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Advocates
  • Mr. Abdul Jawad for the Appellant.
  • Babu Promotho Nath Sen for the Respondent.
Judges
  • Brett
  • Mitra, JJ.
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Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • Mr. Abdul Jawad for the Appellant.
  • Babu Promotho Nath Sen for the Respondent.
Judges
  • Brett
  • Mitra, JJ.
See more information ...
Smart Summary

Structured Summary of the Legal Opinion

Factual and Procedural Background

This is an appeal by a caveatrix, Monmohini, in a probate proceeding where the Respondent, Banga Chandra Das, propounded a Will as that of Srimantaram Dass (deceased 27 January 1900). Surviving relatives named in the opinion include the daughter (Monmohini), her minor son Hara Kumar Guha, a grandson Khetter Mohan Dass, and a widow Powrani alias Swarnalata (the legality of whose marriage to the deceased is disputed). Banga Chandra is husband of the deceased daughter of Srimantaram and father of Khetter Mohan.

The Will (dated 28 June 1889) purported to devise equal shares to the two grandsons (Khetter Mohan and Hara Kumar) to be received on attaining majority, and directed that Banga Chandra and Monmohini act as maliks/managers and executor and executrix until the grandsons were of age. The widow and Monmohini were largely excluded from inheritance except for maintenance provision for the widow.

Procedurally: a petition presenting the Will was verified by a witness (Annada Charan Dutta) and presented on 30 January 1901. Monmohini filed a caveat on 8 March 1901 alleging the Will was false. From that date the matter proceeded as an original suit with witness attendance and commission examinations. On 3 December 1901 two compromise petitions were filed (one signed by Banga Chandra and Rupasi Mohan Guha as general mukhitear of Monmohini, and another by Rupasi Mohan Guha as general agent). These petitions sought probate in terms of a partition arrangement between the grandsons.

On 5 December 1901 Monmohini repudiated the action of her general agent Rupasi Mohan Guha, alleging the petitions had been filed without her knowledge and in collusion with Banga Chandra, and asked that the compromise petitions be rejected and the case be disposed of after a regular trial. Though Monmohini offered to be examined in Court, the District Judge, on 7 December 1901 and relying on an am-mukhtearnama of 4 March 1901, held she was bound by the act of her general agent and directed probate be granted in accordance with the compromise; a formal decree was passed accordingly. The present appeal challenges that judgment and decree of 7 December 1901.

Legal Issues Presented

  1. Whether a District Judge may grant probate based on a compromise presented by an agent where the principal (here a caveatrix) repudiates the agent's action before the Court accepts the compromise.
  2. Whether the consent of parties (or a compromise) can substitute for the formal proof of a Will in a contentious probate proceeding.
  3. Whether a compromise that deals with matters beyond the subject-matter of the probate proceeding (for example, partition affecting beneficial interests of persons not before the Court, including minors) is lawful or within the scope of a probate proceeding under the Probate and Administration Act.
  4. Whether the Court may record a compromise that has the effect of excluding evidence required to determine the genuineness and due execution of the Will.

Arguments of the Parties

Appellant's (Monmohini) Arguments

  • Monmohini repudiated the action of her general agent Rupasi Mohan Guha, stating the compromise petitions were filed without her knowledge and consent and were fraudulently filed in collusion with Banga Chandra.
  • She supported her repudiation by a verified petition and an affidavit of another general agent (Chandra Sekhar Dutt), and offered to give her deposition in Court.

Respondent's (Banga Chandra / Respondent's counsel) Arguments

  • The Respondent caused compromise petitions to be presented by Rupasi Mohan Guha as general agent of Monmohini, seeking probate in terms of the compromise partitioning the deceased's properties between the grandsons.
  • According to the opinion, the learned vakil (counsel) for the Respondent requested a remand "for receiving evidence and ??? determination of the question ??? Monmohini had consented ??? compromise," but the opinion contains textual gaps in this passage (presented in the source as "???") and declines that request. (The opinion records the request but the precise wording in the record is partially illegible.)

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Brojodurlabh Sinha v. Rama Nath Ghose Authority that the Court may make an inquiry as to the fact of a compromise and, if it finds the suit adjusted by a lawful agreement, may pass a decree in accordance with it. The Court relied on this principle to observe that an inquiry should have been made into the compromise before accepting it, and that no such inquiry occurred here despite repudiation and supporting evidence from the principal.
Roodnight v. Carter Illustrates that a compromise can make a contentious probate proceeding non-contentious where opposition is abandoned. The Court noted that reported cases, including Roodnight v. Carter, often involved compromises that rendered contentious proceedings non-contentious, but distinguished those situations from the present case where the compromise sought to exclude necessary proof and affected persons not before the Court.
Evans v. Saunders Suggested in the opinion to indicate that an agreement in a probate proceeding might be made a rule of Court, though the report of the case is meagre. The Court observed the report is too meagre to support a broad proposition and therefore did not treat it as authoritative for allowing the kind of compromise recorded below.
Norman v. Strains Authority (Sir James Hannen) that the judge's duty is to determine whether a particular will is the will of the deceased, and not simply to confirm arrangements. The Court cited this case to support the proposition that a judge must determine the genuineness of the Will and may decline to confirm a compromise that prevents such determination.
Ravji Ranchod Naik v. Vishun Ranchod Naik Held that in contentious probate proceedings the mere refusal of a caveator to answer a question does not justify dispensing with proof of the Will (reference to sec. 177 CPC). The Court relied on this to emphasize that procedural obstacles or refusals do not permit the Court to avoid requiring proof of the Will in contentious proceedings.
Ghellabhai Alma Ram v. Nandubai Addressed whether an executor could submit the genuineness and execution of a Will to arbitration; held he could not. The Court cited this authority to support the principle that matters going to the authenticity of a Will cannot be disposed of by private agreement or alternative dispute resolution that prevents judicial determination.

Court's Reasoning and Analysis

The appellate Court examined both procedural irregularity and substantive law governing probate. It reasoned as follows:

  1. Right to Repudiate Agent's Compromise: The Court emphasized that any party has the right to repudiate an agent's compromise without knowledge or consent before a court order accepting it is passed. The District Judge should have inquired into whether the compromise was lawfully made, as contemplated by Brojodurlabh Sinha v. Rama Nath Ghose.
  2. Failure to Make Inquiry: In the present case the District Judge made no inquiry despite Monmohini's repudiation being supported by a verified petition, an affidavit of another agent, and her offer to be examined in Court. The judge relied solely on an am-mukhtearnama (power of attorney) dated 4 March 1901 and excluded all other evidence.
  3. Compromise Beyond Scope of Probate Proceeding: The Court found the compromise dealt with matters beyond the subject-matter of a probate proceeding, specifically by partitioning property and affecting beneficial interests of persons not before the Court (including a minor). Such orders are beyond the scope of the Probate and Administration Act.
  4. Requirement of Formal Proof in Probate: The Court stated the settled legal position that a Will must be proved — in common form or per testes — and that contentious proceedings require proof in solemn form. The mere consent of parties cannot validate a grant of probate; the judge must be in a position to pronounce that the Will is proved and it must be registered as indicated by section 76 of Act V of 1881.
  5. Conclusive Nature of Probate and Limits: A final judgment or order of a competent court granting probate operates as conclusive proof (judgment in rem) under Evidence Act section 41, and can be set aside only by revocation under section 50 of the Probate and Administration Act. This reinforces that the judge must independently be satisfied of the Will's genuineness.
  6. Illegality of Compromise that Excludes Evidence: The Court held that an agreement or compromise which has the effect of excluding evidence relevant to the issue of genuineness and due execution of the Will is not lawful within the meaning of section 375 of the Code of Civil Procedure. The judge must have an opportunity to judge for himself whether the Will is genuine.
  7. Precedential Support: The Court surveyed authorities (including cases referenced above) and concluded that the same principles applicable to arbitration or refusal to answer questions (which cannot excuse proof) apply to compromises that would preclude judicial determination of the Will's authenticity.
  8. Remedial Conclusion: Given these defects — lack of inquiry, exclusion of evidence, and the compromise exceeding the probate jurisdiction — the Court concluded the District Judge's order was irregular and beyond jurisdiction and therefore should be set aside.

Holding and Implications

Core Ruling: The appellate Court set aside the judgment and decree of 7th December, 1901 and remanded the case to the District Judge for determination on the evidence. (The opinion concludes: "Case remanded.")

Direct consequences for the parties:

  • The District Judge must decide the matter on the evidence already on the record and any further evidence that may be produced before him, irrespective of the compromise petitions of 3rd December 1901.
  • The Respondent (Banga Chandra) was ordered to pay the costs of the Appellant incurred in this appeal; the hearing fee was assessed at five gold mohurs.

Broader implications: The opinion stresses established principles about the necessity of judicial proof of Wills in contentious probate proceedings and rejects the use of private compromise to bypass evidentiary determination. The opinion does not state that it is creating a new precedent beyond applying and reaffirming those principles.

S.C.S
Case remanded.
Show full summary ...

    Srimati Monmohini Guha v. Banga Chandra Das .

    This is an appeal by a caveatrix in a proceeding for the probate of a Will propounded by the Respondent, Banga Chandra Das, as the last Will of one Srimantaram Dass. Srimantaram died on the 27th January, 1900 leaving him surviving a daughter, the caveatrix Monmohini, her minor son Hara Kumar Guha, Khetter Mohan Dass, another grandson by a deceased daughter and a Widow Powrani alias Swarnalata, the legality of whose marriage with the deceased is, however, disputed. Banga Chandra, the propounder of the Will, is the husband of the deceased daughter of Srimantaram and father of Khetter Mohan.

    The Will is dated the 28th June, 1889, and bears the attestation of a number of witnesses, of whom Annada Charan Dutta verified the petition which was presented on the 30th January, 1901. Monmohini put in her caveat on the 8th March, 1901 alleging that the Will propounded was false.

    The Will purported to devise in equal shares the testator's estate to his two grandsons, Khetter Mohan and Hara Kumar, after they should attain majority and directed that Banga Chandra and Monmohini should be maliks or managers and executor and executrix until the grandsons were of age. Provision is also made for the maintenance of the widow Powrani alias Swarnalata, but both she and the daughter, Monmohini, were practically excluded from the inheritance.

    On the presentation of the caveat on the 8th March, 1901, the case was numbered as an original suit and from that date to the 3rd December, 1901 various proceedings were taken for the attendance of witnesses and the examination of witnesses on commission and an application was also made on one occasion for time for an amicable settlement. On the 3rd December, 1901 two petitions were presented, one a petition of compromise signed by Banga Chandra and one Rupasi Mohan Guha as general mukhitear of Monmohini and the other by Rupasi Mohan Guha alone as general agent of Monmohini, and by these petitions it was prayed that probate of the Will of Srimantaram, deceased, might be granted to both parties in terms of the arrangement contained in the first-named petition by which the properties of the deceased were partitioned between his grandsons.

    These petitions were taken up by the District Judge on the 5th December, 1901, when a petition dated the same day (the 5th) and verified by herself was presented on behalf of Monmohini in which she repudiated the action of her general agent Rupasi Mohan Guha in presenting the petitions of the 3rd December and stated that they had been filed without her knowledge and consent and fraudulently and in collusion with Banga Chandra. She asked that the petitions of compromise might be rejected and the case disposed of after a regular trial. The District Judge ordered that the matter should be heard on the following day. On that day an affidavit of one Chandra Sekhar Dutt, another general agent of Monmohini, was put in on her behalf in support of her petition of the previous day and the general power she gave to Rupasi Mohan as well as Chandra Sekhar on the 4th March, 1901 was put in on behalf of Banga Chandra. The case was put off to the 7th December, 1901, and on that day Monmohini put in a petition stating that she was present in Court and asking the learned Judge to take down her deposition. The learned Judge however, without taking any evidence and merely on the authority of the am-mukhtearnama of the 4th March, 1901, held that Monmohini was bound by the act of her general agent Rupasi Mohan and could not be permitted to resile from the compromise and he directed that probate should be granted to her and Banga Chandra in accordance with the terms of the compromise. In the formal decree which was passed in accordance with the judgment it was ordered and decreed that probate be granted to the parties in terms of the compromise which were recited in it.

    The present appeal is against the judgment and decree of the 7th December, 1901 and we feel no hesitation in saying that they should be set aside. Even in an ordinary suit, any party has the right to repudiate the action of an agent compromising it without his knowledge and consent before any order of the Court is passed accepting the compromise as the final determination of the suit. The Court may, as held in Brojodurlabh Sinha v. Rama Nath Ghose(1), make an enquiry as to the fact of the compromise and if it holds that the suit was adjusted by at lawful agreement or compromise it may pass a decree in accordance therewith. In the present case no enquiry was made notwithstanding that the repudiation was by a purdanashin lady, and it was supported by her verified petition and the affidavit of another am-mukhtear of hers and the offer of her being herself examined in Court. We are of opinion that the mere fact that her agent Rupasi Mohan signed and presented the petitions pretending to act on her behalf is not sufficient to enable the Court to pass a decree in accordance with them. Besides, the compromise covered matters clearly beyond the subject matter of the suit and dealt with the partition of property in which the beneficial interest according to the Will belonged to persons who were not before the Court and one of whom was a minor. The order made by the learned Judge is clearly beyond the scope of a proceeding for the probate of Will under the Probate and Administration Act. His procedure is also highly irregular as he excluded all evidence except the am-mukhtearnama.

    We have been asked by the learned vakil for the Respondent to remand one case for receiving evidence and ??? determination of the question ??? Monmohini had consented ??? compromise, but we think we ??? not to accede to his request ??? of opinion that the compromise, if any, was not lawful and ought not to be recorded.

    In a proceeding for the probate of a Will, the Will must be duly proved either in common form or per testes. If the proceeding is contentious, as it is in the present case, it must be proved in solemn form. The consent of parties that probate should be granted cannot give validity to a grant of probate, as no grant can be valid unless the Will be proved in some form, and the Judge be in a position to pronounce that it is proved and it is registered before him as indicated by the form of the grant given in sec. 76 of the Act V of 1881. A final judgment or order of a competent Court in the exercise of probate jurisdiction as conferring the status of executor to the grantee of a probate is conclusive proof of such status and the fact that the Will is genuine. It operates as judgment sin rem (Evidence Act, sec. 41) and its effect cannot be nullified except by a proceeding for revocation of the probate under sec. 50 of the Probate and Administration Act. We, therefore, think that no grant of probate can be made merely on the consent of parties. The only issue in a probate proceeding relates to the genuineness and due execution of the Will and it is exclusively the province of the Judge to come to a decision on his issue on the evidence produced ??? him. The Court must itself be satisfies ??? admissible evidence that a Will ??? is the Will of the testator. The ??? in a contentious proceeding cannot ??? themselves the function of decided the issue by agreement or compromise ??? when the next of kin and the persons beneficially interested are not parties to the agreement, we think that though a contentious proceeding for a probate takes, under sec. 83 of the Act, as nearly as may be the form of a suit, an agreement or compromise as regards this issue if its effect is to exclude evidence in proof of the Will is not lawful within the meaning of sec. 375 of the Code of Civil Procedure and when the Court has not an opportunity of judging for itself whether the Will is the Will of the deceased person and to what extent the rights of the parties will be affected if the agreement be allowed to be made a rule of Court. It is true that there is nothing unusual in a compromise being entered into in the course of probate proceedings, but it appears from most of the reported cases which we have looked at that the effect of the compromise was to make a contentious proceeding non-contentions, opposition being abondoned, Roodnight v. Carter(2). Evans v. Saunders(3) would seem to indicate that an agreement in a probate proceeding might be made a rule of Court. But the report of the case is so meagre that it cannot be taken as an authority for the broad proposition submitted for our consideration. In Norman v. Strains(4) Sir James Haneman being asked to confirm an agreement which had been entered into between parties in a proceeding for the Will of one Strains observed, “my duty is to determine whether or no a particular Will is the Will of the deceased person,” and he declined to confirm the arrangement in the stage the case had then arrived.

    In Ravji Ranchod Naik v. Vishun Ranchod Naik(5) Sergent, C.J, held that in a contentious proceeding for a probate, the mere refusal of a caveator to answer a question will not, notwithstanding sec. 177 of the Code of Civil Procedure, justify the Court in dispensing with the proof of the Will. In Ghellabhai Alma Ram v. Nandubai(6) a question arose as to whether an executor against whose application for probate a caveat was entered, could submit to arbitration the matter in dispute, i.e, the genuineness and due execution of the Will. Farran, C.J, was strongly of opinion that he could not.

    We think the same principle applies to a compromise, though there can be no doubt that a caveator may withdraw upon terms his opposition to the Will leaving the Court to decide as to the factum of the Will.

    For these reasons, we think, the case must go back to the District Judge for his decision irrespective of the petitions put in on the 3rd December, 1901. He must decide it on the evidence already on the record and such other evidence that may be produced before him. The Respondent must pay to the Appellant the costs incurred by the latter in this appeal. We assess the hearing fee at 5 gold mohurs.

    S.C.S
    Case remanded.

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    Comments

    Srimati Monmohini Guha v. Banga Chandra Das .
    (Jun 29, 1903)