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Jagojoti Bose And Another v. Baruruchi Bose And Others Opposite Parties.
Factual and Procedural Background
The disputed property originally belonged to Haricharan Bose, who died on 7-8-1950. He had three sons: the plaintiff, defendant no. 4, and defendant no. 5. On 10-10-1946, Haricharan Bose executed a Will in favor of defendants 4 and 5, effectively excluding the plaintiff from inheritance under the Will. On 30-10-1958, the plaintiff filed T.S No. 60 of 1958 seeking partition of his one-third interest in the property. Defendants 4 and 5 responded by claiming the entire property based on the Will and later filed for Probate of the Will on 12-9-1960, registered as O.S No. 28 of 1961. A preliminary decree for partition was passed in favor of the plaintiff on 28-6-1961. Probate of the Will was granted on 28-11-1962 despite plaintiff's contest. The plaintiff then applied on 10-7-1964 to make the preliminary decree final, which defendants 4 and 5 objected to on the ground that probate conferred full title to them, negating plaintiff’s claim. The Subordinate Judge rejected this objection on 26-7-1965, prompting the present revision.
Legal Issues Presented
- Whether the grant of Probate of the Will subsequent to the passing of the preliminary decree for partition can affect or modify the rights determined by that preliminary decree.
- Whether defendants 4 and 5 can rely on Probate obtained after the preliminary decree to exclude the plaintiff’s one-third interest in the disputed property.
- The legal effect and finality of a preliminary decree in a partition suit vis-à-vis subsequent Probate proceedings.
Arguments of the Parties
Petitioners' Arguments (Defendants 4 and 5)
- Probate confers full title in the disputed property on them to the exclusion of the plaintiff.
- The application for making the preliminary decree final should be dismissed in light of Probate.
- Though Probate was granted after the preliminary decree, the rights of the parties can be adjusted at the stage of the final decree, modifying the preliminary decree accordingly.
Respondent's Arguments (Plaintiff)
- This information was not available in the provided opinion.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Will Hem Nalini v. Isolyne Sarojbasini, 1962 S.O.D 875 | Probate or Letters of Administration relate only to due execution of the Will, not to title of property. | Established that Probate confirms genuineness of the Will but does not itself determine title; title here was admitted. |
| Baman Chandra v. Balaram, A.I.R 1966 Orissa 160 | Finality and conclusiveness of preliminary decree in partition suits. | Applied to hold that preliminary decree conclusively determines rights and cannot be varied by Probate obtained later. |
| Venkata Reddy v. Pethi Reddy, A.I.R 1963 S.C 992 | Preliminary decree in partition or mortgage suits is conclusive and final in respect of matters decided. | Supported the principle that preliminary decree’s finality is not dependent on executability and cannot be questioned later. |
| Billa Basini v. Dullai Chandra, A.I.R 1958 Cat. 472 | Section 14(1) of the Hindu Succession Act allows modification of rights during final decree proceedings. | Distinguished from present case; allowed modification of rights in final decree on statutory basis unlike Probate affecting preliminary decree. |
Court's Reasoning and Analysis
The Court began by clarifying that Probate concerns only the due execution of the Will and does not determine title to property. Since the title of Haricharan Bose to the disputed property was admitted, the question was whether Probate granted after the preliminary decree could alter the rights conclusively determined by that decree. The Court relied on authoritative precedents establishing that a preliminary decree in partition suits conclusively determines rights and is final unless successfully challenged on appeal. The defendants could have, but failed to, assert their Probate claim before the preliminary decree was passed. Consequently, the Probate obtained later cannot be used to vary or overturn the rights fixed by the preliminary decree. The Court invoked the principle of res judicata, holding that defendants had abandoned their right to rely on Probate by not pursuing it timely and that the plaintiff’s rights under the preliminary decree must prevail. The Court distinguished the cited case of Billa Basini v. Dullai Chandra on the ground that it involved statutory modification under the Hindu Succession Act during final decree proceedings, which is not analogous to the present Probate issue.
Holding and Implications
The civil revision is dismissed.
The Court upheld the finality of the preliminary decree determining the plaintiff’s one-third interest in the disputed property, rejecting the defendants’ attempt to alter those rights by relying on Probate granted after the preliminary decree. The decision enforces the principle that rights conclusively determined by a preliminary decree in partition proceedings cannot be reopened or modified by subsequent Probate claims not timely asserted. No new precedent was established; the ruling confirms the established doctrine of finality and res judicata in partition suits. The parties were ordered to bear their own costs.
G.K Misra, C.J:— The disputed property admittedly belonged to one Haricharan Bose who died on 7-8-1950. He had three sons: plaintiff, defendant no. 4 and defendant no. 5. On 10-10-1946 he executed a Will in respect of the disputed property in favour of defendant No. 4 and defendant no. 5. Thus he divested the plaintiff from inheritance under the Will. On 30-10-1958 plaintiff filed T.S No. 60 of 1958 for partition of his one-third interest in the disputed property. Defendants 4 & 5 filed a written statement on 25-2-1959 claiming the entire property to themselves on the strength of the Will. On 12-9-1960, defendants 4 and 5 filed an application for Probate of the Will which was registered as O.S No. 28 of 1961 in the Court of the District Judge, Cuttack.
2. On 28-6-1961 a preliminary decree for partition was passed in favour of the plaintiff in T.S No. 60 of 1958 in the Court of the Subordinate Judge, Cuttack. On 28-11-1962 Probate of the Will was granted after contest by the plaintiff. On 10-7-1964, plaintiff filed an application in T.S 60 of 1958 in the Court of the Subordinate Judge for making final the preliminary decree for partition. On 12-2-1965, defendants 4 and 5 filed an objection that plaintiff had no title in the disputed property after probate was granted and plaintiff's application for making the preliminary decree final should be rejected. This contention was negatived by the learned Subordinate Judge and it is against this order passed by him on 26-7-1965 that this revision has been filed.
3. Mr. Sinha for the petitioners contends that the title of Haricharan Bose to the disputed property not being questioned, the probate conferred full title in the disputed property on the petitioners to the exclusion of the plaintiff (opposite party no. 1) and that the application for making the preliminary decree final should be dismissed and that though the probate was granted subsequent to the passing of the preliminary decree, the rights of the parties can be adjusted at the stage of the final decree, affecting or modifying the preliminary decree. This contention has no substance as would be discussed hereunder.
4. Certain elementary propositions of law need be stated before the contention of Mr. Sinha is examined. Probate or Letters of Administration are not concerned with title to property but are only concerned with the due execution of the Will Hem Nalini v. Isolyne Sarojbasini . 1962 S.O.D 875.. In the present case however this question is academic inasmuch as the title of Haricharan Bose in the disputed property is admitted. After the grant of Probate on the basis that the Will was genuine, defendants 4 and 5 were entitled to the entire property, to the exclusion of the plaintiff if the Probate bad been set up in defence in the partition suit prior to the passing of the preliminary decree for partition. Defendants 4 and 5 however did not obtain Probate of the Will until the preliminary decree for partition was passed, though they had set up in defence absence of title in the plaintiff in the disputed property on the basis of the Will. The question for consideration is whether grant of Probate subsequent to the preliminary decree for partition becoming conclusive, could confer the same rights on defendants 4 and 5 which they could have got before the passing of the decree for partition if the Probate had been set up in defence. This position is fully answered in Baman Chandra v. Balaram . A.I.R 1966 Orissa 160., where the significance of preliminary decree was construed. Therein this Court observed thus:—
“The aforesaid three provisions newly introduced for the first time in the present Code bring into bold relief an important change that in a preliminary decree certain rights are conclusively determined, and unless the preliminary decree of a Court is assailed in appeal, the rights so determined become final and conclusive and cannot be questioned in the final decree. In that limited sense the preliminary decree itself is a final decree so far as those rights are concerned”.
5. Reference was also made to a passage in Venkata Reddy v. Pethi Reddy . A.I.R 1963 S.C 992., wherein their Lordships laid down the following proposition:
“A preliminary decree passed, whether it is in a mortgage suit or partition suit, is not a tentative decree but must, in so far as the matters dealt with by it are concerned, be regarded as conclusive. No doubt, in suits which contemplate the making of two decrees, a preliminary decree and a final decree, the decree which will be executable would be the final decree. But the finality of a decree or a decision does not necessarily depend upon its being executable. The Legislature in its wisdom has thought that suits of certain types should be decided in stages and though the suit in such cases can be regarded as fully and completely decided only after a final decree is made, the decision of the Court arrived at, at the earlier stage, also has a finality attached to it”.
6. Doubtless, in certain oases even after the passing of the preliminary decree there may be some adjustments in the course of the final decree proceedings. Some of those circumstances were indicated in the aforesaid Orissa decision. For instance, where a transferee is impleaded subsequent to the passing of the preliminary decree, or in case of death of parties whose rights were carved out in the preliminary decree, the interests of the transferee or the heirs of the deceased can be equally carved out. Such instances, however do not affect the fundamentals of the preliminary decree. In such cases, impleation of parties or carving out of interests is made on acceptance of the preliminary decree being correct and final in respect of all matters decided therein.
7. The position here is completely otherwise. By the preliminary decree the jural relationship amongst the parties inter se was finally decided and it was declared that the plaintiff had a one third interest in the disputed property. If the Probate of the Will is allowed to vary the rights, a conclusion must be reached to the effect that the plaintiff is not entitled to the property. This would affect the very basis of the preliminary decree and the rights carved out. The juristic theory underlying the reason why this cannot be done is that defendants 4 and 5 could have pressed into service the Probate if they had been vigilant in time. In fact, they had taken the defence under the Will in the written statement. So, their claim on the strength of the Will and the Probate subsequent to the preliminary decree is barred by the principle of res judicata actual and constructive. It was open to defendants 4 and 5 to get the partition suit stayed, proceed with the Probate proceeding pending in the Court of the District Judge and, after obtaining the Probate, to set it up in defence in the partition suit. That was the only course available to them. When they failed to do so, they abandoned their right based on the Probate. The fact that the plaintiff contested the Probate proceeding and that in his presence Probate was granted, is wholly immaterial for the simple reason that by the time Probate was granted the rights of the parties on the basis of inheritance had already been worked out and the stage of setting up the Probate in defence had passed off.
8. Mr. Sinha places reliance on Billa Basini v. Dullai Chandra . A.I.R 1958 Cat. 472.. This case is clearly distinguishable. Though the rights of the parties had been crystallised and were conclusively determined by the preliminary decree in that case, an objection under Section 14(1) of the Hindu Succession Act as to the character of the property was set up during the final decree proceeding. Under that Section, in any property possessed by a female Hindu, whether acquired before or after the commencement of the Hindu Succession Act, 1956, she acquires an absolute interest. The widow's share had been declared in the preliminary decree, she was in possession, and as such it was quite open to the Court to declare during the final decree proceeding that the interest which she had was absolute, on the basis of Section 14(1) of the Hindu Succession Act.
9. On the aforesaid analysis the contention of Mr. Sinha is rejected.
10. The civil revision fails and is dismissed, but in the circumstances, parties will bear their own costs throughout.
11. Revision dismissed.
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