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Balwant v. Mainabai .
Structured Summary of the Opinion
Factual and Procedural Background
The appeal under Section 299 of the Succession Act, 1928 challenges an order dated 12-12-1987 of the Additional Judge to the District Judge, Indore at Mhow, which dismissed the appellant's application under Section 276 of the Succession Act for grant of probate on the ground that it was time-barred by Article 137 of the Limitation Act, 1963.
The appellant, Balwant, had applied on 26-4-1980 for probate of a Will allegedly executed by Bonder on 20-9-1973 (Bonder died on 24-12-1973), claiming to be both legatee and executor. The application was opposed by respondent Mainabai (widow of Kanhaiyalal, a pre-deceased son of Bonder) who alleged the Will was forged.
The respondent also relied on a decision in mutation proceedings under the M.P. Land Revenue Code, 1959 (Revenue Code) finding the Will to be forged, and argued that that decision operated as res judicata. The lower Court framed two preliminary issues: (1) whether res judicata barred the probate application; and (2) whether the probate application was barred by limitation. The lower Court held that the Revenue Court's decision did not operate as res judicata but found the application barred by Article 137 of the Limitation Act, leading to dismissal of the probate application.
Legal Issues Presented
- Whether the decision of the Revenue Court (in mutation proceedings) touching the Will operates as res judicata in the probate proceedings.
- Whether the application for grant of probate is barred by Article 137 of the Limitation Act, 1963.
- Whether the miscellaneous appeal to the High Court was competent under the Succession Act and the provisions of the Code of Civil Procedure, 1908.
- Whether the death of attesting witnesses precludes proof of the Will in probate proceedings.
Arguments of the Parties
Appellant's Arguments
- The lower Court erred in holding that an application for grant of probate is governed by Article 137 of the Limitation Act. The Limitation Act does not deal with enforcement of a right under a Will.
- The right to apply for probate accrues from day to day so long as the Will remains un-probated; accordingly, there is no fixed accrual date and no period of limitation applies. Reliance was placed on the decisions in Shobha v. Janki and Ramanand Thakur's case.
- The decision of a Civil or Revenue Court cannot operate as res judicata in probate proceedings because probate proceedings are on a different footing (probate court has exclusive jurisdiction and the judgment is in rem). Reliance was placed on J. Rustomji's case.
- Implicitly, the appellant contended the appeal filed in the High Court by way of miscellaneous appeal was competent under Section 299 of the Succession Act and relevant provisions of the Code.
Respondent's Arguments
- The Will is forged and the mutation (Revenue Court) proceedings have already found it forged; that decision should operate as res judicata.
- In the mutation proceedings the Will was held to be forged; therefore the probate Court should be bound by that finding (reliance on Kanubai's case and decisions dealing with revenue/summary proceedings).
- Even without filing a cross-objection, the respondent argued under Order 41, Rule 22 CPC that she could seek a different finding on the issue of res judicata in the High Court appeal.
- Rule 32 of the Mutation Rules (1965) requires that mutation decisions be made on the basis of title and not mere possession; thus the Revenue Court decision on title should operate as res judicata. Reliance was placed on Chandroji Rao's decision and Prabhakar's case.
- The respondent also contended that because the attesting witnesses were dead, the Will could not be proved — a contention later rejected by the High Court.
- The respondent suggested the miscellaneous appeal might be incompetent and that a regular appeal should have been filed; this contention was rejected by the High Court.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| J. Rustomji's case, AIR 1955 Bom 447 | Principle that a decision of a Civil Court (or other non-probate court) as to proof of a will does not operate as res judicata in probate proceedings; probate courts exercise exclusive jurisdiction and deliver judgments in rem. | The Court relied on this decision to hold that the Revenue Court's decision on the Will does not operate as res judicata in the probate proceedings where the sole question is proof of the Will. |
| Ramanand Thakur's case, AIR 1982 Patna 87 | Observation that the right to apply for probate accrues from day to day so long as the Will remains un-probated, making it difficult to fix an accrual date and implying no fixed period of limitation. | The Court relied on this principle to conclude that Article 137 of the Limitation Act is not applicable to an application for probate and that the lower Court's finding of time-bar under Article 137 was erroneous. |
| Shobha v. Janki, AIR 1987 Madh Pra 145 (1988 MPLJ 28) | Support for the proposition that the Limitation Act does not govern enforcement of rights under a Will and that Article 137 has no applicability to probate applications; distinguished Kerala S.E. Board's case. | The Court cited this decision in confirming that Article 137 does not apply to probate proceedings and to support reversal of the limitation finding of the lower Court. |
| Shaikh Munshi's case, 1962 MPLJ (SN) 123 | Support for the competency of appeal under Section 299 of the Succession Act to the High Court against decisions of an Additional District Judge in probate-related matters. | The Court cited this case to confirm that a civil miscellaneous appeal was competent and that appeal lay to the High Court under the Succession Act and relevant provisions of the Code. |
| Kanubai's case, 1983 MPWN 316 | Relied on by respondent to argue that a Revenue Court decision should operate as res judicata in subsequent proceedings. | Referenced by the Court as a case relied upon by respondent; however, the Court ultimately held the Revenue Court decision did not operate as res judicata in probate proceedings (drawing on J. Rustomji's case). |
| Chandroji Rao's case, 1970 RN 1 | Relied on by respondent to support the proposition that revenue court decisions on title could operate as res judicata despite summary proceedings. | The Court noted reliance on this authority by the respondent but, in the context of probate proceedings, rejected the contention that a Revenue Court decision on the Will would operate as res judicata. |
| Prabhakar's case, AIR 1984 Bom 65 | Relied on by respondent for the proposition that decisions of summary/revenue proceedings concerning title operate as res judicata. | The Court acknowledged the reliance but did not accept that those authorities had the effect of making the Revenue Court decision binding in probate proceedings. |
| Zubeda Khatun's case, 1985 MPWN 437 | Referenced as a decision to be usefully perused concerning res judicata and probate matters. | The Court cited it as an additional reference supporting the court's view on res judicata in probate matters but primarily relied upon J. Rustomji's case for its holding. |
| Kerala S.E. Board's case, AIR 1977 SC 282 | High Court decision discussed in Shobha v. Janki and distinguished there; related to whether Limitation Act applies to certain rights. | The Court noted that Shobha v. Janki distinguished this decision; the High Court relied on that distinction in its discussion that Article 137 does not apply to probate proceedings. |
| Zimali's case, AIR 1949 Nag 154 | Referenced in the context of limitation and probate applications (supporting the non-applicability of limitation in probate matters). | The Court referred to this decision alongside Shobha and Ramanand Thakur to support the conclusion that Article 137 is not applicable to probate applications. |
Court's Reasoning and Analysis
The Court's analysis proceeded through several discrete steps, each grounded in statutory provisions or precedent cited in the opinion:
- Proof of the Will despite death of attesting witnesses: The Court rejected the respondent's contention that the Will could not be proved because attesting witnesses were dead. It relied on Section 68 of the Evidence Act which requires the examination of an attesting witness only "if there be an attesting witness alive." Where attesting witnesses are dead, the Will can be proved by the manner provided for proof of a document.
- Competency of the appeal: The Court examined Sections 295 and 299 of the Succession Act and relevant provisions of the Code of Civil Procedure (including section 104 and Order 43) to determine appealability. It held that the impugned order was appealable under the Succession Act and that a civil miscellaneous appeal was competent. The Court cited Shaikh Munshi's case to support that appeals against decisions of an Additional District Judge in such matters lie to the High Court.
- Res judicata and effect of Revenue Court decision: The respondent argued that the Revenue Court's finding of forgery in mutation proceedings should operate as res judicata. The Court considered the respondent's reliance on Explanation VIII to Section 11 CPC (1976 amendment) and on decisions such as Kanubai's, Chandroji Rao, and Prabhakar. However, relying on J. Rustomji's case (and noting Zubeda Khatun's case), the Court held that decisions of a Revenue/Civil Court as to proof of a will do not operate as res judicata in probate proceedings. The reasoning emphasized that probate proceedings are different in nature — the probate Court delivers a judgment in rem and has exclusive jurisdiction to determine probate matters, whereas Civil/Revenue Courts determine rights between parties.
- Limitation issue: On limitation, the Court reviewed authority including Ramanand Thakur's case and Shobha v. Janki (which distinguished Kerala S.E. Board's case). Ramanand Thakur was cited for the proposition that the right to apply for probate accrues from day to day so long as the Will remains un-probated, making it impractical to fix an accrual date and implying no period of limitation applies. Shobha v. Janki supported the proposition that the Limitation Act does not deal with enforcement of a right under a Will and that Article 137 is not applicable to probate proceedings. The High Court concluded the lower Court's finding that the probate application was barred by Article 137 was erroneous.
- Outcome of analysis: Because the Court found (a) the Revenue Court decision did not operate as res judicata in the probate proceedings and (b) Article 137 did not apply to the probate application, the impugned order dismissing the application as time-barred was set aside.
Holding and Implications
Holding: THE APPEAL IS ALLOWED; the impugned order dismissing the application for probate as barred by time is set aside.
Direct consequences ordered by the Court (as set out in the opinion):
- The impugned order dated 12-12-1987 dismissing the probate application as barred by Article 137 is set aside.
- The case is remanded to the learned lower Court for decision in the light of the law as discussed in the opinion (i.e., without treating Article 137 as applicable and without treating the Revenue Court decision as operating as res judicata in the probate matter).
- The respondent shall bear her own costs in the High Court and shall pay to the appellant the appellant's costs of this appeal.
- The record of the lower Court is to be sent back immediately.
Broader implications: The opinion primarily addresses the direct contest between the parties and applies existing authorities to hold that (i) a Revenue Court decision on a Will does not operate as res judicata in probate proceedings, and (ii) Article 137 of the Limitation Act is not applicable to applications for probate. The opinion does not purport to lay down a new principle beyond its reliance on and application of the cited authorities.
1. This appeal under Section 299 of the Succession Act, 1928 (for short 'the Succession Act') is directed against the order dt. 12-12-1987 passed by the Additional Judge to the District Judge, Indore, at Mhow, dismissing the appellant's application under Section 276 ibid for grant of Probate, on the finding that it is barred under Article 137 of the Limitation Act, 1963 (for short 'the Limitation Act').
2. Circumstances giving rise to this appeal are there. The appellant Balwant filed an application before the learned lower Court on 26-4-80 under Section 276 of the Succession Act for grant of Probate stating that Bonder who died on 24-12-73 had executed a Will dt. 20-9-1973 and thereunder he is the legatee and also the executor.
3. The aforesaid application was opposed by respondent Mainabai who is the widow of Kanhaiyalal, pre-deceased son of Bonder. According to her the Will is a forged one.
4. It was also urged on behalf of the respondent that in the mutation proceedings under the M.P. Land Revenue Code, 1959 (for short 'the Revenue Code') the Will has been found to be a forged one and this decision operates as res judicata.
5. On the contentions canvassed by the Parties, the learned lower Court framed two preliminary issues, one regarding the bar of res judicata and the other regarding the bar of limitation.
6. By the impugned order the learned lower Court has held that the decision of the Revenue Court does not operate as res judicata. On the issue regarding limitation it held that the application not having been filed within 3 years of the death of Bonder; was under Article 137 of the Limitation Act, impugned order came to be passed.
7. The contention of the learned counsel for the appellant is that the learned lower Court erred in holding that an application for grant of Probate is governed by Article 137 of the Limitation Act. According to the learned counsel the Limitation Act does not deal with enforcement of right under a Will and the right to apply for a Probate accrues from day to day so long as the Will remains un-probated. In support of his submission he placed reliance on the decisions in Shobha v. Janki, 1988 MPLJ 28 : (AIR 1987 Madh Pra 145) and Ramanand Thakur's case, AIR 1982 Patna 87.
8. The point for consideration is whether the appeal deserves to be allowed.
9. It may be stated at the outset that the respondent's contention that as attesting witnesses; are dead the Will can in no circumstance be proved is wholly devoid of merit. A plain perusal of Section 68 of the Evidence Act shows that the requirement of examining at least one attesting witness is to be fulfilled 'if there be an attesting witness alive'. Where the attesting witnesses are dead the will can certainly be proved in the manner provided for proof of a document.
10. The next contention of the respondent's learned counsel that this miscellaneous appeal is incompetent and the appellant ought have filed a regular appeal, must also fail. Section 295 of the Succession Act provides that in any case in which there is contest the proceedings shall have, as nearly as may be, the form of a regular suit, according to the provisions of the Civil P.C., 1908 (for short 'the Code'). Section 299 of the Succession Act which provides for appeal is in these terms:--
"Every order made by a District Judge by virtue of the powers hereby conferred upon him shall be subject to appeal to the High Court in accordance with the provisions of the Code of Civil Procedure, 1908 (5 of 1908), applicable to appeals."
11. Reference at this stage may be made to section 104 of the code which relates to appeals from orders. Sub-section (1) thereof expressly enumerates certain orders under the Code and reads as under :--
"An appeal shall lie from the following orders and save as otherwise expressly provided in the body of the Code or by any law for the time being in force, from no other orders."
Order, 43 Rule 1 of the Code provides that an appeal shall lie from the orders thereunder enumerated under the provisions of section 104. The orders thereunder enumerated are those passed under the Code. Sub-section (2) of Section 104 of the Code lays down that no appeal shall lie from any order passed in appeal under this section. It is by virtue of Rule 2 of Order 43 that the rules of Order 41. So far as may be become applicable to appeal from orders.
12. From the foregoing discussion it is clear that the impugned order is an appealable order as provided by the Succession Act and miscellaneous appeal is competent. Reference in this connection may usefully be made to the decisions in Shaikh Munshi's case, 1962 MPLJ (SN) 123 wherein disposing of the Civil Miscellaneous appeal, with reference to Section 299 of the Succession Act it has been pointed out that appeal against the decision of an Additional District Judge whether or not invested with powers co-extensive with those of District Judge regarding grant of Letters of Administration, lies to the High Court.
13. The next contention of the learned counsel for the respondent is that in view of the provision embodied in Order 41, Rule 22 of the Code even without filing cross-objection it is open to the respondent to urge that the decision on the question of res judicata ought to have been in her favour. According to the learned counsel in view of Explanation VIII added to Section 11 of the Code in 1976 by Amendment Act No. 104 of 1976, the decision of a Revenue Court touching the will operates as res judicata. For this submission reliance was placed on the decision in Kanubai's case, 1983 MPWN 316.
14. A plain perusal of the provision in Order 41, Rule 22 of the Code shows that any respondent may not only support the decree but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour, and may also take any cross-objection to the decree which he could have taken by way of appeal and it is open to the present respondent to contend that the issue regarding res judicata ought to have been decided in her favour.
15. According to the learned counsel for the respondent Rule 32 of the Mutation Rules, made by the State Government in 1965 for mutation and preparation of land records, requires that the decision has to be made on the basis of title and not mere possession. He urges that though the proceedings were summary in nature, even on the question of title the Revenue Court's decision would oeprate as res judicata. Reliance for this submission was placed on the Apex Court's decision in Chandroji Rao's, 1970 RN 1, and in Prabhakar's case, AIR 1984 Bom 65.
16. The contention of the learned counsel for the appellant is that though by enacting Explanation VIII in Section 11 of the Code decisions of 'Courts of limited jurisdiction' have been brought within the purview of Section 11 but the probate proceedings stand on quite a different footings from proceedings in which decisions are binding only between contending parties and those claiming under them. According to the learned counsel the decision of even a Civil Court cannot operate as res judicata'in probate proceedings in probate Court which has exclusive jurisdiction. In support of this submission he has placed reliance on the decision in J. Rustomji's case, AIR 1955 Bom 447. Therein it has been observed as under (para 1) :
"A decision as to the proof of the will given by any Civil Court can under no circumstance operate as res judicata in probate proceedings taken out in the probate Court. In a civil suit the Court is only concerned with deciding the rights between the parties. The Probate Court is a Court of conscience, and it does decide rights between parties but it has to deliver a judgmentwhich would become a judgment in rem and this judgment will bind not only the parties before it but the whole world. Therefore, the approach of a Probate Court to the question before it is different from the approach of a Civil Court adjudicating upon the rights between the parties, and this position is made clear by the provisions of Section 41, Evidence Act. Therefore, a judgment in rem, which is the judgment with which Section 41 deals, is a judgment passed by a Court as the exclusive Court dealing with probate matters.
The decision in Zubeda Khatun's case, 1985 MPWN 437, may also be usefully perused.
17. Relying on the decision in J. Rustomji's case (AIR 1955 Bom 447) (supra), I hold that the decision of the Revenue Court touching the will does not operate as res judicata in the probate proceedings in which the sole question involved is as to the proof of the will.
18. This brings us to the question of limitation in relation to an application for probate. In the decision in Ramanand Thakur's case (AIR 1982 Patna 87) (supra) it has been observed as under:--
"In the case of an application for grant of probate or Letters of Administration, it is difficult to find out as to when the right to apply accrues and unless that date is fixed, there is no question of starting of the period of limitation. The right to apply for a probate accrues from day to day so long as the will remains unprobated. In other words, the right to apply accrues every day and the cause of action for an application for probate arises every moment so long as the will remains unprobated and, therefore, for such an application there is no period of limitation."
19. In the decision in Shobha v. Janki (AIR 1987 Madh Pra 145) (supra) the decision in Kerala S.E. Board's case, AIR 1977 SC 282 has been distinguished. Therein, observing that it is not obligatory for Hindus to obtain probate but if a probate is obtained, Section 216 of the Succession Act becomes operative, it has been pointed out that Limitation Act does not deal with enforcement of a right under a will and Article 137 of the Limitation Act has no applicability to probate proceedings or the application for probate. Reference in this very connection may also be made to the Division Bench decision in Zimali's case, AIR 1949 Nag 154.
20. As a result of the foregoing discussion I hold that the finding recorded by the learned lower Court that the application for grant of probate is barred under Article 137 of the Limitation Act is erroneous and deserves to be set aside.
21. In the result the appeal is allowed. The impugned order dismissing the application for probate as barred by time is set aside. The case is sent back to the learned lower Court for decision in the light of the law as discussed above. The respondent shall bear her own costs and shall pay to the appellant the latter's costs of this appeal. Record of the Court below be sent back immediately.
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