Citation Codes

Equivalent Citations

citation codes

Case Number

Appeal No. 147 of 1946-1947, against decree of Principal D.J, Bangalore, in O.S No. 7 of 1945-1946

Attorney(S)

For the Appellant: S.V. Subramaniam, Venkatanarasimhiya, Advocates.

Judges

Balakrishnaiya
Mallappa, JJ.

Acts

S. 263, Succession Act (corresponding: to S. 50 Probate Act)
will.7. Section 50, Probate Act,
S. 264(1), Succession Act
Indian Succession Act
S. 41, Evidence Act,
S. 5. Section 25

See more information ...

Smart Summary

Structured Summary of the Opinion — Balakrishnaiya, J.

Factual and Procedural Background

The plaintiffs, as executors of the will of V. Ramalingam, applied to the District Judge, Civil Station, Bangalore, for Letters of Administration with an authenticated copy of the will annexed in respect of scheduled assets. The respondents are the deceased's wife and children.

Chronology as set out in the opinion:

Plaintiffs filed O.S. No. 4 of 1943 in the District Judge, Civil Station, Bangalore; that suit was decreed granting probate for properties within that Court's jurisdiction.
The respondents (wife and children) filed R.A. Nos. 1 and 2 of 1944 before the Court of the British Resident in Mysore at Bangalore; those appeals were dismissed on 5 July 1944.
The respondents then appealed to the Privy Council; that appeal remained pending at the time of the District Judge's decision.
The executors also filed O.P. No. 45 of 1944 in the High Court of Judicature at Madras seeking probate of the will and codicil; the Madras High Court granted probate on the basis of the will proved in the District Judge's Court for properties within its jurisdiction.
Thus the executors had obtained probate in two Courts. The District Judge held the earlier probates to operate as judgments in rem and granted letters of administration with the authenticated will attached, but made the grant subject to the result of the appeal pending before the Privy Council. The plaintiffs appealed that conditional grant; the respondents filed cross-objections.
Subsequently the Privy Council disposed of the appeal on 12 December 1949, stating it had no jurisdiction to entertain the appeal; the party which had pursued that appeal filed a memo on 14 December 1949 that they did not press the appeal and asked that it be dismissed.

Legal Issues Presented

Whether, in the circumstances, the judgments of the Court of the Hon'ble the Resident in Mysore have become final so as to operate as judgments in rem.
Whether the plaintiffs were entitled to an unconditional grant of letters of administration with an authenticated copy of the will annexed (i.e., whether the conditional grant imposed by the District Judge was unsound).
Whether objections that the will was revoked (a new plea raised by respondents) could be entertained in this suit for letters of administration, or whether revocation must be pursued by application to the Probate Court which granted probate.
Whether a judgment of a foreign Court (e.g., the District Court, Civil Station, Bangalore, or a probate granted outside Mysore) can be treated as a final judgment under S. 41, Evidence Act, and thus be binding on Mysore Courts.

Arguments of the Parties

Appellants' (Plaintiffs') Arguments

The plaintiffs contended they were entitled to an unconditional grant of letters of administration with an authenticated copy of the will attached; the condition imposed by the District Judge was unsound and erroneous.
They explained that a reference to S. 25 in their application was a mistake and that they had in truth applied under S. 5, Probate Act, for letters of administration with a copy of the will annexed (i.e., based on a will proved in a Court of competent jurisdiction beyond Mysore).
They maintained that the probate judgments obtained constituted judgments in rem binding on the parties and therefore entitled them to the grant without contest.

Respondents' Arguments

The respondents sought to press cross-objections despite the Privy Council's disposition and argued that because the Judicial Committee said it had no jurisdiction to entertain the appeal, the matter might not have been finally disposed and other remedies might remain open to them.
They urged that the plaintiffs had undertaken in the lower Court to prove the will and codicil in the common form for a grant of letters of administration, not specifically under S. 5 (letters with authenticated copy attached), and therefore the plaintiffs' application under S. 5 was not properly made.
The respondents raised a new objection in the written statement: that the last will was revoked just before the testator's death. They had entered a caveat attacking the validity of the will and prayed that proceedings be stayed until the Privy Council's disposal. They argued that the trial Court had not recorded findings on this revocation plea.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
5 Mys. L.J. 107	Under S. 41, Evidence Act, the final judgment of a Probate Court granting probate is a judgment in rem and is conclusive as to the genuineness and validity of the will.	Relied upon to hold that the probate judgments were conclusive and binding until set aside, supporting the conclusion that the probate operated as a judgment in rem.
49 Mys. H.C.R. 188	Where a will has been proved in a Court of competent jurisdiction beyond Mysore (e.g., England), probate there is deemed a judgment in rem and binding on Mysore Courts.	Applied to reject the suggestion that a "foreign Court" probate could not bind Mysore Courts; the Court held such foreign probates are covered by S. 41 if the Court was competent.
Hemangini Debi v. Sarat Sundari Debya, 34 C.L.J. 457 (A.I.R. 1921 Cal. 292)	Principle that where a judgment operates as a judgment in rem, it is not subject to collateral attack and is conclusive on parties and on all Courts while it remains in force.	Quoted and relied upon to support the rule that probate judgments cannot be collaterally attacked in other proceedings.
Komollochun Dutt v. Nilrutten Mundle, 4 Cal. 360 (4 C.L.R. 175)	The grant of probate is a decree of a Court which no other Court can set aside except for fraud or want of jurisdiction; the proper course to challenge a wrongful probate is to apply to the Court which granted it to revoke.	Applied to conclude that revocation or challenge to probate must be pursued in the probate-granting Court and cannot be dealt with by collateral suit elsewhere.
Mt. Daropti v. Mt. Santi, A.I.R. (16) 1929 Lah. 483 (116 I.C. 452)	Under the corresponding statutory provision (S. 263 Succession Act equivalent to S. 50 Probate Act), where letters of administration are alleged to be wrongly granted, the proper course is to apply to the Court which granted them to revoke; such grants are conclusive so long as they subsist.	Used to reinforce the proposition that the proper remedy for challenging a grant of probate/letters is by application to the original probate Court and that such grants are conclusive evidence of the executor's/administrator's legal character while subsisting.
Pannalal v. Hansraj Gupta, A.I.R. (27) 1940 Cal. 236 (I.L.R. (1940) 1 Cal. 14)	Section 264(1) (Succession Act) empowers the District Judge to grant or revoke probates; no civil suit lies to revoke a probate—the exclusive remedy is an application under the specified statutory provision.	Relied upon to hold that the exclusive remedy to revoke probate lies in the statute and before the probate Court; civil suits to revoke probate are not appropriate.
O.V. Forbes v. V.G. Peterson, A.I.R. (28) 1941 Cal. 417 (196 I.C. 111)	Where probate of a will has been granted and a subsequently discovered codicil vitally changes the will, grant of probate of will together with codicil is effectively a new grant necessitating revocation of the earlier probate; the codicil must be proved in the place where the will is sought to be proved.	Applied to the procedural point that subsequently discovered codicils or revocations must be dealt with in proper probate proceedings and at the proper forum where the will is to be proved.

Court's Reasoning and Analysis

The Court's central analytical thread was to determine whether the earlier probate judgments had become final and therefore operated as judgments in rem, and consequently whether collateral objections (including a claim of revocation of the will) could be entertained in the present proceedings for letters of administration.

Key steps in the Court's reasoning:

Effect of Privy Council disposition: The Court observed that the Privy Council had rejected the appeal (stating it had no jurisdiction), and the party prosecuting that appeal had effectively abandoned it; therefore the subject-matter of that appeal was no longer sub judice and the judgments of the Resident's Court were rendered final.
Character of probate judgments: The Court invoked S. 41, Evidence Act (as explained in authority cited at 5 Mys. L.J. 107) to hold that the final judgment of a Probate Court granting probate is a judgment in rem and conclusive regarding the genuineness and validity of the will on which the probate is granted. Such judgments bind the parties and all Courts while in force.
Foreign/other-jurisdiction probates: The Court accepted the principle that judgments of Courts outside Mysore are not excluded from S. 41 so long as those Courts were competent to pronounce the judgment; it relied on 49 Mys. H.C.R. 188 to show that probate granted by a competent foreign Court (e.g., English High Court of Justice) could be binding on Mysore Courts.
Procedural characterization of the plaintiffs' application: The Court addressed the contention that the plaintiffs had applied in the common form (not under S. 5) and accepted the plaintiffs' explanation that reference to S. 25 was a mistake and that both parties and the Court had proceeded on the basis that the application sought letters under S. 5 (letters with authenticated copy annexed). Because no party was misled and no prejudice resulted, the Court accepted this characterization.
On the revocation plea: The Court analyzed the respondents' contention that the will had been revoked shortly before death and that this issue had not been decided. The Court held that where a probate judgment subsists, an attempt to raise revocation in collateral proceedings would amount to a collateral attack. The Court cited authorities (Komollochun Dutt, Mt. Daropti, Pannalal, Hemangini Debi) to establish that revocation or challenge to probate must be pursued in the probate-granting Court under the special statutory procedure (e.g., S. 50 Probate Act / S. 263 Succession Act), and that no civil suit lies to revoke a probate.
Applying these precedents and statutory principles, the Court concluded that the Probate Courts have exclusive jurisdiction and that probates can be impugned only in the Court which granted them (except on limited grounds like fraud or want of jurisdiction), and that a probate judgment binds parties and all Courts while it remains operative.

The Court therefore treated the respondents' revocation objection as a collateral attack impermissible in the present proceedings and accepted the view that the probate judgments were final and conclusive.

Holding and Implications

Holding: Appeal dismissed. The Court affirmed the judgment of the learned District Judge and dismissed both the appeal and the cross-objections without costs.

Immediate consequences for the parties:

The trial Court's determination that the probate judgments operated as judgments in rem was upheld.
The respondents' attempt to challenge the will's validity (by alleging revocation) in these proceedings was treated as an impermissible collateral attack; such challenges must be made to the Probate Court which originally granted the probate.

Broader legal implications emphasized by the Court (as applied in this opinion):

Final probate judgments are judgments in rem under S. 41, Evidence Act, and are conclusive as to genuineness and validity of the will while they subsist.
Courts competent to grant probate outside Mysore may produce conclusive judgments under S. 41, provided they were competent to pronounce such judgments.
The legislature has prescribed an exclusive statutory remedy and procedure for revocation of probates (references made to S. 50 Probate Act / corresponding Succession Act provisions), and civil suits are not an appropriate vehicle to revoke a probate previously granted.

The opinion applies and reaffirms established principles concerning probate judgments and the exclusivity of probate jurisdiction; it resolves the immediate dispute by dismissal of the appeal and cross-objections rather than by creating a novel rule of law.

Show full summary ...

Rukn-Ul-Mulk S. Abdul Wajid v. Gajambal Ramalingam

Balakrishnaiya, J.:— This is an appeal by the plaintiffs as executors of a will who applied to the Court of the District Judge, Bangalore, for grant of Letters of Administration with an authenticated copy of the will annexed in respect of the schedule assets belonging to deceased V. Ramalingam. The respondents are the wife and children of the testator. The plaintiffs filed O.S No. 4 of 1943 in the Court of the District Judge, Civil Station, Bangalore. The suit was decreed granting probate in respect of the deceased's properties within the jurisdiction of that Court. Against that judgment, R.A Nos. 1 and 2 of 1944 were filed, by the respondents, the wife and children of the deceased in the Court of the Hon'ble the British Resident in Mysore at Bangalore and the said appeals were dismissed on 5th July 1944. Against the appellate judgment, the respondents preferred an appeal to the Privy Council which was pending on the date of the judgment of the lower Court. The executors also filed O.P No. 45 of 1944 in the High Court of Judicature at Madras against the respondents praying for grant of probate of the said will and codicil and that Court granted probate on the basis of the will proved in the Court of the District Judge, Civil Station, Banglore, in respect of the properties within its jurisdiction. Thus, the executors have obtained probates of the last will dated 10th September 1942 and the codicil in two Courts. The learned District Judge, after consideration of all aspects, held that the judgments of the District Court Civil Station, Bangalore, operated as judgments in rem and the plaintiffs are entitled to the grant of letters of administration, but owing to the fact that the respondents had taken up the judgment of the Hon'ble the Resident's Court in appeal to the Privy Council, the learned District Judge passed a decree granting letters of administration to the plaintiffs with an authenticated copy of the last will and codicil of the said Ramalingam in respect of the plaint schedule properties subject to the result of file appeal by the respondents before the Privy Council against the decree in R.A Nos. 1 and 2 of 1944 on the file of the Hon'ble the Resident in Mysore, Bangalore. Against this judgment, the plaintiffs filed the appeal under consideration and the respondents entered cross, objections.

2. The main ground of appeal in this Court is that the plaintiffs are entitled to an unconditional grant of letters of administration with an authenticated copy of the will attached and the condition attached is unsound and erroneous. This appeal came up for hearing on a number of occasions and on the representation of both the parties that the appeal pending before the Privy Council was likely to be disposed at an early date, the hearing of the appeal was postponed from time to time by consent of parties. It is brought to the notice of this Court that the Privy Council has disposed of the appeal on 12th December 1949 and the appellants there-upon filed a memo on 14th December 1949 submitting that they do not press the above appeal and it they be dismissed. Apparently, they claim that the conditional grant has been automatically resolved by the disposal of the appeal by the Privy Council. There is no objection to comply with the prayer of the appellants. Sri Venkatanarasimhiah, learned Advocate for the respondents, submitted that he would press the cross objections and desired to argue the respondents' case in spits of the decision of the Judicial Committee. A proof copy of the judgment of their Lordships of the Privy Council is also filed which shows that the Judicial Committee have expressed the view that they have no jurisdiction to entertain the appeal. Sri Venkatanarasimhiah urged that the matter in appeal to the Privy Council has not been finally disposed of inasmuch as their Lordships have held that they had no jurisdiction to entertain the appeal implying thereby that the respondents might have remedies elsewhere open to them. That matter is of no concern in the decision of this appeal. The relevant point for consideration is whether the judgments of the Court of the Hon'ble the Resident in Mysore have become final so as to operate as judgments in rem. As the Privy Council have rejected the appeal, the subject matter in appeal is no longer sub judice and the judgments of the Court of the Hon'ble the Resident in Mysore are rendered final. A judgment of a Court of Probate which confers the status of administrators of the estate is on the face of it a judgment in rem which will not only be binding between the parties but upon all other persons and on all Courts regarding the legal character invested. This Court has laid down in 5 Mys. L.J 107 thus:

“Under S. 41, Evidence Act, the final judgment of a Probate Court granting probate in a judgment in rem and is conclusive so far as the question of genuineness and validity of the will on which the probate is granted is concerned.”

3. Hence the judgments are conclusive and binding till they are set aside.

4. It is further contended that the District Court, Civil Station, is a foreign Court and the judgment of a foreign Court is not deemed to be binding on the Mysore Courts. Judgments of the foreign Courts are not excluded from the operation of S. 41, Evidence Act provided they are competent to pronounce a judgment as contemplated by that section. If the Courts are so competent, the judgment is conclusive against the whole world as to the status or title which it establishes. In 49 Mys. H.C.R 188, where a will under the Indian Succession Act has been proved and deposited in a Court of competent jurisdiction beyond Mysore and the executor named in the will applied in Mysore for an ancillary grant, it is laid down the letters of administration which partake the nature of a probate could be granted in Mysore. In that case, the probate of the will was granted by the High Court of Justice in England and it was deemed to be a judgment in rem binding on the Courts.

5. It is next contended by the respondents' Advocate that the plaintiffs had undertaken in the lower Court to prove the will and the codicil in the common form for the grant of letters of administration and not for the grant of letters of administration, with the copy of the authenticated will attached, and the application was not made under S. 5, Probate Act. The appellants explain that S. 25 entered in the application was clearly a mistake for S. 5. Section 25 deals with the grant of a probate of the copy of the draft of a lost will. The application is obviously not based on the copy or draft of a lost will. In their reply, the appellants have unequivocally prayed for the grant of letters of administration on the basis of the will proved and have also produced the judgment of the Hon'ble the British Resident in Mysore confirming the judgment of the District Judge, Civil Station. They further pleaded that the judgment of the Probate Court constituted a judgment in rem binding on the parties and consequently they are entitled in law to the grant of the letters of administration without any contest, on the basis of the will proved in a Court of competent Jurisdiction; S. 5, Probate Act, relates to the grant of letters of administration with the copy of the will annexed based on a will proved in a Court of competent jurisdiction situated beyond the limits of Mysore. In these circumstances the explanation of the appellants that the provision of law cited is due to a mistake appears to be not unfounded. Moreover, the parties and the Court have proceeded on the basis that the suit is for the grant of the letters of administration which would necessarily fall under S. 5. As the parties are not misled and no prejudice is caused to the respondents we are inclined to accept the contention of the appellants that the proceedings were understood and conducted by the parties under S. 5 and not under S. 25, Probate Act.

6. The respondents further argued that they have raised a new point which has the effect of invalidating the last will which is said to have been proved and the trial Court has not recorded any finding thereon. The respondents entered a caveat to the petition of the appellants attacking the validity of the will and praying that the proceedings may be stated till the disposal of the appeal in the Privy Council. After the petition was registered as a suit, the respondents in their written statement raised the new plea that the last will of the deceased testator was revoked just before his death and an issue touching the revocation of the will was also raised by the lower Court; but in the view the lower Court took that the judgments of the Probate Court operated as judgments in rem binding on the parties, the Court appears to have felt it unnecessary to decide that issue. The new objection amounts to the plea that will proved has be come inoperative as it was revoked by a subsequent will.

7. Section 50, Probate Act, provides for the revocation of the probate on the availability of a ‘just cause’. The revocation of the last will, if proved, may amount to a ‘just cause’ entitling them to get the probate also revoked. The question then is the procedure to be followed in the matter of revocation of probates; the appellants contend that the respondents are not entitled to raise such an objection in a suit for the grant of letters of administration on the basis of a will proved. This contention appears to be not entirely devoid of force. The probate jurisdiction is exclusive jurisdiction and the judgment of the Probate Court is rendered a judgment in rem under S. 41. Evidence Act. As observed by Mukherji J. in Hemangini Debi v. Sarat Sundari Debya 34 C.L.J 457 (A.I.R (8) 1921 Cal. 292).

“It is an elementary rule that where a judgment operates as a judgment in rem, it is not subject to any bind of collateral attack; while it remains in force it is conclusive not only on the persona who are parties to the judgment, but upon all persons and on all Courts.”

8. It is undeniable that the judgment has not ceased to be operative; if so, the objection raised is no better than a collateral attack. In Komollochun Dutt v. Nilrutten Mundle, 4 Cal. 360 : (4 C.L.R 175), it is laid down that:

“The grant of probate is the decree of a Court, which no other Court can set aside, except for fraud or want or jurisdiction. Where it has been alleged that probate has been wrongly granted, the proper course to be pursued is to apply to the Court which granted the probate to revoke the same.”

9. Following this Calcutta decision, the Lahore High Court in Mt. Daropti v. Mt. Santi, A.I.R (16) 1929 Lah. 483 : (116 I.C 452) has laid down that under S. 263, Succession Act (corresponding: to S. 50 Probate Act) thus:

“Where it is alleged that letters of administration have been wrongly granted, the proper course is to apply to the Court which granted the letters to revoke the same. The grant of letters of administration so long as it subsists conclusive evidence as regards the proper execution of the will and the legal character conferred on the administrator.”

10. The Calcutta High Court, in a later decision has affirmed the decision in Komollochun Dutt v. ??? Mundle, 4 Cal. 360 : (4 C.L.R 175). In Pannalal v. Hansraj Gupta, A.I.R (27) 1940 Cal. 236. (I.L.R (1940) 1 Cal. 14) where a suit was filed for declaration that the will was a forgery and the grant of probate which was obtained fraudulently should be revoked, Panckridge, J. expressed the view that S. 264(1), Succession Act empowers the District Judge to grant or revoke probates thus:

“No civil suit lies to revoke a probate on any ground for it was the intention of the Legislature that the exclusive remedy in every case should be an application under S. 263, Jurisdiction to revoke probate is limited to the probate Court within the meaning of S. 264(1).”

11. Ordinarily, the last will together with codicil, if any, should be proved atone and the same time. The respondents' contention that the revocation was not known to them at the time of the previous proceedings and it was only subsequently that it was discovered even if true, will not entitle them to raise an objection that the probate is void in subsequent proceedings. It is observed by Amir Ali J. in O.V Forbes v. V.G Peterson, A.I.R (28) 1941 Cal. 417 : (196 I.C 111) that:

“Where the probate of a will is already granted and a codicil subsequently discovered vitally changes the will, the grant of the probate of the will and codicil together is in effect a new grant necessitating revocation of the probate of the will.”

12. His Lordship further states that:

“A subsequently discovered codicil must be proved at a place where the will is sought to be proved.”

13. Applying the principles enunciated in the cases cited, I have no hesitation in holding that the Probate Courts are invested with exclusive jurisdiction and the Legislature has prescribed a special procedure for the revocation of probates and a probate granted can be impugned only in the Court that originally granted the same and that no civil suit lies to challenge the judgment of a Probate Court, nor could any objection be raised in derogation of the will probated in any other proceeding as the judgment of a Probate Court will be binding on the parties, and all Courts. In this view, affirming the judgment of the learned District Judge, the appeal and the cross-objections are dismissed without costs.

V.B.B

Appeal dismissed.

Rukn-Ul-Mulk S. Abdul Wajid v. Gajambal Ramalingam

Structured Summary of the Opinion — Balakrishnaiya, J.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellants' (Plaintiffs') Arguments

Respondents' Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Rukn-Ul-Mulk S. Abdul Wajid v. Gajambal Ramalingam

Comments