JUDGMENT : SANJAY KUMAR DWIVEDI, J. Heard Mr. Manjul Prasad, the learned Senior counsel assisted by Mr. Baban Prasad the learned vice counsel appearing on behalf of the appellants as well as Mr. Ashutosh Anand, the learned counsel appearing on behalf of the respondent State and Mr. Amitesh Kumar Geasan, the learned counsel appearing on behalf of the respondent no.1. 2 . I.A. No.5508 of 2024 has been filed for condonation of delay of 184 days occurred in preferring the instant appeal. 3 . Learned counsel appearing on behalf of the appellants submits that on the wrong notion initially the impugned order was challenged in C.M.P being C.M.P.No.1196 of 2023. He submits that in the same C.M.P, it was found that the C.M.P was not maintainable and only the appeal can be maintained which was withdrawn by order dated 17.05.2024 with liberty to file the appeal and thereafter the present appeal has been filed. He submits in view of that, the delay has occurred. 4 . The learned counsel appearing on behalf of the respondent no.1 opposed the prayer and submits that proper explanation is not there. 5 . Learned counsel appearing on behalf of the Deputy Commissioner, Giridih/ respondent no.2 submits that it is upon the Court to take into consideration about the filing of the case in wrong forum. 6. It is an admitted position that the said order was challenged in C.M.P. being C.M.P.No.1196 of 2023 which was dismissed as withdrawn with liberty to file the appeal and pursuant to that, the instant appeal has been filed. It is well settled that if the wrong forum has inadvertently been chosen, that period can be condoned and such delay has occurred in the case in hand and the Court finds that sufficient ground has been made out to condone the delay and as such, the delay of 184 days in preferring the instant appeal is, hereby, condoned. 7. The instant I.A filed for condonation of delay stands allowed and disposed of. 8. The learned counsel for the appellants and the respondents have addressed the Court in the main appeal. 9. 7. The instant I.A filed for condonation of delay stands allowed and disposed of. 8. The learned counsel for the appellants and the respondents have addressed the Court in the main appeal. 9. The instant appeal has been filed under Order IXL Rule 1(f) of the CPC for setting aside the order dated 5.9.2023 passed in Revocation Case No.4 of 2020 under section 263 of Indian Succession Act for revocation of Probate Certificate Dated 22.05.2013 whereby the learned court has been pleased to struck off the defense of the appellants. 10. Mr. Manjul Prasad, the learned Senior counsel appearing on behalf of the appellants submits that the respondent no.1, Smt. Ratanjot Kaur, daughter of late Sadilal Bagga has filed an application under section 263 of the Indian Succession Act for setting aside the Probate Certificate Dated 22.05.2013 granted in Probate Case No.12 of 2011 and the order dated 05.03.2013 passed in the said Probate Case from the Court of Principal District Judge, Giridih, on the grounds mentioned in the petition claiming herself to be daughter of one Sadilal Bagga, and the said petition is annexed as Annexure-1. He submits that the appellants herein have appeared in the said revocation case and have filed written statement on 09.09.2021 challenging inter-alia the maintainability of the instant revocation case on various grounds including limitation, locus standi as well as that the Probate Certificate has been acted upon written statement contained in Annexure-2. He then submits that Revocation Case No.04 of 2020 has been filed by the Power of Attorney Holder Vikram Kumar Singh son of Shri Shankar Kumar Singh who has sworn affidavit of Revocation Case No.04 of 2020 and thereafter the matter remained pending due to Covid-19 pandemic. He submits that the learned court by the impugned order for non-production of the Will has been pleased to struck off the defense of the appellants herein and that has prejudice the case of the appellants. He submits that one application was filed on behalf of the appellant calling upon the respondent no.1 to file her Original School Living Certificate and College Leaving Certificate in the court to find out the paternity of the respondent no.1, however, the same was rejected by the learned court saying that the appellants will not be allowed to compel the respondent no.1 to produce the same. He submits that the Probate Case Certificate was granted on 22.05.2013 and the Revocation Case was filed on 07.03.2020 that was barred by time. He further submits that even presuming that the said impugned order has been passed on the strength of Order XI Rule 21 of the CPC that cannot be in view of the proceeding arising out under the Indian Succession Act. He submits that there is provision under section 295 to convert the probate case in the form of suit if there is contest. He submits that the said revocation case itself is barred by limitation and to buttress his argument, he relied in the case of Ramesh Nivrutti Bhagwat v. Surendra Manohar Parakhe reported in AIR 2019 SC 4948 and referred to paragraph nos.12 and 16 of the said judgment, which are as under: 12 . The Indian Succession Act, 1925 does not prescribe a specific period of limitation for the grant of probate, or for moving an application for cancellation of probate or letters of administration. The residuary entry Article 137 of the Act, which covers proceedings for which no period of limitation is stipulated in the Act, provides for a three year period of limitation. Article 137 reads as follows: Description Period of limitation Time from which period begins to run. 37. Any other application for which no period of limitation is provided elsewhere in this Division. Three years When the right to apply accrues. 16 . The decision in Lynette Fernandes v. Gertie Mathias, (2018) 1 SCC 271 , dealt with the precise issue of the period of limitation applicable for an application for cancellation of a probate or letters of administration. This court held as follows: “One must keep in mind that the grant of probate by a Competent Court operates as a judgment in rem and once the probate to the Will is granted, then such probate is good not only in respect of the parties to the proceedings, but against the world. If the probate is granted, the same operates from the date of the grant of the probate for the purpose of limitation Under Article 137 of the Limitation Act in proceedings for revocation of probate. In this matter, as mentioned supra, the Appellant was a minor at the time of grant of probate. She attained majority on 09.09.1965. She got married on 27.10.1965. In this matter, as mentioned supra, the Appellant was a minor at the time of grant of probate. She attained majority on 09.09.1965. She got married on 27.10.1965. In our considered opinion, three years limitation as prescribed Under Article 137 runs from the date of the Appellant attaining the age of majority i.e. three years from 09.09.1965. The Appellant did not choose to initiate any proceedings till the year 25.01.1996 i.e., a good 31 years after she attained majority. No explanation worthy of acceptance has been offered by the Appellant to show as to why she did not approach the Court of law within the period of limitation. At the cost of repetition, we observe that the Appellant failed to produce any evidence to prove that the Will was a result of fraud or undue influence. The same Will has remained unchallenged until the date of filing of application for revocation. No acceptable explanation is offered for such a huge delay of 31 years in approaching the Court for cancellation or revocation of grant of probate.” 11. On the point of CPC being not applicable, Mr. Prasad, the learned Senior counsel appearing on behalf of the appellants has relied in the case of Mrs. Nalini Navin Bhagwati and Others v. Chandravandan M. Mehta reported in AIR 1997 SC 1055 and referred to paragraph no.7 of the said judgement which is as under: 7 . But when the grant of probate or letter of administration is sought to be revoked, it is not clear to what nomenclature would be ascribed to it and what procedure would be adopted for its disposal. Take for instance a situation when the suit is decreed ex parte. Order IX Rule 13 provides for making of an application to set aside the decree on proof of certain grounds ex parte decree gets set aside. Similarly, when the suit was dismissed for default, under Order IX Rule 9 an application would be filed and on proof of the circumstances for absence, the order would be set aside and suit would get restored. Similarly, when probate or letter of administration is granted and it is sought to be revoked, Section 263 provides for the grounds on the basis of which it would be revoked. When the grounds are sought to be proved, the question is: whether such an application would be treated to be a suit? Similarly, when probate or letter of administration is granted and it is sought to be revoked, Section 263 provides for the grounds on the basis of which it would be revoked. When the grounds are sought to be proved, the question is: whether such an application would be treated to be a suit? We are of the considered view that an application to revoke probate or letter of administration would be treated as miscellaneous application and may be disposed of on the fact situation in an appropriate case either summarily or after recording evidence. The application to revoke the probate or letter of administration thus may be disposed of by the District Judge either summarily or in a given situation where it requires proof of the facts by adduction of evidence by the parties by recording such evidence as is adduced by the parties. The burden will be on the applicant to prove the facts to revoke the probate or letter of administration and the respondent who obtained probate or letter of administration has to disprove the contentions of the applicant. In that situation, based upon the given facts situation, it will be for the Court to dispose it of either summarily of after giving opportunity to both the parties to adduce evidence and consideration thereof. Under these circumstances, it is not necessary that the application for revocation of 4/15/25, 12:09 PM Nalini Navin Bhagwati VS Chandravadan M. Mehta about:blank 2/3 the probate or letter of administration would be treated as a suit as a contemplated under Section 295 of the Act. If the contention of Shir Puri merits acceptance, then any proceedings under the application to revoke the probate or letter of administration should be treated as a suit: the applicant cannot prove the will and at the same time cannot contend that the will was not validly executed. Therefore, it would be self contradictory to adopt such a procedure. Accordingly, we are of the view that the procedure required under Section 295 need not be adopted for disposal of the application filed under Section 263 for revocation of the probate or the letter of administration. It would be treated as miscellaneous application and disposed of as indicated earlier according to the given fact situation. Accordingly, we are of the view that the procedure required under Section 295 need not be adopted for disposal of the application filed under Section 263 for revocation of the probate or the letter of administration. It would be treated as miscellaneous application and disposed of as indicated earlier according to the given fact situation. In fact, the Bombay High Court came to consider the question, not directly on this issue but in an analogous situation in Narbheram Jivaram Purohit v. Jevallabh Harijivan. Therein, the learned single Judge had held that the proper procedure for revocation of probate granted by the High Court is by way of a petition filed in the testamentary and intestate jurisdiction of the Court, and not by way of suit in its Ordinary Original Civil Jurisdiction. In other words, the Court indicated that it need not be treated as a suit on the original side of the Court but it could be disposed of as an application independent of the suit. Thus, we hold that the High Court was clearly in error in reaching the conclusion that it should be treated as a suit and disposed of under Section 295. 12. Relying on the said judgment, he submits that if the case is contentious, then only section 295 of the Indian Succession Act will come into play. 13. On the same line, he relied further relied in the case of M/s Lynette Fernandes v. Mrs. Gertie Mathias Since Deceased by LRS reported in AIR 2017 SC 5453 . On this ground, he submits that merely because the Will has not been produced in the revocation case, the strucking down of defense of the appellants is not in accordance with law. On this ground, he submits that the impugned order may kindly be set aside. 14. The learned counsel for the respondent no.1 has opposed the prayer and submits that the learned court has rightly passed the order. He submits that in view of that the Will was not produced, the learned court has rightly passed the order. According to him, in light of Order XI Rule 21 CPC the learned court has rightly passed the order. So far as the limitation is concerned, he submits that it can be a ground of arguing with the revocation case. He submits that in view of that the Will was not produced, the learned court has rightly passed the order. According to him, in light of Order XI Rule 21 CPC the learned court has rightly passed the order. So far as the limitation is concerned, he submits that it can be a ground of arguing with the revocation case. He submits that the original document has been substituted by the certified copy and in view of that the learned court has rightly passed the order. 15. The learned counsel for the Deputy Commissioner submits that Indian Succession Act itself is a complete statute and every provision has been made therein and for deciding the contested probate case under section 295 of the Indian Succession Act is there. 16. It is an admitted position that the probate certificate was granted on 22.05.2013 and the revocation case was filed on 07.03.2020 and that has been filed after lapse of about seven years and in view of that, two judgments have been relied by the learned counsel for the appellants rendered in the case of Ramesh Nivrutti Bhagwat v. Surendra Manohar Parakhe as well as M/s Lynette Fernandes v. Mrs. Gertie Mathias Since Deceased by LRS (supra), the limitation will apply, however, that is kept open to be decided by the learned court who is in seisin with the revocation case. 17. It has been pointed out that Ratanjot Kaur is the daughter of Pritam Singh Bagga wherein probate was granted in favour of Sarabjit Singh and the said Will has been taken by late Sarabjit Singh. It is contended that Ratanjot Kaur is not related to Shadilal Bagga rather she is related to Pritam Singh Bagga and that is a disputed fact that can be decided in the revocation case. 18. Section 70 of the Indian Succession Act, 1925 provides that no unprivileged Will or Codicil, nor any part thereof shall be revoked otherwise than by marriage, or by another Will or Codicil, or by some writing declaring an intention to revoke the same and executed in the manner in which an unprivileged Will is hereinbefore required to be executed, or by the burning, tearing or otherwise, destroying the same by the testator or by some person in his presence and by his direction with the intention of revoking the same. The section is in negative terms having a mandatory content and provides the mode and circumstances under which an intention to revoke a Will can be established. The onus is on the objector who relies on the revocation to prove that the Will has been revoked after it has been proved to have been duly executed, by proving the various circumstances, such as, marriage, burning, tearing or destroying of the Will. 19. There are many circumstances that has to be taken into consideration in case of revocation of the probate. When there is no obvious reason or clear motive for the testator to revoke the Will and yet the Will is not found on the death of the testator it may well be that the Will was misplaced or lost or was stolen by the interested persons, however, these grounds are kept open to be decided in the pending revocation case after providing opportunity to all the sides. 20. In view of the above reasons to struck down the defense of the appellant herein merely because not producing of the Will appears to be not correct as the onus lies upon the objector to prove that fact as to how the Will was not correct. As such, impugned order dated 05.09.2023 passed in Revocation Case No.4 of 2020 is set aside. 21. The learned court will allow the appellant to take the defense and if any witness has been examined on behalf of both the sides, the learned court will allow to take the chief and cross-examine by both the sides. 22. This appeal is allowed in above terms and disposed of. 23. This order will not prejudice the case of the either parties and the learned court will decide revocation case on its own merit and what has been discussed herein above that was only with regard to strucking of the defense of the appellant herein. 24. Pending petition if any also stands disposed of accordingly.