Janakbati Thakurain v. Babu Gajanand Thakur

Mullick, J.:— Rudra Nand, Rula Nand and Tirtha Nand were three brothers of a Mitakshara family, living joint in food and worship. It is alleged that Kula Nand separated from the joint family about twenty years before the Will, which is the subject of the case before us.

Rudra Nand died on the 11th of June 1911, leaving a Will alleged to have been executed on the 9th of June 1911. Probate of the Will was applied for by Gira Nand and Gaja Nand, sons of Tirtha Nand, on the 6th of December 1911. On the 18th May 1912, Janakbati, the widow of Rudra Nand, filed an objection attacking the Will as a forgery. On the 18th of August 1912 a petition alleged to have been signed by Janakbati was filed before the Court stating that she and the pro-pounders had agreed to divide the testator's property and praying that the application for probate might be dismissed on compromise without decision. It appears that on the same day another petition purporting to have been signed by Janakbati was filed before the Court stating that the petition of compromise had not in fact been signed by her.

On the 25th of May 1912 the learned District Judge framed the following issues for determination:—

1. Is the Will propounded by the Plaintiffs genuine?

2. Was the testator Rudra Nand Thakur in a sound disposing state of mind when he is alleged to have executed the said Will?

3. Are the Plaintiffs entitled to probate as prayed?

But on the 19th of August 1913 he disregarded the issues framed on the 25th of May 1912 and addressed himself only to the two following issues:—

1. Can this case be disposed of in terms of the petition of compromise?

2. Did Mussammat Janakbati sign the petition of compromise with full knowledge of its contents after it was written?

The learned District Judge took evidence upon the two issues above mentioned and found that inasmuch as the objectrix had with full knowledge signed the petition of compromise, she was no longer competent to resile from the same. He accordingly ordered the case to be dismissed in terms of the petition of compromise. The learned District Judge's decree is to the same effect and after reciting that the case is dismissed in accordance with the petition of compromise it proceeds to embody in it the full terms of that compromise. The present appeal before us is preferred by the objectrix who asks that the case should be remanded in order that the execution of the Will may be proved in solemn form.

It is quite clear and the learned Vakil for the Respondent admits that the learned District Judge's order, as it stands, cannot be supported. In a probate case a decree such as that passed by him is meaningless. There can be no dismissal of a probate case in accordance with the terms of a petition of compromise. The main issue in such a case is whether or not the Will has been proved and as has been pointed out in several decisions in the Courts the only effect of a compromise is to reduce a contentious proceeding into one which is not contentious; but this does not absolve the Court from the task of either granting probate or refusing it. If a compromise has been made and the objector withdraws from the contest the Court will grant probate in common form but the Court cannot dismiss the case altogether and embody the terms of the compromise as if the decree was one capable of execution by him.

The learned Vakil for the Respondent relies upon Or. XXIII, r. 3 of the Civil Procedure Code read with sec. 83 of the Indian. Probate and Administration Act. But these sections merely mean that in a probate case the Civil Procedure Code so far as possible determines the procedure of the Court. These sections nowhere say that it is competent to the Court to allow the parties to divide the testator's property without proving the Will.

The cases of Kunja Lal Chowdhury v. Kailash Chandra Chowdhury and Saroda Kanta Dass v. Gobindo Mohan Dass, carry the case of the Respondent no further. In the first of these two cases it was no doubt laid down that when probate has been given in common form upon the filing of a petition of compromise by the objector it will no longer be open to the same objector to re-open the proceedings by way of revocation. But the learned Vakil for the Respondent has been unable to show any case which goes so far as to say that before probate is given by the Court it is not open to the objector to insist upon the proof of the Will. The view of the learned lower Court appears to have been that as on the 28th of August 1912 the objectrix had agreed to a compromise it was no longer open to her to resile from it except upon proof of fraud. In my opinion that is an erroneous proposition of law. It must always be a question of fact whether the proceedings are contentious or not. It may be that on the 28th of August 1912 the objectrix had consented to withdraw her objection but it is quite clear that on the 19th of August 1913 she had withdrawn that petition and that she was insisting upon the trial of the issue whether the Will had been duly executed. She was not estopped from withdrawing her objection and from asking that the Will should be proved in solemn form. This being so the Order and Decree of the lower Court must be set aside and the case remanded for disposal according to law. The objectrix will have a chance of contesting the genuineness of the Will and if she fails probate must be given in solemn form. If she withdraws her abjection probate must be given in common form but the Court must do either one or the other of these two things. If she succeeds the application of the pro-pounders will be dismissed. As regards lie compromise alleged to have been made by the objectrix the Court has no greater power to enforce it than any other contract made out of Court.

The appeal is decreed with costs which will be according to scale.

Kingsford, J.:— I agree.

A.K.R

Appeal allowed.