Judgment : PINAKI CHANDRA GHOSE, J. This appeal is directed against a judgment and/or order dated 10th October, 2002 passed by the Honble Single Judge revoking a grant of Probate issued by the Court on 10th February, 1987. The said order was passed on an application filed by the respondent No.1 Jyotsana Rajgarhia. The facts of the case briefly are as follows: On 28th December, 1973 one Anirudha Kr. Himatsingka published a Will bequeathing his all property to his wife Usha Himatsingka. Mr. Bhagwati Prasad Himatsingka was appointed as an Executor under the said Will. On 13th April, 1974 Anirudha Kr. Himatsingka died leaving behind his two daughters namely Anita and Jyotsana and the widow Usha Himatsingka. On 17th September, 1981 he said Usha Himatsingka published her last Will. The said Will was witnessed and attested by her daughter, Anita Fatehpuria and Shyama Poddar, Advocate. On 3rd October, 1981 Usha Himatsingka, died. Usha, by her said Will bequeathed all her properties in favour of Dipak Kumar Himatsingka. Dipak Kumar Himatsingka was appointed as an Executor under the said Will. On 13th November, 1985 Anita Fatehpuria wrote a letter in her handwriting to Bhagwati Prasad Himatsingka forwarding a sealed envelope and stated that the said sealed envelope was left behind by her mother Usha Himatsingka, since deceased with an express instruction to deliver the same to Bhagwati Prasad Himatsingka. It appears that the said envelope contained the Will in question. On 15th January, 1987 an application for grant of probate of the Will of Usha Himatsingka, since deceased was filed before this Court supported by an affidavit of Shyama Poddar, one of the attesting witnesses and two separate Vakalatnamas were filed on behalf of Jyotsana Rajgarhia and Anita Fatehpuria in favour of Mr. Pulak Lahiri, Advocate. The said Mr. Pulak Lahiri on behalf of his clients endorsed consent on behalf of his client on the Probate application. On 21st January, 1987 Probate petition was filed in Court. On 23rd January, 1987 an order dispensing the citation was made on the strength of the consent given in the proceeding. On 10th February, 1987 Probate was granted by the Court since the Probate was not contested by any of the parties. Usha Himatsingka, since deceased used to reside at 19B, Mandeville Gardens, Kolkata till her death. On 23rd January, 1987 an order dispensing the citation was made on the strength of the consent given in the proceeding. On 10th February, 1987 Probate was granted by the Court since the Probate was not contested by any of the parties. Usha Himatsingka, since deceased used to reside at 19B, Mandeville Gardens, Kolkata till her death. It appears that the said flat was sold after her death and proceeds of the said sale were neither claimed nor received by the daughters and no objection was also raised by them. It further appears that the Will published by the husband of Usha, Anirudha Kr. Himatsingka, since deceased, was also probated such order so passed on 26th September, 1995. On 1st June, 1991 Prabhudayal Himatsingka was died and on 9th April, 1997 Bhagawati Prasad Himatsingka was died. “After the death of Bhagawati Prasad Himatsingka, Dipak Kumar Himatsingka, the appellant herein wrote a letter on 7th November, 1997 to Curewell India Limited (hereinafter referred to as ‘the said company’) seeking particulars of shares of Late Anirudha Kumar Himatsingka in the said company. On 28th May, 1998 Dipak Kumar Himatsingka sent a reminder to the said company and the company by its letter dated 2nd June, 1998 requested Dipak Kumar Himatsingka to submit a copy of the Will of Anirudha Kumar Himatsingka, since deceased. The copies of the Probate of the Will of Anirudha Kumar Himatsingka, since deceased and Usha Himatsingka, since deceased were forwarded to the company on 17th June, 1998. On 30th June, 1998 the company furnished the particulars of shares of Anirudha Kumar Himatsingka, since deceased to Dipak Kumar Himatsingka. On 30th October, 1998 Dipak Kumar Himatsingka filed a suit being C.S. No. 450 of 1998 against Rakesh Himatsingka. It appears that after the grant of such Probate in the year 1987 (Usha’s Will) Jyotsana Rajgarhia and Anita Fatehpuria executed a Vokalatnama in favour of Anirudha Garodia and thereafter on 15th October, 1999 the present application for revocation of grant of Probate was filed by Jyotsana Rajgarhia. The petition was affirmed by one Adarhs Parasramka. Mr. Anindya Kumar Mitra, learned Senior Advocate appearing on behalf of the appellant submitted that Usha Himatsingka executed her Will on 17th September, 1981. The Will is attested by Shyama Poddar, an Advocate of this Honble Court and Anita Fatehpuria, the elder daughter of the testatrix, the respondent No. 2 in this proceeding. Mr. Anindya Kumar Mitra, learned Senior Advocate appearing on behalf of the appellant submitted that Usha Himatsingka executed her Will on 17th September, 1981. The Will is attested by Shyama Poddar, an Advocate of this Honble Court and Anita Fatehpuria, the elder daughter of the testatrix, the respondent No. 2 in this proceeding. The Will was kept with Anita Fatehpuria by Usha, since deceased. Usha died on October 3, 1981. Daughters of testatrix appeared through Pulak Lahiri and gave consent to grant of Probate in favour of Dipak Kumar Himatsingka. The revocation petition was filed after 12 years from the date of grant of Probate. The Hon’ble First Court made out a new case which was not pleaded in the petition that at the instance of P.D. Himatsingka, daughters signed the Vakalatnama in favour of Pulak Lahiri without understanding the purpose of the same. Mr. Mitra submitted that the grounds for assailing the judgment of the Honble First Court are as follows : i) No valid ground for revocation has been made out. There is no sufficient cause has been shown for such revocation. ii) Petitioners/Respondents had accepted the Will with knowledge thereof and stood by the Will for 12 years. iii) No application for condonation of delay had been filed before the Trial Court even there is oral application was made before the Court even then Court without any materials wrongly condone the delay of 12 years. iv) Although, it would be evident that petitioners/respondents gave consent through Pulak Lahiri at the instance of P.D. Himatsingka. Even then Court held wrongly that the petitioners/respondents did not engage Pulak Lahiri and did not give consent. Therefore, such a new case has been made out by the Hon’ble Single Judge without any averment or the case made out by the respondents. Mr. Mitra further contended that the following facts are admitted : a) Before making the application, Jyotsana Rajgarhia, second daughter of testatrix caused searches in the records by herself. b) Jyotsana Rajgarhia obtained certified copies of the application for probate with Will annexed thereto. So, she had the benefit of going through the Will and the contents thereof, as also the signature of the Testatrix and the attesting witnesses. c) Jyotsana Rajgarhia has not challenged the genuineness of the Will. d) Jyotsana Rajgarhia has not alleged that the Will is forged or procured by fraud. So, she had the benefit of going through the Will and the contents thereof, as also the signature of the Testatrix and the attesting witnesses. c) Jyotsana Rajgarhia has not challenged the genuineness of the Will. d) Jyotsana Rajgarhia has not alleged that the Will is forged or procured by fraud. e) Jyotsana Rajgarhia has not disputed the signature of Usha Himatsingka (Testatrix) in the Will. f) Jyotsana Rajgarhia has not disputed the signature of Shyama Poddar, an attesting witness to the Will. g) Jyotsana Rajgarhia in questions 237, 238 (appearing at page 478) admitted and confirmed the statement of the Testatrix in the Will that “I have no son and I have been treating throughout Dipak Himatsingka, son of my elder brother-in-law, Sri Bhagawati Prasad Himatsingka, as my son. The said Dipak Kumar Himatsingka has been looking after me and my affairs and my husband also used to treat him as our own son”. h) Jyotsana Rajgarhia has not disputed the signature of the respondent No. 2 (her elder sister) on the Will. i) Anita (respondent No. 2), an attesting witness, also took inspection of the Will which would be evident from question No.119 (appearing at page 521) j) Anita has not applied for revocation of the Grant. k) Anita has not disputed the signature of Usha Himatsingka, since deceased in the Will. It is pertinent to mention here that ‘Illustrations’ to Section 263 of the Indian Succession Act, 1925 provides that Grant may be revoked if the Will probated was forged. Jyotsana Rajgarhia has not challenged the Will alleging that the same is forged, not genuine or it was obtained by fraud, even after she herself inspected the records of the Probate proceedings (PLA 17 of 1987). Mr. Mitra contended that revocation of the grant was not sought for on those grounds. Therefore, in the absence of such allegations in the petition filed after 12 years from the date of the grant, the application for revocation of the grant of Probate should have been rejected. In this connection, he relied upon a Three Judge Bench decision of the Supreme Court Anil Behari Ghosh Vs. Latika Bala Dassi reported in AIR 1955 SC 566 and submitted that on the similar facts, Supreme Court refused to revoke the Grant. In this connection, he relied upon a Three Judge Bench decision of the Supreme Court Anil Behari Ghosh Vs. Latika Bala Dassi reported in AIR 1955 SC 566 and submitted that on the similar facts, Supreme Court refused to revoke the Grant. The facts in the said decision is that Will was probated in common form; no citation was issued; genuineness of Will was not in dispute. In these circumstances, the Supreme Court dismissed the petition on the grounds that grounds under Section 263 of the Indian Succession Act was not made out because: (a) Petitioner stood by the Will and did not take steps at the right time. (b) Not suggested that the Will was not genuine. (a) Hand written Letter dated November 13, 1985 (Exhibit 04) by Anita to Bhagwati Himatsingka forwarding the Will of Usha Himatsingka. (b) Affidavit (Exhibit 19) affirmed by Anita for the purpose of Estate Duty, where she stated that both her mother and father had died leaving Wills and their estate had been bequeathed to Dipak. Anita went to the extent of denying her signature, which was proved by calling Dipak Dey, Advocate as a witness in the proceedings before the Trial Court. (c) On February 29, 1988, Jyotasana and Anita both filed written statements in Bank Suit No. 118 of 1985 stating that they had not inherited anything from their mother Usha Himatsingka and therefore not liable for guarantee given by Usha Himatsingka. No applications for amendments of the said written statements filed by them claiming themselves as the intestate heiresses of Usha. He further contended that daughters of Usha Himatsingka had knowledge and accepted the Will shall appear from the following facts: Therefore, he submitted that those are strong grounds for dismissal of the petition filed by them. Mr. Mitra pointed out that in the judgment impugned, the Learned Judge observed “So I refrain from making any comment as to the implication of their statements made in the Written Statements in the proceedings before Debt Recovery Tribunal (hereinafter referred to as the ‘DRT’) filed by United Bank of India”. He submitted that the Learned Judge erroneously refused to consider the evidentiary value of those Written Statements. He submitted that the Learned Judge erroneously refused to consider the evidentiary value of those Written Statements. He pointed out that both the sisters never claimed any share in the estate left by Aniruddha (father) as also Usha (Mother), although in the affidavit of Jyotsna affirmed on 21st November, 2002, since filed to contest the probate petition and she has claimed that Usha had huge moveable and immovable properties. Mr. Mitra further pointed out that “No claim Certificate” was executed by Jyotsna on 5th January, 1982 stating that she has no claim whatsoever on the Flat No. 41 Somerset House, Tyabji Bagh Co-operative Housing Society, Bombay. “No claim Certificate” was also executed by Anita on 5th January, 1982 stating that she has no claim whatsoever on the Flat No. 41 Somerset House, Tyabji Bagh Co-operative Housing Society, Bombay (Exhibit.16). Estate Duty Return was signed by Anita on 10th August, 1983. By this Will Usha gave everything to her husband’s brother’s son, Dipak Himatsingka and nothing to her daughter Anita Fatehpuria and Jyotsna. Himatsingka family got Jyotsna married on January 1982 with Ashok Rajgharia. The Will should not be considered unnatural because Usha treated Dipak as her son. This is admitted by Jyotsna (Questions 237 & 238 at Page 478 of Paper Book) and the said fact is also recorded in the Will. He further contended that the petition was barred by limitation. The probate was granted on 10th February, 1987 and the application for revocation was made on 15th October, 1999. He further contended that on the question of limitation, the learned Judge held as follows:- “(a) In my view, the right to apply for revocation for grant accrues the moment grant is made by the Court and this has to be made within 3 years from the date of grant under Article 137 of the Limitation Act, 1963”. (b) “Therefore, obviously Article 137 of the Limitation Act is the only provision which can help the Court to decide this question.” He further relied upon a decision in the case of Hari Narain Vs. Subhas Chander reported in AIR 1985 P&H 211 , which is a direct authority on this point and he also relied upon a decision in the case of Kerala State Electricity Board Vs. Subhas Chander reported in AIR 1985 P&H 211 , which is a direct authority on this point and he also relied upon a decision in the case of Kerala State Electricity Board Vs. T.P. Kunhaliumma reported in AIR 1977 SC 282 and submitted that although the Hon’ble Single Judge held that “this application is to be made within three years from the grant of probate of the Will”, but ultimately allowed the revocation application. He also relied upon the following decisions: 1. In 1966 SC 153 Pandurang Vs. Maruti Para 10 in the said decision it is held that “a finding on the plea of limitation in favour of the party raising it, would oust the jurisdiction of the Court”. 2. In 2009 (5) SCC 121 Paragraph 15 relying on the said decision, he submitted that “after holding the application for revocation of grant was barred by limitation, the learned Judge did not have any jurisdiction to decide/adjudicate the other issues/contentions raised in the proceedings.” On the question of condonation of delay he submitted that after having held that the application of the respondent No.1 was barred by limitation, the learned Judge had no jurisdiction to condone the delay. In the judgment impugned, the learned Judge condoned the delay in making the application for revocation of the grant, which could be done only under Section 5 of the Limitation Act provided an application was made. Admittedly the application was made after 12 years from the date of the grant of Probate. The specific case and the argument of the respondent No. 1 was that the application was within the period of limitation. There was no prayer for condonation for delay in the application for revocation. Admittedly no oral prayer for condonation of delay was made. Prayer for condonation of delay was also not made in the notes on arguments of the respondent No. 1 filed before the learned Trial Court. It is trite law that Court can condone the delay either on the prayer made in the application or on oral prayer made to that effect and not otherwise. Therefore, the learned Judge had no jurisdiction to condone the delay. Mr. Mitra further relied upon the following decisions in support of his contention: (i) 85 CWN 353 paragraph 52 (Chittaranjan Das Vs. Sanhita Das) – must be an express prayer for condonation of delay. Therefore, the learned Judge had no jurisdiction to condone the delay. Mr. Mitra further relied upon the following decisions in support of his contention: (i) 85 CWN 353 paragraph 52 (Chittaranjan Das Vs. Sanhita Das) – must be an express prayer for condonation of delay. (ii) AIR 1968 Calcutta 69 Paragraph 28 (Bhaktibhusan Vs. Khagendra) – if the petitioner wants condonation of delay, he should frankly admit and then pray for condonation of delay. No indication was given in course of hearing that the learned Judge would consider the question of condonation of delay. No opportunity was given to make any submission on the question of sufficient cause under Section 5 of Limitation Act. No prayer for condonation of delay was made by the petitioner. The learned Judge condoned the delay holding that there was “sufficient cause”. Such finding of the learned Judge is totally erroneous for following reasons :- Firstly, the respondent No. 1 proceeded on the basis that the application was made in time and did not pray even orally for condonation of delay and consequently there was no plea by the respondent No. 1 making out sufficient cause for condonation of delay. Secondly, the existence of sufficient cause under Section 5 of Limitation Act was not an issue framed by the learned Judge, consequently no argument was advanced by any of the parties on the question of sufficient cause for condonation of delay. Thirdly, on the materials on record (Exhibits) and particularly the written statement filed by both the sisters in Bank Suit clearly stating that they have not inherited anything from estate of Usha Himatsingka, it could not be concluded by the learned Judge that there was sufficient cause for condonation of delay. Fourthly, and in any event in the judgment, the learned Judge did not discuss as to how and on what basis he held that there was sufficient cause and thus mechanically without any application of mind concluded that there was sufficient cause to condone the delay. Fifthly, the Honble Court did not rely upon Section 17 of the Limitation Act. Therefore, condonation of delay was without jurisdiction and also without sufficient cause and should be set aside. The petition for revocation should be dismissed as barred by limitation without going into any other question in this case. Fifthly, the Honble Court did not rely upon Section 17 of the Limitation Act. Therefore, condonation of delay was without jurisdiction and also without sufficient cause and should be set aside. The petition for revocation should be dismissed as barred by limitation without going into any other question in this case. He submitted that the application for revocation of the grant was set down for “Trial on Evidence” on the following issues:- “a. Did Jyotsana Rajgharia and Anita Fatepuria execute the Vokalatnama in favour of Mr. Pulak Lahiri, which are kept in safe custody of the Registrar, Original Side? b. If so, then did they sign and execute Vokalatnama in presence and in front of Mr. Pulak Lahiri? c. Did the aforesaid two ladies give instructions in any manner in giving consent to grant of probate of the alleged Will or not?” He further submitted that the Court cannot make out a new case for any of the parties. The petition was filed after the death of P.D. Himatsingka and Bhagwati Prasad Himatsingka. Mr. Mitra further submitted that the learned Judge should have also answered issue Nos. (b) and (c) in the affirmative in the facts and circumstances of the case and materials available on record, subject to the submission that Honble First Court has no jurisdiction to go into merits of a time barred case. He further submitted that in the judgment impugned, the learned Judge on the question of Vokalatnamas executed by the two ladies held as under : (a) “The signatures appearing in the Vokalatnamas are identically similar in all respects with those of the admitted signatures.” (b) “I have also examined these two signatures on the two-questioned Vokalatnamas that they are admitted signatures, namely written statements filed in Bank suit subsequently to DRT.” (c) “I accept the argument of Mr. A.K. Mitra that their undue and unjustified hesitation to identify and signature of them when seeing the contents of documents suggests their reluctance to deliver the truth even both of them were unduly hesitant to admit their signatures on the admitted documents.” (d) “Moreover two independent witness, viz. Mr. Dipak Dey, Mr. Anirudh Garulia and Nathmal Himatsingka, Advocates, have come forward to recognize and prove their signatures on two documents.” (e) “She hesitated to identifyher signature, even Jyotsana Rajgarhia went to the extent of disputing her husband’s signature in her answers to question Nos. Mr. Dipak Dey, Mr. Anirudh Garulia and Nathmal Himatsingka, Advocates, have come forward to recognize and prove their signatures on two documents.” (e) “She hesitated to identifyher signature, even Jyotsana Rajgarhia went to the extent of disputing her husband’s signature in her answers to question Nos. 142-145.” (f) “I find without any hesitation the signatures on both the questioned Vakalatnamas and other admitted signatures are same.” (g) “I have no doubt in my mind that these two ladies are telling lies about their putting signatures.” (h) “So I hold that both the aforesaid two ladies have put their signatures on these two-questioned Vakalatnamas.” Mr. Mitra submitted regarding issue No. 2 (Pulak Lahiri and his evidence) that Pulak was called by the Court to give evidence. Pulak was thus a Court’s witness. Pulak was not a party to the Petition for revocation. The Learned Judge found that Pulak is also very suspicious that the story made out by Pulak cannot be believed and that signing and execution of the two Vokalatnamas in questioned by the two ladies in presence of Pulak are unbelievable. It is submitted by the appellant that these findings are erroneous. On a close analysis of the evidence of Pulak, it is clearly established that the two ladies engaged Pulak, as their Advocate, executed two Vokalatnamas in favour of Pulak and also consented to the application for grant of probate. Mr. Mitra submitted that these facts are established from under-mentioned evidence of Pulak:- Evidence of Pulak: (i) [(Question.21(by Court), (See Page 553 of Paper Book] in presence of the aforesaid two ladies, Mr. P.D. Himatsingka instructed me to consent on their behalf and they said “Yes”. (ii) [(Question.24 and 30), (See Page 555 of Paper Book)] the two ladies signed the Vokalatnamas at the same sitting whereafter Pulak singed the Vakalatnama. (iii) [(Question.57, 58) (See Page 559 of Paper Book)] P.D. Himatsingka asked Pulak to give consent and the two ladies sitting there, have nodded in confirmation. (iv) Pulak gave the same answer to the Question Nos. (109), (111) and (112) put in cross examination (See Page 568 of Paper Book). (v) Pulak charged his feesand received the same and no receipt was given. (See Page 569 of Paper Book). Mr. Mitra Contended that Pulak is an uninterested witness. (iv) Pulak gave the same answer to the Question Nos. (109), (111) and (112) put in cross examination (See Page 568 of Paper Book). (v) Pulak charged his feesand received the same and no receipt was given. (See Page 569 of Paper Book). Mr. Mitra Contended that Pulak is an uninterested witness. He further submitted that admittedly, Pulak as court witness gave evidence on 15th November, 2000, 2nd December, 2000 and 12th December, 2000, i.e. admittedly after 13 years from the grant of probate dated 10.2.1987. It is impossible for any witness to remember the event in every minute detail that happened 13 years ago and give flawless evidence. Therefore, minor inconsistencies in the evidence of Pulak should be ignored. In any event in this case those minor inconsistencies did not admittedly touch upon the issues framed by the Learned Judge. In this connection, appellant relies upon the following decisions. (a) AIR 1974 SC 1168 Para 16 (The State of Punjab Vs. Hari Singh and Anr.); (b) AIR 1972 SC 2020 Para 7 (Sohrab and Anr. Vs. The State of Madhya Pradesh) The Learned Judge held “it is quite understandable and natural that, as Pulak was then Assistant to P.D. Himatsingka, he had to act under the instruction whosoever illegal of P.D. Himatsingka to please him.” Mr. Mitra submitted that the above finding of the Learned Judge is totally erroneous in as much as in 1987 when the application of probate was filed, Pulak was not an Assistant of or under P.D. Himatsingka but he left the firm of P.D. Himatsingka & Co. long ago in 1980 (See Evidence of Pulak Question. No.3 at Page 551 of Paper Book). The Learned Judge disbelieved Pulak totally on wrong notion and non-consideration of the materials on record. It would appear from the Genealogical Table that P.D. Himatsingka was the great grandfather of Dipak, Jyotsana and Anita and it was not the case of Jyotsana that P.D. Himatsingka conducted various litigations in which Jyotsana and Anita were parties and none of the sisters had ever alleged or complained that their litigations were improperly conducted. In her evidence (See Question Nos. 32-39/Page 438 of Paper Book) Jyotsana unequivocally admitted that she had implicit faith and trust on Prabhudayal Himatsingka as also on Dipak. In her evidence (See Question Nos. 32-39/Page 438 of Paper Book) Jyotsana unequivocally admitted that she had implicit faith and trust on Prabhudayal Himatsingka as also on Dipak. The evidence of Pulak quoted above was cogent, wholly reliable and are enjoin answers in the affirmative to the issues framed by the Learned Judge. After having held that two ladies were telling lies in the matter of execution of the Vokalatnamas in favour of Pulak, the further finding of the Learned Judge that Pulak is suspicious and he could not be believed is totally contradictory and should not be accepted. It is submitted that the said findings are, therefore, demonstratively erroneous, contradictory and should not be relied upon. It is submitted that the Learned Judge allowed the application based on new case and/or pleas not pleaded by the Respondent No.1. In this regard, the under-mentioned findings of the Learned Judge may be considered:- (a) “Therefore, it is quite natural that they must have put their signatures on Vokalatnamas without knowing the purport and object for which the same were got to be signed or in which proceedings the same might be utilized. (See Page 743 of Paper Book) (b) “So I have no hesitate to hold that the signatures were got to be signed by P.D. Himatsingka without making them known for the purpose the same would be utilized.” (See Page 744 of Paper Book) (c) “Pravudayal Babu instructed Jyotsna that the Testamentary Suit is going to be settled and Jyotsna had to consent to the probate.” (See Page 744 of Paper Book) (d) “I have no doubt in any manner in my mind that Pulak was really set up by P.D. Himatsingka to record consent utilizing the aforesaid two questioned Vokalatnamas.” (See Page 745 of Paper Book) (e) “So the consent given by Pulak was not on behalf of Jyotsna at least but on behalf of P.D. Himatsingka, who was also the lawyer of the propounder.” (See Page 746 of Paper Book) It is submitted that the respondent No. 1 did not plead or take any of the above pleas in her application for revocation of the grant of Probate. The above are, therefore, totally new cases/pleas not pleaded by the respondent No.1 and also by the respondent No.2. (f) It is well-settled that the Court would not make out a new case beyond the pleadings of the parties. The above are, therefore, totally new cases/pleas not pleaded by the respondent No.1 and also by the respondent No.2. (f) It is well-settled that the Court would not make out a new case beyond the pleadings of the parties. In this regard, the appellant relies upon the following decisions: 1. AIR 1992 SC 2295 Para (6) (M Ramaswamy Pillai Vs. Hazarath Syed Shah Mian Sakkaf Khadiri Thaikal); 2. AIR 1997 J&K 132 Para (16)(State of Jammu & Kashmir Vs. Dr. Karan Singh & Ors.); It is further submitted that the finding of the Learned Judge that “they must have put their signature” at Page 743 of the Paper Book quoted above in para (a) is not a positive finding at all. The finding is more a “guess” of the Learned Judge than proved by material evidence. The conclusion arrived at by the Learned Judge is therefore wholly unreliable and could not be accepted. The Learned Judge did not consider the admitted position that both the sisters had knowledge of and knowingly acted upon the Will as evident from the following facts: a. Hand written Letter dated 13th November, 1985 (See Ext.04/Page 77 of Paper Book) by Anita to Bhagawati Himatsingka forwarding the Will of Usha. b. Affidavit by Anita (See Ext.19/Page 98-99 of Supp Paper Book) stating that both her mother and father had died leaving Wills their estate had been bequeathed to Dipak. c. Sale of Mandeville Garden property in 1991 where Usha resided till her death and no proceeds were received by the daughters; even no claim was made for the same. d. On 29th February, 1988, Jyotsana filed Written Statement in Bank Suit No.118 of 1985 stating that she had not inherited anything from her mother Usha Himatsingka. e. On 29th February, 1988, Anita filed Written Statement in Bank Suit No.118 of 1985 stating that she has not inherited anything from her mother Usha Himatsingka. f. No application for amendment of the Written Statements claiming intestate heiress of Usha has been made by either of the two sisters. In the Judgment impugned, the Learned Judge observed “So I refrain from making any comment as to the implication of their statements made in the Written Statements in the proceedings before DRT filed by United Bank of India” (See Page 748 of Paper Book). In the Judgment impugned, the Learned Judge observed “So I refrain from making any comment as to the implication of their statements made in the Written Statements in the proceedings before DRT filed by United Bank of India” (See Page 748 of Paper Book). The Learned Judge thus refused to consider the evidentiary value of those Written Statements and erroneously allowed the application. Both the sisters never claimed any share in the estate left by Aniruddha (father) as also Usha (Mother), although in the affidavit of Jyotsana affirmed on November 21, 2002 (See Page 702 of Paper Book) since filed to contest the probate petition, has claimed huge moveable and immovable properties belong to Usha (See Page 719-724 of Paper Book). It is absurd and unbelievable that any lawful heir to such huge estate (as claimed by Jyotsana) would remain totally unconcerned and obvious and would not take any step to protect his/her rights thereon for a period of over 16 years since end of 1983. It is further significant to note that between 1981 and end of 1983, the sisters looked after the estate and thereafter ceased to administer the same anymore after discovery of the factum of the Will around end 1983 (See A/O of Dipak Page 53 of Paper Book). g. “No Claim Certificate” executed by Jyotsana on January 5, 1982 stating that she has no claim whatsoever on the Flat No.41 Summerset House, Toyabji Bagh Co-operative Housing Society, Bombay (Ext.17) (See Page 318 of Paper Book) h. “No Claim Certificate” executed by Anita on January 5, 1982 stating that she has no claim whatsoever on the Flat No.41 Summerset House, Toyabji Bagh Co-operative Housing Society, Bombay (Ext.17) (See Page 318of Paper Book). i. Estate Duty Return signed by Anita dated August 10, 1983 (See Page 59-62 of Supp Paper Book). The above facts and documents conclusively established that both the sister had the knowledge of the Will and knowingly acted upon the Will and had accepted the Will. The very knowledge of the Will and acting upon the same by the sister disentitled/debarred the Respondent No.1 to apply for revocation of the grant. The Learned Judge completely ignored the above acceptance of the matter and thus allowed the application erroneously. The very knowledge of the Will and acting upon the same by the sister disentitled/debarred the Respondent No.1 to apply for revocation of the grant. The Learned Judge completely ignored the above acceptance of the matter and thus allowed the application erroneously. Four Public Notices advertised on behalf of the Appellant at his own cost in different leading English newspapers in Calcutta and Bombay on September 19, 1988 and October 11, 1988, which are disclosed as additional evidences in the application made by the Appellant under Order 41 Rule 27, CPC, (See Pages 773-795 of Paper Book) conclusively prove beyond any doubt that the Appellant never attempted to keep secret or conceal the grant of probate obtained by him. The said additional evidences would undisputedly disprove the findings made by the Learned Judge as above. Over and above it was not the case of the Respondent No.1 that the Grant of Probate was kept secret or concealed. In the appeal the appellant made application for stay of the Judgment and Order dated 10th October, 2002 and for grant of leave to adduce by way of additional evidences/documents. In the said application, the appellant sought for leave to rely upon newspaper advertisements made in different newspapers in Calcutta and Bombay. The said newspaper advertisements were made prior to disposal of Flat No.41, Garage Nos. 13 and 14 and Servants Quarter No. 6 in Tyabji Bagh Cooperative Housing Society Ltd. to Dipak Himatsingka as the Sole Executor and Legatee of the estate of Usha Himatsingka. The said documents being old one could not be traced out and disclosed by the appellant before the learned Trial Court and those only be discovered around the end of October, 2002 when the trial of the application for revocation of grant was over. In dealing with the said application, in her affidavit affirmed in February, 2003, the respondent No. 1 did not dispute the existence and genuineness of the said documents but merely denied the date of discovery of the documents by the appellant. The respondent No. 1 could not make out a case that those documents were in possession of the appellant during the trial but were not deliberately disclosed. Admittedly those documents are relevant and undisputedly would enable the appellate Court to pronounce judgment on the controversies involved in the appeal. The respondent No. 1 could not make out a case that those documents were in possession of the appellant during the trial but were not deliberately disclosed. Admittedly those documents are relevant and undisputedly would enable the appellate Court to pronounce judgment on the controversies involved in the appeal. It is, therefore, submitted that leave to adduce further evidence in terms of prayer (b) of the application should be allowed. The above additional evidences would completely disprove the finding of the learned Judge that “the fact of grant of probate is kept secret and concealed”. These public notices in newspapers would conclusively prove that the appellant made no attempt to conceal and/or kept secret the probate of the Will but at his own costs, had those newspaper advertisements published in leasing newspapers of Calcutta and Bombay. Therefore, Mr. Mitra submitted that application for additional evidence/documents should be allowed. The stay petition which was filed by the appellant prayed leave to adduce the additional evidence with regard to the documents referred to in paragraphs 11 and 14 of the said stay petition. We considered at the time of hearing of this appeal and it appears to us that the said documents are vital and should be allowed to be relied upon by the appellants for proper adjudication of the case in question. It appears to us that the appellant is seeking to produce additional evidence, establishes that notwithstanding exercising due diligence such evidence was not within his knowledge and could not be produced by him at the time when the order was passed by the Hon’ble Single Judge. Hence we fail to decide this matter. It is necessary for us to allow the appellant to rely upon those documents to do substantial justice in the matter. While the Learned Judge made out a new case de hors the pleadings and accordingly allowed the application for revocation of the grant of Probate, the Learned Judge completely ignored the fact that Respondent No.1 in her application made no allegation against Prabhudayal Himatsingka (PDH) at all and on the contrary in answer to Q.Nos.32 and 37 (See Page 438 of Paper Book) she deposed that she respects Prabhudayal and has faith and confidence in him. The Learned Judge completely ignored the vital fact that long after Prabhudayal (PDH) died on June 1, 1991 and Bhagawati Prasad Himatsingka (BPH) died on April 9, 1997, Jyotsana deliberately chose to make the application after their death although she as also Anita had full knowledge of the Will and knowingly acted upon the same as evident from paragraph 15 above. It is submitted that the Learned Judge should have rejected the allegations sought to be leveled against those two dead men and oral evidences purportedly sought to be given in support thereof. It is submitted that the Respondent No.1 deliberately chose to run the case against those dead men at a time when the appellant could not confront such case and call any of them as witness. The situation would have been admittedly otherwise if the application was filed during the life time of PDH and BPH. It is submitted that apart from holding the application was barred by limitation, the Learned Judge having proceeded to adjudicate the contentions, further (although without any jurisdiction as above submitted) should have dismissed the application being mala fide and misconceived. It is respectfully submitted that the appeal should be allowed and the impugned judgement and order dated October 10, 2002 should be set aside. Mr. Chowdhury learned Advocate appearing on behalf of the respondent submitted that on 3rd October, 1981 Usha Himatsingka died. At the time of her death she was widow. Her husband Anirudha Kumar Himatsingka died on 13th March, 1974. She left behind two daughters Sm. Jyotsana Rajgarhia and Sm. Anita Fatehpuria, as her only heirs and legal representatives. Dipak Kumar Himatsingka (Usha Himatsingka Devi’s husbands elder brother’s son) obtained probate of a Will dated 17th September, 1981 alleged to have been executed by Sm. Usha Himatsingka Devi. The application for probate of Sm. Usha Himatsingka Devi was made by Dipak Kumar Himatsingka on 22nd January,1987. No citation was issued either on Jyotsana Rajgarhia or Anita Fatehpuria. Representation was made to the Court on behalf of the Dipak Kumar Himatsingka that Anita Fatehpuria and Jyotsana Rajhgarhia had executed Vakalatnamas an order was obtained from Mrs. Justice Monjula Bose dispensing with citation and ordering the grant of probate. It is submitted before the Court that Anita Fatehpuria and Jyotsana Rajgarhia had executed Vakalatnamas authorizing and empowering Sri Pulak Lahiri, Advocate to represent them in the proceedings. Mr. Justice Monjula Bose dispensing with citation and ordering the grant of probate. It is submitted before the Court that Anita Fatehpuria and Jyotsana Rajgarhia had executed Vakalatnamas authorizing and empowering Sri Pulak Lahiri, Advocate to represent them in the proceedings. Mr. Pulak Lahiri endorsed consent on behalf of the said Anita Fatehpuria and Jyotsana Rajgarhia on the petition of Dipak Kumar Himatsingka. Relying upon such representation and on the basis of consent given by Pulak Lahiri (allegedly based on the instructions of Anita Fatehpuria and Jyotsana Rajgarhia) probate was obtained by Dipak Kumar Himatsingka without proving the same solemnly and without consent. Hence, application was filed under Section 263 of Indian Succession Act.Under Section 263 the probate was liable to be revoked being just cause. In the said Section it is provided that such just cause shall be deemed to exist where: (a) The proceedings to obtain grant of Probate were defective in substance; (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 untrue allegation of fact essential in point of law to justify the grant though such allegation was made in ignorance or inadvertently. Under the said section illustration (ii) is “the grant of Probate was made without citing the parties who ought to have been cited”. It is submitted that the proceedings in which the probate was granted to Dipak Kumar Himatsingka was defective in substance. The grant was obtained fraudulently by Dipak Kumar Himatsingka by making false suggestions to the Court that Jyotsana Rajgarhia and Anita Fatehpuria had executed Vakalatnama in favour of one Sri Pulak Lahiri and instructed him to give consent. He concealed from the Court the material fact that Jyotsana Rajgarhia or Anita Fatehpuria never executed such Vakalatnamas and never engaged, authorized or empowered the said Pulak Lahiri to give consent to the grant of probate on their behalf. The grant was obtained by means of untrue allegation of fact essential in point of law to justify the grant. Dispensation of citation was obtained by making false representation to the Court. It is further submitted that it is not correct that there is no allegation of fraud against Dipak Kumar Himatsingka. The allegation of fraud has been made in the petition. Dispensation of citation was obtained by making false representation to the Court. It is further submitted that it is not correct that there is no allegation of fraud against Dipak Kumar Himatsingka. The allegation of fraud has been made in the petition. The fraud consisted of procuring an order for dispensation of citation on the basis of the purported Vakalatnamas never executed by Jyotsana Rajgarhia or Anita Fatehpuria. It was further stated that Jyotsana Rajgarhia never knew any body by the name of Pulak Lahiri and she never signed any Vakalatnamas for the purpose of probate proceeding in favour of Pulak Lahiri. It is further the case of Jyotsana that she never gave any instruction to Pulak Lahiri to give consent to the grant of probate. Therefore, it is submitted that All these facts are fraud practice of Dipak Kumar Himatsingka in the matter of obtaining probate. Relying on the decision reported in 1994 (1) SCC page 1 it is submitted that those facts would support constituting those fraud. It is further stated that Dipak Kumar Himatsingka never filed any affidavit before the Court. By an order of the Hon’ble Single Judge Pulak appeared before the Court personally and confirmed that he had sent those two Vakalatnamas. Pulak Lahiri was directed to file an affidavit. Affidavit was filed by Pulak Lahiri which was affirmed on 18th January, 2000. In the said affidavit Pulak Lahiri stated as follows: “(a) Jyotsana Rajgarhia and Anita Fateahpuria came to see him. (b) He could not remember the date and time of the visit. (c) All that he could recall was that Anita Fatehpuria and Jyotsana Rajgarhia had occasion to meet him and they executed Vakalatnamas in his presence. (d) Pulak Lahiri took instructions from them (i.e. Anita and Jyotsana Rajgarhia) as to the matter in which he was to conduct the proceeding. (e) Both the ladies informed him that they had no intention of opposing the probate application. (f) On the basis of express instruction not to oppose the grant of probate and upon express further instruction to give consent in writing to the grant of probate. Pulak Lahiri appeared in Court and gave consent by endorsing consent on the copy of the probate petition. (g) Thereafter, Jyotsana Rajgarhia and Anita Fatehpuria kept in touch with Pulak Lahiri till such time as the probate was granted.” Mr. Pulak Lahiri appeared in Court and gave consent by endorsing consent on the copy of the probate petition. (g) Thereafter, Jyotsana Rajgarhia and Anita Fatehpuria kept in touch with Pulak Lahiri till such time as the probate was granted.” Mr. Chowdhury further submitted that Pulak Lahiri was called to P.D. Himatsingka’s Chamber or that he got only instructions from P.D. Himatsingka himself and the ladies were just present and that he had nothing to do with the preparation of Vakalatnama which was signed in blank or that he had nothing to do with the preparation or drafting or filing of the alleged Vakalatnamas. An impression was sought to be given that he received express instruction directly from Jyotsana Rajgarhia and Anita Fatehpuria and he appeared in Court. Pursuant to such express instruction alleged to have been given by Jyotsana Rajgarhia and Anita Fatehpuria. Mr. Chowdhury further contended that the evidence of Pulak Lahiri and the affidavit filed by him would give a clear picture of facts stated by him in affidavit and also at the time of trial before the Court. If Pulak Lahiri’s affidavit is disbelieved then the application for revocation must succeed. By an order dated 3rd February, 2000 the Honble Single Judge directed trial on affidavits on the following issues: (a) Did Jyotsana Rajgarhia and Anita execute Vakalatnamas in favour of Pulak Lahiri? (b) If so, did they sign and execute Vakalatnamas in presence and in front of Pulak Lahiri? (c) Did the two ladies given instructions in any manner in giving consent to the grant of probate of the alleged Will? Thereafter the matter was tried on evidence. Mr. Chowdhury further pointed out that a case which would put his case while cross examining Jyotsana Rajgarhia, Pulak Lahiri’s counsel put the following questions to Jyotsana Rajgarhia: (a) On 15th January, 1987 Jyotsana Rajgarhia had visited the Office of P.D. Himatsingka (Jyotsana Rajgarhia – 284). (b) Jyotsana Rajgarhia was present along with Dipak Kumar Himatsingka in the room of Prabhudayal babu (Q. Jyotsana Rajgarhia – 285). (c) Pulak Lahiri was called to the Chamber of Prabhudayal Babu (Jyotsana Rajgarhia questions 287 and 318). (d) Vakalatnama was prepared by Prabhudayal Babu and at his instance Jyotsana Rajgarhia and Anita signed Vakalatnamas (Jyotsana Rajgarhia question J-289). (b) Jyotsana Rajgarhia was present along with Dipak Kumar Himatsingka in the room of Prabhudayal babu (Q. Jyotsana Rajgarhia – 285). (c) Pulak Lahiri was called to the Chamber of Prabhudayal Babu (Jyotsana Rajgarhia questions 287 and 318). (d) Vakalatnama was prepared by Prabhudayal Babu and at his instance Jyotsana Rajgarhia and Anita signed Vakalatnamas (Jyotsana Rajgarhia question J-289). (e) Prabhudayal Babu instructed Jyotsana Rajgarhia that the testamentary suit is going to be settled and Jyotsana had to give consent to the grant of Probate (Jyotsana Rajgarhia Q.290). (f) Jyotsana Rajgarhia instructed Pulak Lahiri to appear on Jyotsana Rajgarhia’s behalf and to give consent to probate proceeding and Jyotsana Rajgarhia and Anita put their signatures in favour of Pulak Lahiri (Jyotsana Rajgarhia question – 292). (g) All writings on the Vakalatnamas were written by one Sukumar Babu (Jyotsana Rajgarhia question – 311) and all writings on the documents including signatures were put in the presence of Jyotsana Rajgarhia (Jyotsana Rajgarhia question – 313). (h) Jyotsana Rajgarhia and Anita expressly advised Pulak Lahiri to give consent on the advice of Prabhudayal Babu (Jyotsana Rajgarhia question – 325)”. He further submitted that the suggestion put by the learned counsel is totally contradict to what Pulak Lahiri had stated in the affidavit and it is submitted by Mr. Chowdhury that the case of the Pulak Lahiri which was suggested from the witness box demolished this case in the affidavit. After analyzing the facts Mr. Chowdhury submitted that the case of getting instructions from the ladies got totally destroyed by the answers of Pulak Lahiri. Pulak admitted that there was no written instruction. Mr. Lahiri further admitted that there was no discussion or conversation with the ladies. Therefore, he submitted that there is no scope for either written or even oral instruction. Therefore, he submitted that the issues in the trial on affidavit must be answered in favour of Jyotsana Rajgarhia and Anita Fatehpuria and against Pulak Lahiri. He further contended that the application for probate was made on 21st January, 1987. On the very same day probate was granted. Therefore, it is unbelievable that Jyotsana Rajgarhia and Anita would maintain telephonic contract with Mr. Lahiri thereafter. Mr. Chowdhury further pointed out that Dipak Kr. Himatsingka chose not to give evidence but to call three witnesses namely Nathmal Himatsingka, Dipak Dey and Anirudh Garodia. Mr. On the very same day probate was granted. Therefore, it is unbelievable that Jyotsana Rajgarhia and Anita would maintain telephonic contract with Mr. Lahiri thereafter. Mr. Chowdhury further pointed out that Dipak Kr. Himatsingka chose not to give evidence but to call three witnesses namely Nathmal Himatsingka, Dipak Dey and Anirudh Garodia. Mr. Nazthmal Himatsingka only proved the documents which he has notarized and said to be some declaration by Jyotsana Rajgarhia and Anita Fatehpuria certifying that they had no claim on the flat in Mumbai. The evidence of Dipak Dey would only show that the affidavit was affirmed by Anita Fatehpuria and Exhibit X-5 which is a Vakalatnama in favour of P.D. Himatsingka and company. Therefore, he submitted that evidence of Dipak Kr. Himatsingka was worth nothing. The last witness was Anirudh Garodia who only proved that he was engaged by Jyotsana Rajgarhia and Anita Fatehpuria to appear for them in the banks proceedings before the Debt Recovery Tribunal. Dipak Kr. Himatsingka did not give any evidence. Mr. Chowdhury further submitted that adverse inference can be drawn from the fact that Dipak Kr. Himatsingka did not come into the witness box for being examined and cross examined. Mr. Chowdhury further submitted that when a fraud is performing it is useless to argue that it was not necessary for some one to commit fraud. The question is whether the fraud was actually committed or not. It is submitted that on evidence case that Pulak Lahiri was empowered and/or authorized by the ladies to appear for them and to grant consent cannot be accepted by any Court least of all the Court of probate. The question is whether it is to be believed that blank Vakalatnamas were handed over to Pulak Lahiri with instructions to appear and to grant consent. If the instructions were clearly established then the question of implied authority to fill up the blank Vakalatnamas would arise otherwise not. Mr. Chowdhury further submitted that it was argued that Jyotsana Rajgarhia was hesitant to identify any signature contains of the documents. According to him such hesitation was perfectly natural in this case since it is the case of the Jyotsana Rajgarhia and Anita Fatehpuria that they put signatures on numerous documents at various points of time, sometime in black and sometime on written documents. According to him such hesitation was perfectly natural in this case since it is the case of the Jyotsana Rajgarhia and Anita Fatehpuria that they put signatures on numerous documents at various points of time, sometime in black and sometime on written documents. Such signatures were at the instance of Prabhudayal Babu, Bhagwati Babu, Dipak Kumar Himatsingka and Rakesh Himatsingka.Therefore, he was careful before making any firm commitment at the time of giving evidence. Therefore, it cannot be inferred that she was lying and she should be disbelieved. It is further the case of the appellant that Jyotsana Rajgarhia and Anita admitted that they have not inherited their mother’s estate. It is argued that such admission is contained in the written statement filed in the Bank suit. Mr. Chowdhury further contended that many documents were sent as has been stated by Jyotsana in her evidence at the instance of Prabhudayal Babu, Bhagwati Prasad Himatsingka, Dipak Kumar Himatsingka and Rakesh Himatsingka. Therefore, this evidence it cannot be said that Jyotsana Rajgarhia’s case on this point cannot be considered to be improbable one. The case of the Jyotsana Rajgarhia that she was doing it all the times till her trust was shaken when this improperly produced probate of the purported Will came to light. He further contended that it cannot, therefore, be inferred that the receipt of the letters were falsely denied by Jyotsana Rajgarhia when the said letters were not received at all, it was not for Jyotsana Rajgarhia to make out a case that P.D. Himatsingka & Company falsely created documents in 1986 to affect Jyotsana Rajgarhia’s litigation in 1999. According to Mr. Chowdhury those letters did not prove anything regarding the issues involved in the present proceedings. With regard to the sale of flat at Mandeville Garden Jyotsana Rajgarhia said that she was not even aware that the said flat was in the name of her mother. The letter box kept on the ground floor showed the name of P.D. Himatsingka. She always thought that the flat stood in the name of P.D. Himatsingka. She knew that no claim certificate in respect of Bombay flat was granted. Regarding the Bombay flat Jyotsana Rajgarhia denied that she signed the purported document and she also denied that she signed the documents in presence of Nathmal Himatsingka. She always thought that the flat stood in the name of P.D. Himatsingka. She knew that no claim certificate in respect of Bombay flat was granted. Regarding the Bombay flat Jyotsana Rajgarhia denied that she signed the purported document and she also denied that she signed the documents in presence of Nathmal Himatsingka. Therefore, the argument that from this document it should be inferred that Anita Fatehpuria and Jyotsana Rajgarhia had knowledge of their mother’s Will in the circumstances stated by Jyotsana Rajgarhia the question of explaining any delay does not arise. Even assuming that they were quite happy proceeding on the footing that their interests were looked after and they were safe and protected in the hands of Prabhudayal Himatsingka, Bhagwati Prasad Himatsingka, Dipak Kumar Himatsingka and Rakesh Himatsingka. It became clear to Jyotsana Rajgarhia that Dipak Kumar Himatsingka was claiming Jyotsana’s father’s share through Jyotsana Rajgarhia’s mother Usha Devi Himatsingka on the basis of this improperly and fraudulently obtained probate. It became clear to the petitioner that by improperly and fraudulently procuring the grant of probate Dipak Kumar Himatsingka was trying to assert that the entire estate of Jyotsana Rajgarhia’s father Anirudha Kr. Himatsingka have come to him and obtaining this probate was part of conspiracy to deprive Anita Fatehpuria and Jyotsana Rajgarhia of their rightful shares in respect of the estate of their parents. It is further stated that it would appear from the facts that both Dipak Kumar Himatsingka and Rakesh Himatsingka are interested in depriving Jyotsana Rajgarhia and Anita Fatehpuria. It now appears that Jyotsana Rajgarhia and Anita Fatehpuria will have to fight for their own rights against Dipak Kumar Himatsingka and Rakesh Himatsingka. He further submitted that in the partition suit both Dipak Kumar Himatsingka and Rakesh Himatsingka are contending that the daughters have no share, therefore, it cannot be accepted that the daughters have been set up by Rakesh Himatsingka. If the theory that the daughters have been set up by Rakesh Himatsingka is not established then it cannot be said that from the fact that the revocation of the grant of probate application is filed after the date of the partition suit it follows that the daughters had all along the knowledge of the probate. If the theory that the daughters have been set up by Rakesh Himatsingka is not established then it cannot be said that from the fact that the revocation of the grant of probate application is filed after the date of the partition suit it follows that the daughters had all along the knowledge of the probate. The partition suit between Dipak Kumar Himatsingka and Rakesh Himatsingka has no relevance for the purpose of establishing that the daughters had the knowledge of probate all along for the last 14 years. If the daughters knew about the probate and did not claim to the mother’s estate then there is no reason why they should claim it now just because there is a partition suit between Rakesh Himatsingka and Dipak Kumar Himatsingka. When an offence is established it is no answer that why the accused should commit an offence at all. It was sought to be argued that this application is barred by limitation in as much as Article 137 of the Limitation Act applies and, therefore, revocation application cannot be made after three years from the grant of probate. It is submitted that limitation has no application in the case of either making application for grant of probate or for revocation of the grant of probate. He further submitted that in case of applying for grant of probate no limitation is there since the executor is in a position of trustee and he is bound to carry out the trust by taking out the probate. He relied upon a decision reported in 23 CLJ 82 where grant was revoked after 32 years in a particular case when there was absence of proper citation on minor. He also relied upon the following decisions:- 1. AIR 1931 Calcutta 713 (Haimabati Mitra Vs. Kunja Mohan Das); 2. 1977 SC 282 (Kerala State Electricity Board Trivandrum Vs. TP Kunhaliumma); 3. 1985 Punjab & Haryana 211 (Hari Narain (deceased) By L.Rs. Lalit Kumar Sharma& Ors. Vs. Subhash Chaunder & Ors.); 4. 1952 Calcutta 53 at page 61 para 12 (Indra Narayan Bera Vs. State of West Bengal); 5. AIR 1964 Patna 225 at page 230, para 10 (State of Bihar Vs. Thawardas Phgerumal); 6. AIR 1978 Calcutta Page 262 in para 5 page 263 (Dhurjati Mohan Das Vs. Balai Chandra Das); 7. 1970 SC 1433 in paragraph 11 (Cannon Dunkerley And Company Limited Vs. State of West Bengal); 5. AIR 1964 Patna 225 at page 230, para 10 (State of Bihar Vs. Thawardas Phgerumal); 6. AIR 1978 Calcutta Page 262 in para 5 page 263 (Dhurjati Mohan Das Vs. Balai Chandra Das); 7. 1970 SC 1433 in paragraph 11 (Cannon Dunkerley And Company Limited Vs. Union of India); 8. 1996 (3) SCC 310 (Gowrishankar Vs. Joshi Amba Shankar Family Trust); He submitted that Dipak Kumar Himatsingka procured the grant of probate without proving it in solemn form by making incorrect and untrue statement to the court and thereby committed fraud on the Court. Whenever in such a situation arises attention of the Court is drawn and the Court unhesitatingly sets the order simply on the ground that it was procured by practicing fraud on the Court. A decree granting probate is a judgment in rem. He further submitted that the decision reported in 35 Indian Appeals 109 (Debendra Nath Dutt Vs. Administrator-General of Bengal) a decree granting probate is a judgment in rem. He relied upon the decision reported in AIR 1971 SC 2548 para 5 (Dattatraya Vs. Rangnath Gopalrao Kawathekar dead by his legal representatives) and AIR 1983 Bombay 268 (Vasudev Daulatram Sadaramgami Vs. Sajni Prem Lalwani) have no application in the facts and circumstances of this case. In reply, Mr. Mitra submitted that the citations stated by Mr. Chowdhury has no application in the facts and circumstances of this case. We have considered the facts of this case and it appears to us that Jyotsana Rajgarhia and Anita Fatehpuria executed the Vokalatnama which has come out from the facts and the materials placed before us, it cannot be disputed that Mr. Pulak Lahiri gave consent to grant of Probate. Therefore, the question of issuing citation in case of Jyotsana Rajgarhia and Anita Fatehpuria cannot arise or can make the grant a defective proceeding since they appeared through their advocates-on-record. It is very clear from the submissions made by Mr. Chowdhury that Mr. Pulak Lahiri was called at the chamber of Prabhudayal Himatsingka and the instruction received when ladies were present and nodded their heads, which would show that they had knowledge of the fact that the application has been made for grant of Probate in the Court. After analyzing the facts of the case we do not have any doubt that Anita Fatehpuria and Jyotsana Rajgarhia signed the vokalatnama. After analyzing the facts of the case we do not have any doubt that Anita Fatehpuria and Jyotsana Rajgarhia signed the vokalatnama. It is also admitted that they acted in the manner at the behest of P.D. Himatsingka. But that cannot show that there has been any committed by Dipak in obtaining the said Probate. It is also cannot be kept aside that the Probate was challenged after the death of Prabhudayal Himatsingka and Bhagwati Prasad Himatsingka. Therefore, in our considered opinion, we hold that the Probate could not have been obtained fraudulently by Dipak. The right to apply for revocation of grant, in our opinion is correctly held by the Honble Single Judge accrues at the time grant is made by the Court and, therefore, the cause of action to apply for revocation of such grant has been made within three years from the date of grant of probate under the provisions of Article 137 of the Limitation Act, 1963. We have also noticed the decision reported in AIR 1931 Calcutta 713 (Haimabati Mitra Vs. Kunja Mohan) where the Honble Division Bench of this Court held as follows:- “It is true that in the case just referred to it was held that there was no fixed time during which an application for revocation of probate might be made but at the same time it is held that a person may be debarred by long delay in making such an application.” He also relied upon a decision reported in AIR 1977 SC 282 (Kerala State Electricity Board Trivandram Vs. T.P. Kunhaliumma) where the Supreme Court held that “Article 137 of the Limitation Act will apply to any application filed under any Act in Civil Court”. He also relied upon a decision reported in AIR 1985 Punjab & Haryana 211para 2 (Hari Narain Vs. Subhash Chander) where the Court held that Article 137 applied to application for revocation of probate and right to apply accrues from the date which the probate was granted. Therefore, there cannot be any doubt in the mind that the period of limitation for filing an application for revocation of grant should be made within 3 years from the date of grant of such probate. Therefore, there cannot be any doubt in the mind that the period of limitation for filing an application for revocation of grant should be made within 3 years from the date of grant of such probate. But the question which attracts our attention that when a party did not know about such grant of probate whether he shall get any benefit for condonation of delay in filing such an application for revocation. In the instant case, the appellant pleaded before the court and tried to establish that they were prevented by sufficient cause in making the application for revocation of the grant in question. Such sufficient cause can be stated to be on the basis of the fact and the evidence of Sri Pulak Lahiri. Revocation or amendment of a grant can be done for just cause. We have to find out what is the just cause. What the Court should consider in an application for revocation of grant of probate. It is the duty of the Court in order to repel the effect of positive testimony regarding execution, an improbability must be clear and cogent. If a person who takes it upon himself to dispute the genuineness of a Will rests his case on suspicion, the suspicion must be a suspicion inherent in the transaction itself which is challenged, and cannot be a suspicion arising out of a mere conflict of testimony. It can never be a safe or sound rule to start speculating as to what might have been the motive which impelled the testator to make an alleged Will, provided there is evidence and the Court has every right to call for such evidence and must, in fact, call for it – that the Will was in point of fact executed as required by law. The mere fact that a Will is not registered is not such a circumstances as must ipso facto vouch against the genuineness of the Will. If the attesting witnesses have been examined, the mere non-examination of the writer by itself cannot be a ground to consider for declaring the Will as not a genuine Will. The mere fact that a Will is not registered is not such a circumstances as must ipso facto vouch against the genuineness of the Will. If the attesting witnesses have been examined, the mere non-examination of the writer by itself cannot be a ground to consider for declaring the Will as not a genuine Will. Where the Will has been proved after citing the parties then there is no just cause for revocation, if any one of them challenges the validity of the Will, and wants the probate should be revoked on that ground, then it is for him to prove that Will was forged. The Court, what order should be passed has been clearly stated in the case of Promode Kumar Vs. Sephalika reported in AIR 1957 Cal 631 when the application for revocation succeeds. Therefore, if the Court is satisfied that Will was genuine and it was not obtained by practicing fraud or undue influence the prayer for revocation of the grant should be refused. (See Bibhuti Vs. Bhabesh reported in AIR 1982 Cal 374 ). The Court also has to consider when a petitioner comes to Court after considerable delay, and knowledge or an acquiescence on his part is shown, the Court will not allow him to reopen the probate unless he offers some reasonable and true explanation of the delay (see Radhashyam Vs. Ranga Sundari reported in 24 CWN 541). Where a probate has already been granted and the Will is acted upon for some years, and then if it is applied before the Court for revocation of the probate on the ground of forgery, in that case it is held that after having admitted the genuineness of the document and taken advantage of it, application for revocation of the probate cannot be made. Where an application for revocation of a probate was made after long delay, 12 years after the grant of probate, the application was rejected, having regard to the fact that it was extremely difficult to get witness about 18 years after the execution of the Will, the persons competent to give the best evidence having died (See Kali Das Vs. Ishan Chunder reported in 9 CWN 49). However, in Anil Behari Ghosh Vs. Latika Bala Dassi reported in AIR 1955 SC 566 and in Mutukdhari Vs. Ishan Chunder reported in 9 CWN 49). However, in Anil Behari Ghosh Vs. Latika Bala Dassi reported in AIR 1955 SC 566 and in Mutukdhari Vs. Smt. Prem Debi reported in AIR 1959 Pat.570, where the Court held that a mere delay is no bar to revocation, unless from attending circumstances upon the delay an inference of acquiescence or waiver can reasonably be made. The question is that whether the Court finds an appropriate facts whether it is a just cause under Section 263 which gives a direction to the Court in the matter of revocation of the grant of probate, which must be judicially exercised, having regard to the facts and circumstances of each particular case. A just cause under the section may exist apart from the invalidity of the Will and if there is a valid subsisting Will which is either proved or admitted, it will be useless to revoke the grant in many cases even if just cause be established. In Maj. Gen. Jonathan Vs. Zillah Soloman reported in AIR 1991 Bom 222 the Court held that there will be no purpose in revoking the grant for complying with the technicalities for issuing of citations and again issuing a fresh grant in the same manner especially when objection is raised by a person who was served with citation and filed no caveat. The omission to issue citations to persons who should have been apprised 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 law 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 necessary 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 [See Anil Behari’s case (Supra)]. In Anil Behari’s case (Supra) where the Supreme Court held that the omission of citation of Will which ordinarily might have been sufficiently for a revocation of the ground was not sufficient to justify the Court to revoke in special circumstances. In Anil Behari’s case (Supra) where the Supreme Court held that the omission of citation of Will which ordinarily might have been sufficiently for a revocation of the ground was not sufficient to justify the Court to revoke in special circumstances. The Supreme Court in the said decision held that Section 263 of the Act vests a judicial discretion in the Court to revoke or annul a grant for just cause. The explanation has indicated the circumstances in which the Court can come to the conclusion that “just cause” had been made out. The Supreme Court also held in the said decision that in every case it cannot be stated to be a proposition that where there is a defect in citation the Court must order a revocation or annulment of the grant. The annulment is a matter of substance and not a mere form. 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. But, as rightly pointed out by the lower appellate Court, in the present case where the validity or genuineness of the Will has not been challenged, it would serve no useful purpose to revoke the grant and to make the parties go through the mere formality of proving the Will over again. In our opinion, therefore, the omission of citation has had no effect on the regularity of the proceedings resulting in the grant of Probate. Therefore, the Supreme Court has specifically pointed out that the Court must bound themselves within the pleadings and has no right to make out a new case beyond the pleadings. In M. Ramasamy Pillai Vs. Hazarath Syed Shah reported in AIR 1992 SC 2295 where the Supreme Court held as follows:- “6. In the facts and circumstances of this case the view taken by the High Court is wrong and is liable to be set aside. A perusal of the plaint dated 15-9-1967 clearly shows that the plaintiff had come forward with a clear case that the defendant was a tenant holding over and the High Court was not right to make out a new case beyond the pleadings. A perusal of the plaint dated 15-9-1967 clearly shows that the plaintiff had come forward with a clear case that the defendant was a tenant holding over and the High Court was not right to make out a new case beyond the pleadings. In para 3 of the plaint it was stated as under:- “The defendant is in occupation of the site of the undermentioned property as a tenant ever since 1-2-1955 and is continuing as a tenant after the expiry of the period fixed in the rent deed holding over on the same terms.” Again in para 10, it was stated as under:- “As the defendant has specifically undertaken in the rent deed to surrender vacant possession of the site after the expiry of the lease period and as he is now holding over on the same terms, with the consent of the plaintiff-Thaikal, he has no right to refuse to deliver vacant possession of the site to the plaintiff-Thaikal whenever called upon to do so, particularly when the plaintiff-Thaikal requires the site for raising pucca terraced structures thereon.” In the decision of State of Jammu & Kashmir Vs. Karan Singh & Anr. reported in AIR 1997 J&K 132 where the High Court referred to a decision of Banarsi Das & Kundan Lal Vs. Kanshi Ram reported in AIR 1963 SC 1165 where the Hon’ble Supreme Court held as follows:- “…….a new plea of limitation which was not purely one of law but a mixed question of law and facts should not have been allowed to be raised for the first time at the stage of arguments in second appeal by the High Court especially when it was raised by the non-contesting defendant who had not filed a written statement in the suit. If the High Court felt overwhelmed by the provisions of S.3 of the Limitation Act, it would at least have given an opportunity to the parties which supported the decree of the trial court to meet the plea of limitation by amending their pleadings. If the High Court felt overwhelmed by the provisions of S.3 of the Limitation Act, it would at least have given an opportunity to the parties which supported the decree of the trial court to meet the plea of limitation by amending their pleadings. After following the pleadings to be amended, the High Court should have framed an issue and remitted it for a finding to the trial court under Order 41, Rule 25 of the Code of Civil Procedure.” “In view of the authorities referred to above on the question of new plea having been taken in the appeal for the first time and that too without seeking to amend the writ petition, we are clearly of the view that it would not be proper for the appellate court to allow such a new plea to be taken by the petitioner in order to make out a new case.” In Haimabati Mitra Vs. Kunja Mohan reported in AIR 1931 Calcutta 713 where the High Court held that there is no fixed time during which an application for revocation of a probate might be made. We have noticed in Kerala S.E. Board Vs. T.P. Kunhaliumma reported in AIR 1977 SC 282 where the Supreme Court held as follows:- “18. alteration of the division as well as the change in the collocation of words in Article 137 of the Limitation Act 1963 compared with Article 181 of the 1908 Limitation Act shows that applications contemplated under Article 137 are not applications confined to the Code of Civil Procedure. In the 1908 Limitation Act there was no division between applications in specified cases and other application as in the 1963 Limitation Act. The words “any other application” under Article 137 cannot be said on the principle of edjusdem generis to be applications under the Civil Procedure Code other than those mentioned in Part I of the third division. Any other application under Article 137 would be petition or any application under any Act. But it has to be an application to a court for the reason that Sections 4 and 5 of the 1963 Limitation Act speak of expiry of prescribed period when Court is closed and extension of prescribed period if applicant or the appellant satisfies the court that he had sufficient cause for not preferring the appeal or making the application during such period.” “22. The conclusion we reach is that Article 137 of the 1963 Limitation Act will apply to any petition or application filed under any Act to a civil court. With respect we differ from the view taken by the two Judge Bench of this Court in Athani Municipal Council case ( AIR 1969 SC 1335 ) (Supra) and hold that Article 137 of the 1963 Limitation Act is not confined to applications contemplated by or under the Code of Civil Procedure. The petition in the present case was to the District Judge as a court. The petition was one contemplated by the Telegraph Act for judicial decision. The petition is an application falling within the scope of Article 137 of the 1963 Limitation Act.” The Division Bench of Panjub & Harayana High Court in Hari Narain Vs. Subhash Chander reported in AIR 1985 P&H 211 Para 2 where the Court held as follows:- “…We are thus firmly of the opinion there being no controversy between the parties about the fact that the District Judge while dealing with the application in question was acting as a civil Court that the provisions of Art.137 of the Act clearly govern the situation and the respondent could file application only within three years from the date when the right to apply for the setting aside of the probate accrued to him. This right obviously accured to him right from the time the probate was granted in favour of the appellant. Since at the starting point of time of this period of limitation, the respondent was under a legal disability on account of his minority, he, in terms of S.6 of the Act could certainly make the application in question within the same period, i.e. 3 years after the ceassation of his disability, i.e. on his attaining majority on 28th March, 1970. In the light of this provision of law, he could file the application up to 27th March, 1973. This was the outer limit of time for him to initiate the present proceedings, but he actually filed the application on 12th March, 1974. The ignorance on the applicant’s part if it is accepted for argument’s sake, about the accrual of the right in his favour for setting the probate set aside could not postpone the starting point of limitation. This was the outer limit of time for him to initiate the present proceedings, but he actually filed the application on 12th March, 1974. The ignorance on the applicant’s part if it is accepted for argument’s sake, about the accrual of the right in his favour for setting the probate set aside could not postpone the starting point of limitation. He had to make this application within 3 years from the cessation of the legal disability from which he suffered on the date the right to apply had accrued to him. Thus, his application was apparently barred by limitation and had essentially to be dismissed in the face of S.3 of the Act.” In Gannon Dunkerley & Company Vs. Union of India reported in AIR 1970 SC 1433 where the Supreme Court held that there is no right to sue until there is an accrual of the right asserted in the suit, and its infringement or at least a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted. Therefore, in the said decision it appears that the Limitation Act will apply from the date of the right to sue accrues. We have also noticed that in Gowrishankar and Anr. Vs. Joshi Amba Shankar Family Trust & Ors. reported in 1996 (3) SCC 310 Para 17 where the Supreme Court held as follows:- “For the foregoing discussion it must be held that the trustees obtained the permission to sell the property to the purchasers practising fraud upon the court and in view of the following observation of this Court in S.P. Chengalvaraya Naidu Vs. Jagannath: (SCC p. 2, para 1) “It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity andnon est in the eyes of law. Such a judgment/decree – by the first court or by the highest court – has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings.” The question whether the purchasers purchased the property bona fide subsequent to the permission so granted without notice of the appellants’ offer is immaterial in this appeal. It can be challenged in any court even in collateral proceedings.” The question whether the purchasers purchased the property bona fide subsequent to the permission so granted without notice of the appellants’ offer is immaterial in this appeal. We therefore allow this appeal, set aside that impugned order and keeping in view the fact that both the appellants and the purchasers subsequently offered to purchase the property for Rs.19,40,000, remit the matter to the Division Bench of the High Court to call for fresh offers from the, which, needless to say, shall not be less than the above amount and grant permission to sell the same at the higher offer received on such terms as law and equity may demand. The appellants shall be entitled to costs of this appeal from the trustees which we assess at Rs.10,000. In the decision of Dattatraya Vs. Rangnath reported in AIR 1971 SC 2548 where the Supreme Court held as follows:- “….Ordinarily no one is expected to sign a document without knowing its contents but if it is pleaded that the party who signed the document did not know the contents of the document then it may in certain circumstances be necessary for the party seeking to prove the document to place material before the court to satisfy it that the party who signed the document had the knowledge of its contents.” We have also noticed that in Vasudev Daulatram’s case (Supra) where the law on the point of Limitation can be summarized as follows:- “Under the Limitation Act, no period is advisedly prescribed within which a petition for probate or letters of administration or succession certificate must be made after the deceased’s death. The law on the point can be summarised thus:- (1) Under the Limitation Act no period is advisedly prescribed within an application for probate, letters of administration or succession certificate must be made; (2) The assumption that under Art. 137 the right to apply necessarily accrues on the date of the death of the deceased, is unwarranted; (3) Such an application is for the Court’s permission to perform a legal duty created by a Will or for recognition as a testamentary trustee and is a continuous right which can be exercised any time after the death of the deceased, as long as the right to do so survives and the object of the trust exists or any part of the trust, if created, remains to be executed; (4) The right to apply would accrue when it becomes necessary to apply which may not necessarily be within 3 years from the date of the deceased’s death; (5) Delay beyond 3 years after the deceased’s death would arouse suspicion and greater the delay, greater would be the suspicion; (6) Such delay must be explained, but cannot be equated with the absolute bar of limitation; and (7) Once execution and attestation are proved, suspicion of delay no longer operates.” Mr. Mitra drew our attention to the case of Hari Narain (deceased) By L.Rs. Lalit Kumar Sharma& Ors. Vs. Subhash Chaunder & Ors reported in 1985 Punjab & Haryana 211. In the said decision the Court held that the Article 137 of the Limitation Act applies in an application for revocation of Probate made under Section 263 of the Succession Act. The Court further held that the application could be filed only within three years from the date of right to apply accrues. The Court further held that although no limitation prescribed for filing of application for revocation of Probate under Succession Act does not mean that provisions of Limitation Act would not apply in such cases. The Punjab and Haryana High Court also considered the decision of the Supreme Court in Kerala State Electricity Board Vs. T.P. Kunhaliumma reported in AIR 1977 SC 282 where the question raised in that case was, whether the residury Article 137 of the Act would apply to the proceedings filed under Sections 10 and 16(5) of the Telegraph Act, 1985 read with Section 51 of the Electricity Act, 1910, relating to the claim of compensation. T.P. Kunhaliumma reported in AIR 1977 SC 282 where the question raised in that case was, whether the residury Article 137 of the Act would apply to the proceedings filed under Sections 10 and 16(5) of the Telegraph Act, 1985 read with Section 51 of the Electricity Act, 1910, relating to the claim of compensation. While answering the question, their Lordships, after a thorough analysis of the provisions of the Act, held as follows:- “The conclusion we reach is that Article 137 of the 1963, Limitation Act will apply to any petition or application filed under any Act to a civil Court. With respect we differ from the view taken by the two Judges Bench of this Court in Athani Municipal Council case, AIR 1969 SC 1335 had hold that Art.137 of the 1963. Limitation Act is not confined to application contemplated by or under the Code of Civil Procedure. The petition in the present case was to the District Judge as a Court. The petition was one contemplated by the Telegraph Act for judicial decision. The petition is an application falling within the scope of Art.137 of the 1963 Act.” Therefore, the Punjab and Haryana High Court also considered the different situations which may arises when the Act did not provide for a different period in limitation. In fact, the High Court dealt with the matter in connection with revocation of a grant of Probate under Section 263 of the Succession Act was considered by the Court and the Court held that the concern law may not have a prescribed law of limitation but the Court opined that while dealing with the application in question by the Court the Court was acting as a Civil Court and the provisions of Article 137 of the Limitation Act clearly govern the situation and the Court held that the application for revocation could have been filed only within three years from the date with the right of appeal for setting aside of Probate accrued to him. In the case of Pandurag Dhondi Chougule and Ors Vs Maruti Hari Jadhav and Ors reported in AIR 1966 SC 153 the Supreme Court held as follows:- “It is well-settled that a plea of limitation or a plea of res judicata is a plea of law which concerns the jurisdiction of the Court which tries the proceedings. In the case of Pandurag Dhondi Chougule and Ors Vs Maruti Hari Jadhav and Ors reported in AIR 1966 SC 153 the Supreme Court held as follows:- “It is well-settled that a plea of limitation or a plea of res judicata is a plea of law which concerns the jurisdiction of the Court which tries the proceedings. A finding on these pleas in favour of the party raising them would oust the jurisdiction of the Court, and so, an erroneous decision on these pleas can be said to be concerned with questions of jurisdiction which fall within the purview of S. 115 of the Code. But an erroneous decision on a question of law reached by the subordinate Court which has no relation to questions of jurisdiction of that Court, cannot be corrected by the High Court under S. 115.” In the case of State Bank of India Vs. B.S. agriculture Industries (I) reported in (2009) 5 SCC 121 the Supreme Court allowed the appeal on the sole ground of limitation and the Supreme Court held that Section 24-A of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the said Act’) is peremptory in nature and requires the consumer forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The consumer forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. It is the duty of the consumer forum to examine on its own whether the complaint has been filed within the limitation period prescribed thereunder. As a matter of law, the consumer forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. It is the duty of the consumer forum to take notice of Section 24-A and give effect to it. If the complaint is barred by time and yet, the consumer forum decides the complaint on merits, the forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside. It is the duty of the consumer forum to take notice of Section 24-A and give effect to it. If the complaint is barred by time and yet, the consumer forum decides the complaint on merits, the forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside. The Supreme Court found that the complaint which was filed before the District Forum, the State Commission and the National Commission is barred by time ought to have been dismissed as such but curiously this aspect was not examined by any of the consumer. Although specific plea to this effect was taken by the Bank and the Supreme Court held that there is no application of condonation of delay nor any sufficient cause shown and, therefore, the question of condonation of delay in filling the application does not arise. Our attention has also been drawn to Paragraph 15 of the said decision which is set out hereunder:- “In a recent case of Gannmani Anasuya Vs. Parvatini Amarendra Chowdhary this Court highlighted with reference to Section 3 of the Limitation Act that is for the court to determine the question as to whether the suit is barred by limitation or not irrespective of the fact that as to whether such a plea has been raised by the parties; such a jurisdictional fact need not be even pleaded.” We have also noticed that in the case of Chittaranjan Das Vs. Sanhita Das reported in 85 CWN the Court held that in the said decision the Court relied upon another decision of this High Court in Bhaktibhusan Vs. Khagendra reported in AIR 1968 Cal. 69 . The Court has power to condone the delay but it is the duty of the party to apply before the Court under Section 5 of the Limitation Act, praying for condonation of delay and to show sufficient cause as envisaged by Section 5. It is the duty of the applicant to bring all the materials before the Court to show that there were sufficient reasons for the applicant coming to Court out of time or making formal application for condonation of delay under Section 5 of the Limitation Act, and the delay may be condoned on a proper application. It is the duty of the applicant to bring all the materials before the Court to show that there were sufficient reasons for the applicant coming to Court out of time or making formal application for condonation of delay under Section 5 of the Limitation Act, and the delay may be condoned on a proper application. But when there is no such application and when there is no oral prayer for condonation of delay or on the contrary it has been argued that the application was within time as has been argued in this case the dismissal of such application is inevitable. He also relied upon the decision of The State of Punjab Vs. Hari Singh and Anr. reported in AIR 1974 SC 1168 where the Supreme Court held that principle laid down by this Court in apprising evidence, that Courts do not, in this Country, act on the maxim: “Falsus in uno falsus in omnibus”. In considering the effect of each allegation proved to be incorrect or the likelihood of its being true or untrue, we have to view it in the light of a whole setting or concatenation of facts in each particular case. He also relied upon the decision of Sohrab and Anr Vs. The State of Madhya Pradesh reported in AIR 1972 SC 2020 where the Supreme Court held as follows:- “Falsus in uno falsus in omnibus is not a sound rule for the reason that hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishments. In most cases, the witnesses when asked about details venture to give some answer, not necessarily true or relevant for fear that their evidence may not be accepted in respect of the main incident which they have witnessed but that is not to say that their evidence as to the salient features of the case after cautions scrutiny cannot be considered though where the substratum of the of the prosecution case or material part of the evidence is disbelievable it will not be permissible for the Court to reconstruct a story of its own out of the rest.” He also relied upon the case of M. Ramasamy Pillai (dead) by LRs. Vs. Vs. The Hazarath Syed Shah Mian Sakkaf Khadiri Thaikal reported in AIR 1992 SC 2295 where the Supreme Court held that the High Court cannot make out a new case beyond pleadings. (See AIR 1997 Jammu and Kashmir 132)He also relied upon the decision of Lanka Venkateswarlu (Dead) By LRS.Vs. State of Andhra Pradesh & Ors. reported in 2011 (4) SCC 363 where theSupreme Court has observed that the Courts in this country adopted a liberal approach in considering the application for condonation of delay on the ground of sufficient cause under Section 5 of the Limitation Act. It is true that rules of limitation are not meant to destroy the rights of the parties. They are meant to see that the parties do not restore to dilatory tactics. The Supreme Court again observed in the case of Mithailal Dalsangar Singh Vs. Annabai Devram Kini reported in (2003) 10 SCC 691 where the Supreme Court held as follows:- “The courts have to adopt a justice-oriented approach dictated by the uppermost consideration that ordinarily a litigant ought not to be denied an opportunity of having a lis determined on merits unless he has, by gross negligence, deliberate inaction or something akin to misconduct, disentitled himself from seeking the indulgence of the Court. The opinion of the trial Judge allowing a prayer for setting aside abatement and his finding on the question of availability of ‘sufficient cause” within the meaning of sub-rule (2) of Rule 9 of Order 22 and of Section 5 of the Limitation Act, 1963 deserves to be given weight, and once arrived at would not normally be interfered with by superior jurisdiction.” In the backdrop of the said decision it appears to us that the Trial Court did not consider the facts of this case and the conduct of the parties who applied before the Court even after 12 years knowing fully well that the Wills were left out by their parents. Furthermore, the daughter is an attesting witness to the Will and she did not raise any objection whatsoever for a long time. We have considered all the aspects of the matter and we find that there is a departure from the rule made by the Trial Court since the Trial Court held that Article 137 applies in the matter and further held that right to apply for revocation of grant is allowed. We have considered all the aspects of the matter and we find that there is a departure from the rule made by the Trial Court since the Trial Court held that Article 137 applies in the matter and further held that right to apply for revocation of grant is allowed. Therefore, after holding the same, in our considered opinion, the Trial Court ought not to have further decided the other questions since the application was barred by provisions of law and that too application has been made almost after 12 years. It further appears to us that the annulment is a matter of substance and not of mere form of Section 263 of the Succession Act vests a judicial discretion in the Court to revoke or annul a grant for just cause. In the instant case, it appears that the Will is admitted. It has not been challenged on the ground either not genuine or had not been fraudulently executed where the validity or genuineness of the Will has not been challenged as has been held by the Supreme Court. It would serve no useful purpose to revoke the grant and to make the purpose go through the mere formalities making the Will over again (see Anil Behari Ghosh Vs. Latika Bala Dassi reported in AIR 1955 SC 566 ) The Supreme Court further held in the said decision that the omission of citation has no effect on the regularity of the proceedings resulting in the grant the situation of the instant case is identical. We cannot brush aside the facts that Anita Fatehpuria herself forwarded the Will by a hand written letter dated 13th November, 1985 to Bhagwati Himatsingka. The affidavit filed by Anita Fatehpuria (Exhibit 19) stating that both her mother and father had died leaving Wills and their estate had been bequeathed to Dipak. It is admitted by them on evidence that their parents used to treat Dipak as their son. Further, the sale of Mandeville Gardens property in 1991 was never questioned or any claim was forwarded in respect of the sale proceeds by the daughters. On 29th February, 1988 Jotsana Rajgarhia and Anita Fatehpuria filed written statement in the Bank Suit No. 118 of 1985 specifically stated that she had not inherited anything from their mother Usha Himatsingka. Further, the sale of Mandeville Gardens property in 1991 was never questioned or any claim was forwarded in respect of the sale proceeds by the daughters. On 29th February, 1988 Jotsana Rajgarhia and Anita Fatehpuria filed written statement in the Bank Suit No. 118 of 1985 specifically stated that she had not inherited anything from their mother Usha Himatsingka. No amendment was filed in respect of such written statement and it appears to us that the Hon’ble Single Judge did not take any note of those facts in arriving the just cause to revoke the grant. It further appears that no claim certificate was executed by the daughters on 5th January, 1982 relinquishing their rights or claim in respect of the Flat No. 41 Somerset House, Tyabji Bagh Co-operative Housing Society, Bombay and further the public notices advertised on behalf of the appellant in Kolkata and Bombay on 19th September, 1988 and 11th October, 1988 which conclusively prove beyond any doubt that the Appellant never attempted to keep secret or conceal the grant of probate obtained by them. We do not find that the effect of grant of Probate was ever kept secrete and concealed by the appellant. After considering the application we find that the case has been made out by the appellant under Order 41 Rule 27 of the Code of Civil Procedure to allow them to adduce the evidence in terms of Prayer (b) of the said application. In the decision of Anil Beh-ari Ghosh Vs. Latika Bala Dassi reported in AIR 1955 SC 566 wherein it has been held that after analysing the facts the suit was instituted within the period of limitation. After considering the facts from the date of starting point of limitation and till the filing of the suit by the plaintiffs were within the period of limitation. Therefore, we do not think that this decision can be a help to Mr. Chowdhury on the ground of limitation. After summarizing the facts and the points involved in this matter it appears to us that steps taken by the respondents in challenging the Will in question. No application was filed by them, praying for condonation of delay in filing the said application, although the application was filed after 12 years. Chowdhury on the ground of limitation. After summarizing the facts and the points involved in this matter it appears to us that steps taken by the respondents in challenging the Will in question. No application was filed by them, praying for condonation of delay in filing the said application, although the application was filed after 12 years. It is not in dispute that the Hon’ble Single Judge also held that Article 137 would apply in case of filing of an application for revocation of Probate granted by the Court within the period of limitation as mentioned in Article 137 even after holding the same and even without filing of any condonation application to condone the delay of such 12 years. The Court had allowed the application omitting the said rule, which has also been upheld in Hari Narain Case (Supra) and in Kerala State Electricity Board Case (Supra) by the Supreme Court. Therefore, it appears to us that the said position was escaped from the mind of the Hon’ble Single Judge in allowing the application even without any prayer being made before the Court for condonation of delay. We have also found from the fact that no sufficient cause has also been shown by the respondents before the Court. Therefore, on that question we uphold the contentions of Anindya Kumar Mitra appearing in support of this appeal. It also appears to us that the Vakalatnama which was executed by the respondents and filed before the Court are duly signed by them. The Court duly hold that the signatures on both the Vakalatnamas in question admittedly signed by the respondents with regard to the questions put to the learned Advocate at that point of time filed the Vakalatnama on behalf of the respondents. We found in the evidence of the learned Advocate (Mr. Pulak Lahiri) that the consent in the presence of the aforesaid two ladies Mr. P.D. Himatsingka instructed Mr. Pulak Lahiri to give consent on their behalf. It is admitted that both the ladies duly said ‘yes’, signifying their consent should be given on their behalf in the said proceedings which is cannot be brushed aside in considering the facts of this case. We also found that Mr. Pulak Lahiri is an uninterested witness. P.D. Himatsingka instructed Mr. Pulak Lahiri to give consent on their behalf. It is admitted that both the ladies duly said ‘yes’, signifying their consent should be given on their behalf in the said proceedings which is cannot be brushed aside in considering the facts of this case. We also found that Mr. Pulak Lahiri is an uninterested witness. He came before the Court as forced witness and after 13 years from the grant of Probate, it is impossible for any witness to remember every event which happened 13 years ago and could have given flawless evidence before the Court. Therefore, in these circumstances, we must rely upon the fact that consent was given by the said two ladies at the instance of P.D. Himatsingka, assuming the said fact we do not find any answer that why the said respondents did not come before the Court to withdraw such consent by filing a petition and what was the reason to apply before the Court after almost 13 years for revocation of the Probate in question. Therefore, in these circumstances, we find that these facts, in our considered opinion, escaped from the mind of His Lordship. In these circumstances, we hold that it was within the knowledge of the said respondents to apply before the Court in time and, in fact, they have not taken any steps because at that point of time, it appears to us, that they did not have any intention to challenge the Probate. Furthermore, it appears to us that they have never challenged the Will in question and, therefore, on the ground that the Will is forged one. Therefore, it appears to us that it does not come within the purview of ‘Illustrations’ to Section 263 of the Indian Succession Act, 1925. Hence, we accept the contention of Mr. Mitra on that ground also. We hold in the facts and the materials placed before us that the facts and documents as discussed in the preceding paragraphs would conclusively establish that both the sisters had the knowledge of the Will and knowingly acted upon the Will and had accepted the Will. The very knowledge of the Will, in our opinion, disentitled the respondents to apply for revocation of grant. The very knowledge of the Will, in our opinion, disentitled the respondents to apply for revocation of grant. We also have been able to find out from the application filed under Order 41 Rule 27 of the Code of Civil Procedure that public notices were also published on behalf of the appellant in different leading newspapers in Kolkata and Bombay on 19th September, 1988 and 11th October, 1988 which are disclosed as additional evidences before us which conclusively proved that there is no question of concealing the grant of Probate by the appellant at that point of time also. Therefore, it cannot be said that the respondents had no knowledge of the Will as tried to be contended before us and, accordingly, we hold that such facts have escaped from the mind of the Hon’ble Single Judge. We further hold that the said respondents had knowledge of the Will and the steps taken by the appellant in the matter were within their knowledge but did not choose to come before the Court at that time or soon thereafter. Such conduct of the respondents can not be brushed aside in deciding this appeal. In our opinion, all such material facts escaped from His Lordship’s mind. For the reasons stated hereinabove, we allow the appeal and set aside the order passed by the Hon’ble Single Judge. Xerox certified copy of this judgment, if applied for, be supplied to the parties on usual undertakings. I agree,