SOUMEN SEN,J. - (1.) This contentious cause is now sought to be disposed of on the basis of a memorandum of settlement arrived at between the parties.
(2.) The probate court is required to decide the validity and genuineness of the Will. It operates as a declaration in rem. Probate cannot be granted on the basis of the terms of settlement arrived at between the parties. Any such grant would be defective and contrary to law. In AEG Caripeat v. A.Y. Derderian reported in AIR 1961 Cal 359 it has been categorically held that a grant of probate cannot be made by the consent of the parties. It is the duty of the Court to satisfy itself whether the Will proposed was really and truly the Will of a capable testator or not. It may be profitable to refer to the following passage from paragraph 28 of the report which reads as follows:- "28.......A Court of Probate is said to be a Court of Conscience which is not to be influenced by private arrangements of the parties. Either it grants probate to a Will or it rejects such grant. For such a court, it is said, there is no middle path for a happy compromise. The rule of law is stated to be that there can be no probate by consent. Either it is grant or refusal. The Court has to be satisfied in each case whether the Will proposed is truly the Will of a capable testator or not. It is not concerned with any other arrangement. It has been said over and over again that there is no such thing as conditional probate or an amended probate. In is either all or nothing. That seems to be sensible enough law."
(3.) What would be the duty of the probate court in a situation where the parties have entered into a settlement to be considered in a probate proceeding is explained in paragraph 29, 30 and 31 which read as follows:- "29. The court, however, has a way of softening the austerity and rigour of this procedure. The practice o the court has discovered one such way in this regard. In England, such terms of Settlement are allowed to be filed and are made what is said to be a "rule of the court". See In the Estate of Cook, (1960) 1 All ER 689 where the court pronounced for the Will in solemn form and the terms of compromise were made a Rule of Court. The testamentary rules and probate practice in this court do seem to indicate that there is such a procedure available here for making such terms of settlement a rule of the court. But nevertheless, it has formulated a practice, consistently followed, almost without exception, of making the terms if a rule of the court but a record on the file of the court. That does mean that these terms become a part of the grant or refusal of the probate or executable as such. But it only means this that the records of the court will show that the interested parties had arranged to dispose of the property according to such agreement when it reaches their hands, but then such agreement does thereby become executable as a decree of court but can only be enforced by independent proceeding or suit in the ordinary way as an agreement. The procedure so adopted may be justified rationally by suggesting that this gives a certain amount of authenticity and solemnity to the agreement, In practical effect, the procedure helps nobody because the filing of the agreement does help in the execution nor does it conclude any possible question on the validity or enforceability of such agreement. The court only allows to be filed with its records a Written declaration by the parties themselves that the parties have between themselves come to a certain arrangement and nothing more. But this does mean that the court makes a declaratory decree in terms of the agreement filed. It does nothing of the kind. The court expresses no opinion whatever on such agreement. The court's task is over by its judgment in refusing or as in this case by granting the probate independently of whatever agreement the parties may have arrived at. The court has in this appeal independently come to this judgment that this is the Will of which probate should be granted. What the parties should do thereafter and how they would dispose of the property when it reaches their hands under the probate is a matter for them and for the testamentary court. 30. It is necessary to refer to certain Indian and English cases in order to explain and clear this practice. In Boughey v. Minor, 1893 P. 181 a testator by his Will bequeathed the residue of his real and personal estate for the establishment of an agricultural college. The Will was disputed by one of his next of kin who was also heiress-at-law; but a compromise was agreed to, by which the Will was to be proved in solemn form without opposition. The Attorney General, as a person interested in the disposal of the residue, was cited, and appeared at the hearing to give his sanction to the compromise. Curiously enough in this case also the Will was opposed on the ground of testamentary incapacity, but after negotiations an arrangement was made for settlement. The court sanctioned such settlement and a probate was granted of the Will accordingly. This, however, was a case of first instance before any court had pronounced either for or against the Will. In Saroda Kanta Dass v. Gobind Mohan Das, 12 Cal LJ 91 this procedure came up for comment. A Division Bench of this court appears to come to the conclusion there that when probate has actually been revoked by a court of first instance on the ground that the will propounded is a forgery, the parties are entitled to bring the matter on appeal and then by compromise obtain a reversal of the decision and a revival of the probate without any adjudication on the merits. It was held there that such compromise could be regarded as lawful within the meaning of Order 23, Rule 3 of the Code of Civil Procedure. The ratio of that decision proceeded on the basis that the action o a Probate Court was in the nature of a proceeding in rem and so long as the order remained in force, it was conclusive on the due execution and the validity of the Will, only upon all the parties who might be before the Court, but also upon all other persons Whatever, in all proceedings arising out of the Will or claims under or in connection therewith. The argument that the effect of the appeal was to reopen the whole matter in controversy as to whether the application for probate should be granted or refused apparently did find favour with the court. The previous case of Kamal Kumari Devi v. Narendra Nath Mukharji, reported in 9 Cal LJ 19 has inspired apparently the present practice of this court. This was the decision of Woodroffe, J. sitting with Cox, J. Dealing with the argument that there could be no agreement to take out probate in an amended form and that probate could be granted by consent of parties only and that any compromise which excluded evidence of a Will was unlawful, Woodroffe, J. at Page 29 of that Report observed: "It is of course obvious that there can be no such thing as 'amended probate'. Either the Will of the testator is proved or it is not. If proved, what is proved are the provisions of the Will. Further there must be proof of the Wilt before probate is granted. The mere consent of parties without evidence in support of the Will and which satisfies the court of its due execution is insufficient. In the present case no such question arises for admittedly evidence was given before the Probate Court which satisfied in that both the Will and Codicil were duty executed. Owing to an erroneous view of the law the parties expressed their intentions in an irregular form. There could be no 'amended probate' as stated in the ekramamah but when a testamentary instrument is propounded and a ca(sic)eat against the grant is entered, it is common practice that opposition to the grant should be withdrawn upon terms. Upon this being done, the promovent proceeds to prove the Will unless probate has already been granted in common form. In such a case and according to the practice on the Original Side of the Court the caveat is discharged and the grant made. Such an order is alone within the scope of the suit. But if a settlement has been arrived at under which opposition has been withdrawn, it is recited in the decree that the parties have agreed to terms of settlement and it is ordered that such terms be recorded. The terms are then recorded in a schedule annexed to the decree. Such terms when as they ordinarily are beyond the scope of the suit are the subject matter of the decree, and if carried out, must be enforced by separate suit. It is argued that in any case no settlement can be arrived at which has the effect of in any way interfering with the disposition of the testamentary instrument of which probate is sought. But in my opinion this is so. Neither the court nor the parties can make for the testator any Will other than that which he has executed. When however all the parties beneficially interested under that Will consent they can agree to dispose of the estate in a particular manner when it reaches their hands. In that case they are really dealing with their own property. Such an agreement may ho given effect to either by a redistribution by and amongst themselves after the executor shall have made over the property in terms of the Will or without waiting for such a distribution in conformity with the Will by a direction given by all beneficially interested to the executor to give direct effect to the agreement which the parties have arrived at as to the disposition of the properties given to them by the Will.";