants appeared and participated in the few proceedings. However, after participating in few proceedings they remained absent and as such the Trial Court proceeded ex-parte against them. The Trial Court after recording ex-parte evidence of the respondent and his witnesses vide its order dated 07. 01. 2002 granted probate in favour of the respondent. On getting the knowledge of passing of said ex-parte order dated 7. 01. 2002 the appellants moved an application on 14. 01. 2002 under Order 9 Rule 13 read with section 151 of the CPC for setting aside the ex-parte order and also for revocation of probate, if issued in favour of the respondent. ( 3. ) THE aforesaid application MJC No. 3/2002 (New No. 04/2005)was opposed by the respondent by filing reply. The 4th Additional district Judge, recorded the evidence and fixed the case for arguments. At that stage the appellant filed an application dated 25. 6. 2004 under Order 6 Rule 17 read with Section 151 of the CPC seeking amendment in the application dated 14. 01. 2002 so as to make it as an application under Section 383 of the Act read with Order 9 rule 13 of the CPC and also sought amendment in the application so as to treat it as an application for revocation of order dated 7. 1. 2002 granting probate to the respondent and for revocation of certificate of probate granted in favour of the respondent. ( 4. ) THE said application dated 25. 6. 1. 2002 granting probate to the respondent and for revocation of certificate of probate granted in favour of the respondent. ( 4. ) THE said application dated 25. 6. 2004 filed by the appellant seeking amendment in the application under Order 9 Rule 13 of the cpc was considered and decided by the 4th Additional District Judge, indore vide order dated 17. 08. 2004. While rejecting the said amendment application, the learned Court below observed that mentioning of wrong section in the said application dated 14. 1. 2002 will not come in the way of the Court for deciding the case by applying correct provision of law. It further observed that while deciding the case the Court has to consider the subject matter of the application and, therefore, the amendment as sought for, is not necessary also. However, on 04. 02. 2005 the case was transferred to the Court of XVI Additional District Judge. After hearing the arguments the learned Judge rejected the appellants application dated 14. 1. 2002 by the impugned order dated 5. 4. 2005 holding that no case for setting aside the ex-parte order is made out. Feeling aggrieved the appellants have filed this miscellaneous appeal. ( 5. ) SHRI G. M. Chaphekar, learned senior counsel for the appellants argued that the Will was executed by the deceased on 16. 09. 1991 and not on 16. 01. 1991 as was stated by the respondent in his application for grant of Probate. He submitted that this was a deliberate misstatement of the fact on the part of the respondent so that the court may not have prima facie doubt about the execution of the Will by the deceased who died on 17. 9. 1991. He further argued that the deceased Testator of the Will was suffering from Blood Cancer and was admitted on 15. 9. 1991 in the T. Choithram Hospital, Indore and was kept in isolation on account of repeated vomiting of fresh Blood. He submitted that the executor of the Will on account of his serious ailment was not in a fit mental and physical condition so as to execute the Will. According to him, all these material facts were concealed by the respondent in the application for grant of Probate. He submitted that the executor of the Will on account of his serious ailment was not in a fit mental and physical condition so as to execute the Will. According to him, all these material facts were concealed by the respondent in the application for grant of Probate. These facts were also not brought on record in the Probate case by way of oral evidence of the respondent himself and was also not stated by any of the witnesses. He, therefore, submitted that when these facts were brought to the notice of the Court below by way of an application under Order 9 Rule 13 read with Section 151 of the CPC and also in the application under Order 6 Rule 17 of the CPC, it was incumbent upon the Court below to have gone into this question as to whether there exists a just cause for revocation of grant of Probate instead of only dealing with the question whether the appellants have made out a case under Order 9 Rule 13 of the C. P. C. The learned Senior counsel on the strength of well settled principle of law on the basis of various judgments of the Supreme Court including H. Venkatachala Iyengar Vs. B. N. Thimmajamma ( AIR 1959 SC 443 ) and in the case of Gurdial Kaur Vs. Kartar Kaur and others (AIR 1998 SC 861) argued that Court below ought to have satisfied that the will was not only executed and attested in manner required under the Act but was also required to satisfy as to whether the said will was the product of the free volition on the part of executor and the executor had executed the same after knowing and understanding the contents of the Will. He submitted that when sufficient material was available on record the Trial Court by not examining the same committed illegality. He further argued that the Court below while rejecting the application dated 25. 06. 2004 seeking amendment in the application dated 14. 1. 2002 had already made the observations as stated above could not have rejected the application only on the ground that no case for setting aside ex-parte order is made out, but should have considered the matter, in the light of its observation made in the order dated 17. 8. 2004. ( 6. 1. 2002 had already made the observations as stated above could not have rejected the application only on the ground that no case for setting aside ex-parte order is made out, but should have considered the matter, in the light of its observation made in the order dated 17. 8. 2004. ( 6. ) SHRI Prakash Verma, learned counsel appearing for the respondent on the other hand argued that when the application was filed under Order 9 Rule 13 of the CPC there was no option to the court below except to decide the same in accordance with the provision contained in Order 9 Rule 13 of the CPC. He submitted that the appellants having not chosen to invoke the provisions of revocation of the Probate cannot be permitted to agitate the said ground in this appeal which has been filed against the order rejecting the appellants prayer for setting aside the ex-parte order. ( 7. ) HEARD the learned counsel for the parties and perused the record. ( 8. ) IN order to deal with the question involved in this Misc. Appeal it would be appropriate to examine the relevant provisions of the Act. In fact Section 372 of the Act under which the respondent filed the application is not attracted for grant of Probate. It is also equally correct to say that in the application dated 25. 06. 2004 filed by the appellants to amend the application dated 14. 1. 2002, they have also quoted a wrong Section i. e. Section 383 of the Act whereas for revocation of Probate Section 263 is attracted. The Section 372 is attracted for application for grant of succession certificate and Section 383 deals with revocation of succession certificate. However, mere mention of wrong provision of law itself would not be a ground to deny to the relief. ( 9. ) SECTION 276 of the Act provides for petition for Probate. Section 263 of the Act provides for revocation or annulment of the grant of probate or letters of administration for just cause which reads as under :- "263. Revocation or annulment for just cause The grant of probate or letters of administration may be revoked or annulled for just cause. Section 263 of the Act provides for revocation or annulment of the grant of probate or letters of administration for just cause which reads as under :- "263. Revocation or annulment for just cause The grant of probate or letters of administration may be revoked or annulled for just cause. Explanation Just cause shall be deemed to exist where - (a) the proceedings to obtain the grant were defective in substance; or (b) the grant was obtained fraudulently by making a false suggestion, or by concealing from the Court something material to the case; or (c) the grant was obtained by means of an untrue allegation of a fact essential in the point of law to justify the grant, though such allegation was made in ignorance or inadvertently; or (d) the grant has become useless and inoperative through circumstances; or (e) the person to whom the grant was made has willfully and without reasonable cause omitted to exhibit an inventory or account in accordance with the provisions of chapter VII of this Part, or has exhibited under that chapter an inventory or account which is untrue in a material respect. " ( 10. ) SECTION 268 provides that the proceedings of the Court of the district Judge in relation to the granting of Probate and letters of administration shall, save as hereinafter otherwise provided; be regulated, so far as the circumstances of the case permit, by the Code of Civil Procedure, 1908 (5 of 1908 ). ( 11. ) IN the case of H. Venkatachala Vs. B. N. Thimmajamma (supra) the Supreme Court has held that the question as to whether the Will set up by the propounder is proved to be the last Will of the testator has to be decided in the light of provisions contained in section 67 and 68 read with Section 47 of the Evidence Act. It also held that Sections 59 and 63 of the Indian Succession Act are also relevant. The Supreme Court taking note of another important feature in the case of proving the Will in Paras 20, 21 and 22 held as under :- "however, there is one important feature which distinguishes will from other documents. It also held that Sections 59 and 63 of the Indian Succession Act are also relevant. The Supreme Court taking note of another important feature in the case of proving the Will in Paras 20, 21 and 22 held as under :- "however, there is one important feature which distinguishes will from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a Court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testators mind and his signature as required by law, Courts would be justified in making a finding in favour of the propounder. In other words the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. In other words the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounders case that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testators mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances or, the will may otherwise indicate that the said dispositions may not be the result of the testators free will and mind. In such cases the Court would naturally expect that all legitimate suspicious should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and unless it is satisfactorily discharged, Courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will and in such circumstances it will be a part of the initial onus to remove any such legitimate doubts in the matter. Apart from the suspicious circumstances above referred to in some cases the wills propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicions circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicions circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. It is in connection with wills that present such suspicious circumstances that decision of english Courts often mention the test of the satisfaction of judicial conscience. The test merely emphasizes that, in determining the question as to whether an instrument produced before the Court is the last will of the testator, the Court is deciding a solemn question and it must be fully satisfied that it has been validly executed by the testator who is no longer alive. It is obvious that for deciding material question of fact which arise in applications for probate or in actions on wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. It may, however, be stated generally that a propounder of the will has to prove the due and valid execution of the will and that if there are any suspicious circumstances surrounding the execution of the will the propounder must remove the said suspicions from the mind of the Court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties. : AIR 1946 PC 156 Rel. on. " ( 12. ) IN Probate Case No. 9. 98 (New No. 31/2000) since the appellants failed to appear after participating in the few proceedings the Trial court proceeded ex-parte against the appellants. According to the appellants on receiving knowledge of the ex-parte order, they moved an application under Order 9 Rule 13 read with Section 151 of the c. P. C. In paragraph 5 of the said application the appellants stated that on the date of execution of the Will the physical and mental condition of the Testator of the Will was such that he was unable to speak, understand or execute the Will. In the said application, a prayer was also made to cancel the certificate of Probate, if issued, in pursuance of the order dated 07. 01. 2002. In the application under section 151 of the CPC and in the application under Order 6 Rule 17 of the CPC it was alleged by the appellants that the said Will is forged. Apart from this it was also alleged that the Testator of the will was admitted in T. Choithram Hospital and was under treatment. It was also stated that in view of this, in the absence of the statement of the Doctor that the Testator of the Will Daniel was in a fit condition to execute the Will, the order of Probate could not have been passed. In the applications prayer to revoke the order of Probate dated 07. 01. 2002 and to revoke the certificate of Probate was made. The Trial Court while rejecting the application dated 25. 06. 2004 for amendment made it clear that appropriate orders will be passed taking note of the subject matter of the application by applying correct provisions of law and had also observed that, in the circumstances, the amendment sought for is not necessary even. However, on perusal of the impugned order, it is clear that the Court below has considered the application only under Order 9 Rule 13 of the CPC and did not consider as to whether any case for revocation of Probate is made out or not. ( 13. ) IN my considered view, having regard to the facts and circumstances brought on record by the appellants in their aforesaid applications and which has also come in the evidence recorded in the proceedings under Order 9 Rule 13 of the C. P. C. the Trial Court should have exercised the powers vested in it under Section 263 of the Act and should have passed appropriate orders. The powers of the courts under Section 263 of the Act are wide enough to revoke or annul the grant of Probate for just cause. The Court was duty bound to examine as to whether the just Cause was existing. The powers of the courts under Section 263 of the Act are wide enough to revoke or annul the grant of Probate for just cause. The Court was duty bound to examine as to whether the just Cause was existing. As observed not only in the averments made in the application under Order 9 Rule 13, Order 6 Rule 17 and Section 151 of the C. P. C. but also in the evidence recorded by the Trial Court on the application under Order 9 rule 13 of the CPC it has come that the Testator of the alleged Will was admitted on 15. 9. 1991 in the Hospital on account of his serious ailment of Blood Cancer and died on 17. 9. 1991 immediately on the next date of executing the alleged Will dated 16. 9. 1991. This aspect was not disclosed by the respondent in his application for grant of probate that the Testator was admitted in the Hospital on 15. 9. 1991 and died of Blood Cancer on 17. 9. 1991 in the Hospital. Neither the respondent nor his witnesses who were examined in the Probate case disclosed these facts. In the circumstances, when these facts have come on record in the proceedings under Order 9 Rule 13 and also in the application for amendment the Court below should have recorded a finding as to whether non-disclosure of these facts would amount to concealment from the Court something material to the case so as to invoke jurisdiction of revocation of grant of Probate for just cause. Having failed to do so in my considered view the Trial Court has committed gross illegality and injustice. ( 14. ) IN the circumstances, I am inclined to allow this appeal and remand the matter to the Trial Court for deciding the question as to whether the respondent by not disclosing the fact that the deceased was admitted in T. Choithram Hospital on 15. 09. 1991 and the Will was executed on 16. 9. 1991 when he was admitted in the Hospital for treatment of Blood Cancer has concealed something material to the case which would entail revocation of Probate. ( 15. 09. 1991 and the Will was executed on 16. 9. 1991 when he was admitted in the Hospital for treatment of Blood Cancer has concealed something material to the case which would entail revocation of Probate. ( 15. ) ACCORDINGLY, the impugned order is set aside and the appeal is allowed by remanding the case to the Trial Court for fresh decision of the matter in the light of the aforesaid direction, after affording opportunity of leading further evidence to the parties, if they so desire. The documents filed by the appellants along with I. A. No. 4572/08 filed under Order 41 Rule 27 of the CPC be sent to the trial Court along with the record of the case. No orders as to the costs.