SARADA KANTA DAS Vs. GOBINDA MOHAN DAS AND MAITUNNISSA BIBI

JUDGEMENT

(1.) The circumstances, under which the two applications under consideration have been made to this Court, may, be briefly narrated. One Arman Khan died on the 3 August 1894, and left, as his heirs, his mother, two widows, four sons and four daughters. On the 12th September 1894, Momtaz Ali, the eldest son, applied for probate of a Will alleged to have been executed by his father shortly before his death on the 13 June 1894. Special citation was issued upon the mother and the daughters but no steps were taken to have any guardian appointed on behalf of the infant sons, and no notices were issued to them. The Will was proved in common form as the mother and the widows did not contest the proceedings, and order for grant of probate was made on the 3 November 1894. The probate was taken out on the 8 December 1894. On the 26 January 1896, Momtaz Ali, as executor, appears to have borrowed a large sum of money from Gobinda Mohan Eai Ohowdhury and others and hypothecated portions of the estate in his charge. The mortgagees subsequently sued to enforce their security, obtained a decree on the 5 September 1898, and on the 16 May 1899, purchased the mortgaged properties, of which they took delivery of possession in due course of law. Meanwhile, Peary Mohan Guha and others, who held decrees against Arman Khan, took out execution against his heirs, and purchased some of the properties on the 22nd April and 23 May 1898. Shortly after these execution sale.4, in 1899, one of the sons of the alleged testator applied for revocation of the probate, but his application was dismissed for default. In the year following, one of the daughters made a similar application which was dismissed, because her witnesses were not present. Two other applications were made in 1904 by two of the sons, but the Court declined to entertain them on the ground that the persons, under whose guardianship they lived, had been cited to appear in 1894, and had not contested the grant of probate. In 1907, Mayahunnissa Bibee, one of the daughters, made an application for revocation of the probate, and thus commenced the proceedings which are now before us. Objection was taken in the Court below that it was incompetent to her to maintain the application; but the objection was overruled on the ground that the applicant was an infant in 1894, that she was not specially cited, and that ho guardian ad litem was appointed for her in the probate proceedings. The learned Judge in the Court below then held that the grant must be re-called, as the proceedings to obtain it were defective in substance, He consequently re-called the probate, and called -upon the executor to prove the Will in solemn form. It is necessary to mention at this stage that the mortgagees decree-holders, the Rai Chaudhurys, who had purchased a portion of the estate, intervened in the Court below on the ground that, as they had acquired a substantial interest in the properties comprised in the probate they ought to be heard before it was revoked. In fact, they were the principal contestants in the Court below. The executor went into evidence, and on the 20 December 1907, the Subordinate Judge came to the conclusion that the Will was a forgery, with the result that he revoked and annulled the probate already re-called. Against this decree, the interveners preferred an appeal to this Court on the 14 February 1908, and the respondents to the appeal were the executor and the petitioner at whose instance the probate had been revoked. On the 10 May 1910, an application was presented to this Court on behalf of the intervenors appellants and the petitioner respondent, in which it was prayed that as the matter had been settled amicably, the decree of the Subordinate Judge might be discharged, and the probate originally granted, restored. On the same date, another application was presented to this Court on behalf of one Sarada Kant Das, who claimed to have acquired by purchase the interest of the Guhas in the estate under their purchase at the execution sale held on the 22 April, 1898. In this application, Sarada Kanta Das prayed that he might be made a respondent in the appeal, and might be allowed an opportunity, at the hearing of the appeal, to support the decree of the Court below. His allegation was that the intervenors had won over the daughter at whose instance the probate had been revoked, and that, if by their consent, the decree of the Court below was discharged and the grant was revived, his own position might be considerably embarrassed. His case, in substance, was that ho had not intervened in the Court below as the proceedings for revocation of the grant had been bona fide conducted, but that, as there was now a combination between the daughter and the mortgagees purchasers, with a view to defeat the ends of justice, he ought to be allowed to intervene at this stage and he should not be driven to a separate proceeding for revocation of the probate. The two applications, therefore, which we are invited to consider, are, first one jointly by the petitioner in the Court below and the intervenors for a consent decree, and secondly, another by the purchasers of the interest of the execution purchasers for leave to intervene in the appeal with a view to defeat the attempted settlement. The two applications have been heard together, and after a careful consideration of the elaborate arguments which have been addressed to us on both sides, we have arrived at the conclusion that the application for a consent decree ought to be refused, and the application of Sarada Kanta for leave to appear at the hearing of the appeal in support of the decree of the Court below granted.

(2.) In so far as the application for a consent decree is concerned, the argument in support of it has been of a two-fold character. On behalf of the mortgagees purchasers, the appellants, it has been contended that the application falls under Order XXIII, Rule 3, of the Code of 1908; that the proceeding for revocation of probate is a suit within the meaning of that rule and that it is competent to the parties to adjust the matter in difference so as to terminate the dispute between them. In support of this proposition, reliance has been placed upon the cases of Hargreaves V/s. Wood (1862) 2 Sw. & Tr. 602 : 32 L.J.P. 8 : 7 L.T. 338 : 11 W.R. 31; Roadnight V/s. Carter (1863) 3 Sw. Tr. 421 and Wytcherley V/s. Andrews (1871) I.R. 2 P. & D. 327 : 40 L.J.P. 57 : 25 L.T. 134 : 19 W.R. 1015. On behalf of the daughter of the alleged testator, the petitioner-respondent, in the appeal, it has been contended that the proceeding for revocation of probate is a suit within the meaning of Order XXIII, Rule 1, of the Code of 1908; that although the suit has been decided in the Court of first instance, the effect of the appeal preferred to this Court is to re-open the matter in controversy; that it is competent to her to withdraw the suit at any moment even during the pendency of the appeal and that the effect of such withdrawal will be to revive the probate which has been revoked by the Court below in these proceedings. This argument, in both its branches, is, in our opinion, unsound and ought not to prevail. In so far as the contention of the appellants is concerned, it is clear that Order 23, Rule 3, is of no assistance to them, even if we assume that a proceeding for revocation of a probate is a suit within the meaning1 of that Rule, which it is not, as pointed out by this Court in the case of Pratap Chandra Shah V/s. Kali Bhanjan Shah 4 C.W.N. 600, where it was ruled that Section 83 of the Probate and Administration Act of 1881, doest not apply to an application for revocation of probate, which is governed by Section 55. Section 55 lays down that the proceeding's in relation to the granting of probate and Letters of Administration shall, except as thereinafter otherwise provided, be regulated, so1 far as the circumstances of the case will admit, by the Civil P. C.; in other words, tinder Section 141 of the Civil Procedure Code of 1908, in proceedings for revocation of a probate, the procedure in regard to suits shall be followed only in so far as it may be made applicable. The question, therefore, arises, to what extent the provisions of Order XXIII, Rule 3, may be applied to proceedings for revocation of probate. Under that Rule, the Court cannot refuse to record and give effect to a compromise except where it is unlawful. Now it has been ruled in the case of Monmohini v. Banga 31 C. 357, that, unless a Will is proved in some form, no grant of probate can be made merely on consent of parties. To put the matter in another way, an agreement or compromise as regards the genuineness and due execution of a Will, if its effect is to exclude evidence in proof of the Will, is not lawful within the meaning of this Rule, and no probate can be granted merely because the caveator consents to the grant; such an agreement is against public policy, for its object is to exclude enquiry into the genuineness of the Will which it is the duty of the Probate Court to make. In other words, as the grant of probate operates as a judgment in rem, the Court must be satisfied that the Will has been duly attested and executed before the grant is made. Ameer Chand V/s. Mohanund Bibi 6 C.L.J. 453; Ravji Ranchod Naik V/s. Vishnu Ranchod Naik 9 B. 341 and Ghellabhai Atmaram V/s. Nandu Bai 21 B. 335. It has been contended, however, on behalf of the appellants that although the settlement of a probate proceeding may not be lawful, the objection does not apply to the compromise of a proceeding for revocation of a probate, and in support of this view, reference has been made to the cases of Hargreaves V/s. Wood (1862) 2 Sw. & Tr. 602 : 32 L.J.P. 8 : 7 L.T. 338 : 11 W.R. 31; Roadnight V/s. Garter (1863) 3 Sw. Tr. 421 and Wytcherley V/s. Andrews (1871) I.R. 2 P. & D. 327 : 40 L.J.P. 57 : 25 L.T. 134 : 19 W.R. 1015. These cases, however, are clearly distinguishable, and do not lend any support to the argument of the appellants. In them, after a Will had been proved in common form, the executor was called upon to prove it in solemn form, but before the proceedings terminated, the caveator withdrew her objection upon compromise. The learned Judges, before whom the compromise was put forward, directed the terms of compromise to be filed, and the contentious proceedings to be discontinued. In the case before us, however, the proceedings have been carried on much further; the executor, who was called upon to prove the Will in solemn form, has made the attempt; the evidence, which he has adduced, has been scrutinised on behalf of the caveator, and the learned Judge has pronounced the Will to be a forgery. Under these circumstances, if the parties were now allowed to compromise the matter, the result, in substance, would be the same as the grant of probate in the first instance by consent of parties. The learned Vakil for the appellants has, however, suggested that the effect of the appeal preferred to this Court is to re-opan the matter in controversy, and to restore the parties precisely to the position which they occupied in the Court of first instance before the investigation was made. In our opinion, this contention is manifestly unsound. It may be conceded that, when an appeal has been preferred, the matter ceases to be res judicata and becomes res sub judice; in other words, till the final order has been made by the Court of appeal, either in affirmance or reversal of the decision of the Original Court, there1 is no decree which operates as a judgment in rem under Section 41 of the Indian Evidence Act. It does not follow, however, that it is open to the parties to compromise the matter in controversy, and to make it obligatory upon this Court to restore the probate by their consent although such probate has been revoked by a competent Court on the ground that the Will was a forgery. In our opinion, there is no room for controversy 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 not entitled to bring the matter on appeal to this Court and then by compromise to obtain a reversal of the decision and a revival of the probate without any adjudication on the merits. Such a compromise cannot be regarded as lawful within the meaning of Order XXITI, Rule 3, of the Code of 1908. The action of a Probate Court of competent jurisdiction, when it admits a Will to probate or rejects it as not duly attested and executed, is in the nature of a proceeding in rem and so long as the order remains in force, it is conclusive as to the due execution and the validity of the Will, not only upon all the parties who may be before the Court, but also upon all other persons whatever, in ail proceedings arising out of the Will or claims under or connected therewith. All judgments of this character should be founded upon an investigation of the facts by the Court itself and ought not to be based upon consent of parties. There is, in our opinion, no difference in principle whether the compromise is attempted for the grant of the probate in the original Court during the pendency of the proceedings there or whether it is attempted in a Court of appeal during the pendency of an appeal against a judgment by which the Will has been pronounced to be a forgery. The essence of the matter is that the question in controversy affects not merely the parties before the Court, but also others who are bound by the decree though not represented before the Court. Reference may, in this connection, be made to the decision of the House of Lords in the case of Jenkins V/s. Robertson (1867) L.R. 2 Sc. & Div. 117. There a suit was brought, called an action of declarator, to establish a public right of way. The result of the action would bind not merely the parties before the Court, but also members of the public who might have an interest in the alleged way. The suit was compromised between the parties, with the result that another member of the public commenced an action for the same purpose. The question was raised, whether the previous decision operated as a bar. It was ruled by the House of Lords that such a transaction could not be treated really as res judicata. The Court had not exercised its judicial mind, and had not come to the conclusion that one side was right and the other side was wrong. Whatever, therefore, th e effect of the decision might be as between the immediate parties to the suit, it could not, in any manner, affect the rights of parties who were strangers to the proceedings; in other words, by reason of the compromise, the Court had been prevented from coming to a decision of a contested matter after argument and considerations, and consequently, the decree had not acquired the character of a judgment in rem. It is obvious, therefore, that, if we were to uphold, in the case before us, the contention of the appellants, the restoration of the probate by consent of parties would not impress upon the adjudication the incidents of a judgment in rem; in other words, although the appellant might, as the result of the compromise, assert successfully against the respondent that the mortgage in their favour was granted by an executor, they could not rely upon the Will in the event of a possible contest with any other person. It is manifest that a Court ought not to lend itself to the grant of a probate from which a result of this description might possibly follow. We must consequently overrule the contention of the learned Vakil for the appellants that the compromise is lawful within the meaning of Order XXIII, Rule 3, and that it is obligatory upon the Court to give effect to its terms.

(3.) We have next to examine the contention advanced on behalf of the respondent as to the precise effect of Order XXIII, Rule 1, Clause (1). That Clause provides that, at any time after the institution of a suit, the plaintiff may, as against all or any of the defendants, withdraw his suit, or abandon part of his claim. The contention on behalf of the petitioner-respondent, in substance, is that the proceeding for revocation is a suit within the meaning of this rule; that it is competent to her under this Rule, read with Section 107, Sub-section (2), to withdraw the proceeding even at the appellate stage, and that, therefore, it is open to her, by recourse to this method, to obtain a revival of probate which has been re-called on the ground that the Will was a forgery. In our opinion, this contention is entirely unsustainable1. In the first place, as we have already pointed out, a proceeding for a revocation of probate is not a suit within the meaning of Order XXIII, Rule 1. In the second place, even if it were treated as a suit, the effect of Section 107, Sub-section (2), would ordinarily be to entitle the appellants to withdraw their appeal here, just as the petitioner might have withdrawn his suit in the Court of first instance. It is not necessary, however, in our opinion, to examine this argument minutely, because it is obvious that, under Section 141, the Code is to be applied to proceedings for revocation of probate only in so far as the procedure can be made applicable. We feel no hesitation in holding that after a petitioner has instituted proceedings in the Court of first instance for revocation of a probate on the ground that the Will was a forgery, and such proceedings have terminated in his favour, it is not competent to him, in an appeal preferred by the executor or by any other party who has appeared in support of the Will, to withdraw the entire proceedings, and thus compel the Court to revive the grant of probate of a Will which has been pronounced by a Court of competent jurisdiction to be a forgery. When regard is had to the far-reaching effect of a grant of a probate, it is impossible to hold that a party, who has successfully proved that a Will is a forgery, should be at liberty to withdraw the proceedings at his option and compel the Court to recognise as genuine the instrument, while he deprives the Court of opportunity to investigate the matter on the merits. If the contrary view were maintained, the result would be a direct encouragement of fraud, and in every instance, when a Will has been proved to be a forgery, and a probate has been revoked, possibly followed by Criminal proceedings, peace may be purchased by the persons who have committed the fraud if they can make it worth the while of caveator to drop the proceedings which he had commenced and carried on to a successful termination in the original Court. We are not prepared to apply Order XXIII, Rule 1, Sub-rule (1) to cases of this character. That Rule, it maybe pointed out, was introduced for the first time in the Code of 1908, and we are unable to hold that the Legislature could ever have intended to apply it to cases of the description now before us. In any event, the language of Section 141 does, in our opinion, enable the Court to frustrate the object which the parties to the compromise before us have in view. We must consequently. hold that the petition of cam-promise, which has been jointly put forward by the intervenors-appellants and the petitioner-respondent and supported by them on different grounds, ought not to be granted. The application, therefore, is refused.