JUDGMENT (S. Jagadeesan, J)
The appellant has filed this appeal against the order of the learned Single Judge in Application No. 6041 of 1992 in T.O.S No. 5 of 1981 dated 15.6.1998
2. The subject matter arises out of the Will executed by one Bhoopathy. The appellant and the second respondent are his daughters and the first respondent is his son. He died on 7.4.1975 On the whole he left three wills dated 28.4.1966, 7.8.1974 and 18.3.1975 Under the Will dated 28.4.66 the testator has given the entire property in Door No. 4, Mylai Ranganathan Street, T. Nagar, Madras to his wife Kuppammal. Subsequently in the second Will dated 7.8.74 he bequeathed half of the said property to his son Durairaj, the first respondent herein and the other half to his grand daughter Baby @ Sheela, through his daughter Kuppammal, the second respondent herein. In the said Will he has also provided a Clause for the payment of Rs. 50.every month to the appellant herein from out of the rents received from the property. Again as a last Will, he left the same dated 18.3.75 whereunder he bequeathed half share of the said property to the second respondent herein and the other half share to her daughter Baby @ Sheela.
3. The first respondent herein filed O.P 136 of 1976 for the grant of Letters of Administration on the basis of the second Will dated 7.8.74 As the same was contested by the second respondent herein, it was converted into T.O.S No. 5 of 1981. The second respondent also filed O.P 341/81 for the grant of letters of administration under the Will dated 18.3.75 and that was also converted as T.O.S No. 3 of 1983.
4. During the pendency of those T.O.S the appellant herein filed an application No. 1912/84 in T.O.S No. 5/81 and Application No. 1911/84 in T.O.S 3/83 for impleading her as a party to the proceeding. Both the applications were allowed. Before she was impleaded as party/respondent, the witnesses were examined in the T.O.S After impleading the appellant, she did not take any steps to cross-examine the witnesses by recalling them and she never participated in the further proceedings at the argument stage.
5. One Padmasini filed Application Nos. 2987 and 2988 of 1993 in T.O.S No. 5 of 1981, giving consent for the grant of Letters of Administration in favour of the first respondent herein. Subsequently the matter was settled and a compromise was entered into between the respondents herein and consequently a compromise decree was passed in T.O.S 5/81 or in other words Letters of Administration was granted in favour of the first respondent herein in terms of compromise in T.O.S No. 5/81 on 31.7.1991 Pursuant to the said compromise, a cheque was sent to the appellant herein for a sum of Rs. 30,000/- towards the arrears of the monthly rent due to her on the terms of the Will dated 7.8.1974 The appellant sent a notice to the second respondent stating that she is taking steps for setting aside the compromise decree in T.O.S 5/81.
6. Application No. 6041/92 was filed for setting aside the compromise decree passed in T.O.S 5/81. The said application was dismissed by the learned single Judge. Aggrieved by the same, the present appeal has been filed.
7. It is the contention of the learned counsel for the appellant that the appellant being a party to the proceeding in both the T.O.S the respondents herein are not entitled to enter into a compromise without informing the appellant. He further contended that the appellant was not served with any compromise memo much less the application for recording the compromise. Hence the compromise entered into between the respondents is behind the back of the appellant and as such the T.O.S could not have been disposed of without any reference to the claim of the appellant. Even in the compromise memo, the respondents have omitted to mention the name of the appellant in the cause title and perhaps misled the court to record the compromise, as if there is no other party involved in the proceeding. It is his contention that in the testamentary proceeding without going into the legality of the Will, compromise cannot be recorded. In the result, the decree passed pursuant to the compromise entered into between the respondents is liable to be set aside. The learned single Judge has taken into consideration only the conduct of the appellant in not participating in the further proceedings of T.O.S which has no relevance. The learned single Judge totally omitted to consider the legal aspect of the jurisdiction of the court to record the compromise decree in the testamentary suit and hence the order of the learned single Judge is liable to be set aside.
8. The learned counsel for the first respondent contended that the compromise entered into between the respondents is confirming the terms of the Will dated 7.8.74 in order to respect the wishes of the testator. Though the appellant had been provided with the monthly payment of Rs. 50/- under the Will dated 7.8.74, the testator, in his latter will dated 18.3.75 has bequeathed the property to the second respondent and her daughter in equal shares omitting the appellant as well as the first respondent. Though the appellant got impleaded in the T.O.S by the time she was impleaded, the oral evidence was over. The appellant did not take any steps to recall the witnesses to dispute the genuineness of the Will dated 7.8.74 When the appellant did not dispute the genuineness of the Will dated 7.8.74 and the compromise having been entered into between the respondents only in terms of the Will dated 7.8.74, the appellant cannot be said to be an aggrieved person and as such the order of the learned single Judge has to be confirmed.
9. The learned counsel for the second respondent virtually adopted the argument of the learned Counsel for the first respondent in all respects.
10. In this appeal, the only question that arises for consideration is whether the compromise decree entered between the respondents in T.O.S 5/81 is liable to be set aside?
11. There is no dispute that the appellant was impleaded in the T.O.S No. 5/81 as well as T.O.S 3/81 filed by the respondents herein respectively. There is also no dispute that before ever the appellant was impleaded, the oral evidence in T.O.S was completed. The appellant did not take any steps to recall the witnesses; much less the attestor, to dispute the genuineness of the Will executed by the testator. Till the matter reached the argument stage, the appellant did not take any steps. Hence the respondents wanted to settle the matter, giving out whatever is provided to the appellant in the Will dated 7.8.74
12. The compromise entered into between the respondents is being challenged mainly on two grounds:
(i) The appellant was not aware as she was not served with the copy, though she being a party to the proceeding; and
(ii) in the testamentary proceeding, the court has no jurisdiction to record compromise, without giving a finding with regard to the genuineness of the Will.
13. So far as the first question is concerned, it is an admitted fact that the appellant's name was not shown in the cause title in T.O.S 5/81, though the compromise was entered into. The respondents had mutually signed the same. In the cause title, as rightly pointed out by the learned counsel for the appellant, the name of the appellant was not shown as a party to the proceeding. But the question is whether these defects can form the basis for setting aside the compromise already entered and recorded by the Court.
14. In our view, the learned single Judge may be right in dismissing the application for the simple reason that the appellant had not made out any case for her grievance. Though she got impleaded in both the T.O.S, she never showed any interest to examine the witnesses. That means, the appellant is not disputing the execution of the Will and the attestation of the same. The appellant was satisfied by merely getting herself impleaded. The order of the learned single Judge in paragraph 8 specifically reads that the appellant did not file any written statement in T.O.S No. 5/81. From the records we find that the appellant had filed the written statement in both the T.O.S when the appellant got herself impleaded she ought to have taken some steps to dispute the genuineness of the Will. As the appellant did not dispute either the execution of the Will by the testator or the genuineness of the same under any other ground, the respondents might have thought that the appellant did not have any grievance for the terms of the Will dated 7.8.74 and accordingly they entered into the compromise, providing the appellant in terms of the said Will.
15. When the matter was pending for a decade, the conduct of the appellant in not taking any steps to challenge the genuineness of the Will, naturally can be taken into consideration to decide the issue. But, however, if the court holds that the court cannot record compromise, then whether this reasoning of the learned single Judge can be upheld.
16. However, the appellant being not a party to the compromise entered into between the respondents, the compromise recorded by this Court will not bind the appellant. Hence it is always open to her to enforce her claim de hors the compromise entered into between the respondents herein.
17. So far as the next ground is concerned, the learned counsel for the appellant placed his reliance on the judgment of the Allahabad High Court in the case of Bishunath v. Sarju (AIR 1931 Allahabad 745) wherein it has been held that the form of probate which is prescribed in Schedule 6 attached to the Succession Act, 1925 does not admit of the incorporation of private terms like the division of the estate of the testator and the putting of each party into separate possession of it.
18. In fact it is a case where the parties have settled their dispute and entered into the compromise and recorded the same. Thereafter filed an application to the court to record the compromise. The same was rejected. Against the same, the appeal was filed. The Court held that in the probate proceedings, the issue before the court is the question of the proof of the valid execution of the Will and all other matters are outside that enquiry. The court has to be satisfied as to this issue before it grants probate and it is solely immaterial whether the parties desired to compromise their dispute or not. Only on this ground, the appeal was also dismissed.
19. The learned counsel for the appellant also placed reliance on the judgment of the Calcutta High Court in the case of Sisir Kumar v. Manorama (AIR 1972 Calcutta 283) wherein the learned single Judge has held that a court of probate is a court of conscience which is not to be influenced by private arrangement of the parties. The learned Judge also held that either the probate should be granted to the Will or should be rejected. The rule of law is that there can be no probate by consent, either to grant or to refuse. It is for the Court to satisfy with regard to the execution of the Will. The Compromise entered into between the parties in such proceeding will amount to an agreement between the parties for the disposal of the property left by the testator and the same does not mean that they become part of grant or refusal of the probate or executable as such. It will be an arrangement between the interested parties to dispose of the property. But then such agreement does not 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.
20. So far as this judgment is concerned, the learned single Judge of the Calcutta High Court did not hold that the compromise entered into between the parties can be enforced. The enforcement will come in when there is dispute between the parties regarding the disposal of the property as agreed upon. When that is not there, the executability of that arrangement does not arise. Hence the principle laid down therein will not be of any help to the counsel for the appellant.
21. In the Allahabad case, the Division Bench has held that the compromise cannot be recorded in a testamentary proceeding, since the genuineness of the Will has to be proved before ever the probate can be granted in favour of the plaintiff in the following terms:
“It also appears that it will be contrary to public policy to introduce into the probate that is granted to the executor terms of a private compromise that might have been arrived at between him and any objector. So long as it is not revoked the probate is conclusive against the whole world and private arrangements between the parties in a proceeding would be quite out of place in it.”
From the principles laid down by the Allahabad High Court, it is clear that once the probate is granted, the probate is valid against every one until the same is revoked, even if it is on the basis of compromise.
22. We entirely agree with the view taken by the learned Judges of the Allahabad High Court. The compromise can be acted upon if the same was entered into by all the legal heirs of the testator. When all the legal heirs of the testator joined together and entered into the compromise, the same is binding on them by virtue of their agreement or arrangement. When a few had joined together and compromised the dispute, definitely the same will not be binding on others who are not parties to the compromise. In this case, the appellant being not a party to the compromise, definitely the terms of the compromise entered into between the respondents will not bind her.
23. But, however, a perusal of the order in the T.O.S reveals that the first respondent had been granted the Letters of Administration. As per the principles laid down by the Allahabad High Court referred to above, such letters of administration cannot be granted by way of consent.
24. Hence in our view, the Letters of Administration granted in favour of the first respondent by the learned single Judge pursuant to the memo of compromise entered into between the respondents herein cannot be sustained. Accordingly the same is set aside and the O.S.A is allowed. There will be no order as to costs.
25. The T.O.S 5/81 is sent back to the learned single Judge for the disposal of the same on merits. The appellant is directed to return the amount of Rs. 30,000/- and if any other amount received by her from the first respondent, to him within two weeks from today. On such payment, the T.O.S has to be taken for disposal by the learned single Judge. The parties are at liberty to adduce any additional evidence, if necessary, at the discretion of the learned single Judge.
VCJ/VCS