Sarada Kanta Das v. Gobinda Mohan Das And Maitunnissa Bibi

1. The circumstances, under which the two applications under consideration have been made to this Court, may, be briefly narrated. One Arman Khan died on the 3rd August 1894, and left, as his heirs, his mother, two widows, four sons and four daughters. On the 12th September 1894, Momtaz Ali, the eldest son, applied for probate of a Will alleged to have been executed by his father shortly before his death on the 13th June 1894. Special citation was issued upon the mother and the daughters but no steps were taken to have any guardian appointed on behalf of the infant sons, and no notices were issued to them. The Will was proved in common form as the mother and the widows did not contest the proceedings, and order for grant of probate was made on the 3rd November 1894. The probate was taken out on the 8th December 1894. On the 26th January 1896, Momtaz Ali, as executor, appears to have borrowed a large sum of money from Gobinda Mohan Eai Ohowdhury and others and hypothecated portions of the estate in his charge. The mortgagees subsequently sued to enforce their security, obtained a decree on the 5th September 1898, and on the 16th May 1899, purchased the mortgaged properties, of which they took delivery of possession in due course of law. Meanwhile, Peary Mohan Guha and others, who held decrees against Arman Khan, took out execution against his heirs, and purchased some of the properties on the 22nd April and 23rd May 1898. Shortly after these execution sale.4, in 1899, one of the sons of the alleged testator applied for revocation of the probate, but his application was dismissed for default. In the year following, one of the daughters made a similar application which was dismissed, because her witnesses were not present. Two other applications were made in 1904 by two of the sons, but the Court declined to entertain them on the ground that the persons, under whose guardianship they lived, had been cited to appear in 1894, and had not contested the grant of probate. In 1907, Mayahunnissa Bibee, one of the daughters, made an application for revocation of the probate, and thus commenced the proceedings which are now before us. Objection was taken in the Court below that it was incompetent to her to maintain the application; but the objection was overruled on the ground that the applicant was an infant in 1894, that she was not specially cited, and that ho guardian ad litem was appointed for her in the probate proceedings. The learned Judge in the Court below then held that the grant must be re-called, as the proceedings to obtain it were defective in substance, He consequently re-called the probate, and called -upon the executor to prove the Will in solemn form. It is necessary to mention at this stage that the mortgagees decree-holders, the Rai Chaudhurys, who had purchased a portion of the estate, intervened in the Court below on the ground that, as they had acquired a substantial interest in the properties comprised in the probate they ought to be heard before it was revoked. In fact, they were the principal contestants in the Court below. The executor went into evidence, and on the 20th December 1907, the Subordinate Judge came to the conclusion that the Will was a forgery, with the result that he revoked and annulled the probate already re-called. Against this decree, the interveners preferred an appeal to this Court on the 14th February 1908, and the respondents to the appeal were the executor and the petitioner at whose instance the probate had been revoked. On the 10th May 1910, an application was presented to this Court on behalf of the intervenors appellants and the petitioner respondent, in which it was prayed that as the matter had been settled amicably, the decree of the Subordinate Judge might be discharged, and the probate originally granted, restored. On the same date, another application was presented to this Court on behalf of one Sarada Kant Das, who claimed to have acquired by purchase the interest of the Guhas in the estate under their purchase at the execution sale held on the 22nd April 1898. In this application, Sarada Kanta Das prayed that he might be made a respondent in the appeal, and might be allowed an opportunity, at the hearing of the appeal, to support the decree of the Court below. His allegation was that the intervenors had won over the daughter at whose instance the probate had been revoked, and that, if by their consent, the decree of the Court below was discharged and the grant was revived, his own position might be considerably embarrassed. His case, in substance, was that ho had not intervened in the Court below as the proceedings for revocation of the grant had been bona fide conducted, but that, as there was now a combination between the daughter and the mortgagees purchasers, with a view to defeat the ends of justice, he ought to be allowed to intervene at this stage and he should not be driven to a separate proceeding for revocation of the probate. The two applications, therefore, which we are invited to consider, are, first one jointly by the petitioner in the Court below and the intervenors for a consent decree, and secondly, another by the purchasers of the interest of the execution purchasers for leave to intervene in the appeal with a view to defeat the attempted settlement. The two applications have been heard together, and after a careful consideration of the elaborate arguments which have been addressed to us on both sides, we have arrived at the conclusion that the application for a consent decree ought to be refused, and the application of Sarada Kanta for leave to appear at the hearing of the appeal in support of the decree of the Court below granted.

2. In so far as the application for a consent decree is concerned, the argument in support of it has been of a two-fold character. On behalf of the mortgagees purchasers, the appellants, it has been contended that the application falls under Order XXIII, Rule 3, of the Code of 1908; that the proceeding for revocation of probate is a suit within the meaning of that rule and that it is competent to the parties to adjust the matter in difference so as to terminate the dispute between them. In support of this proposition, reliance has been placed upon the cases of Hargreaves v. Wood (1862) 2 Sw. & Tr. 602 : 32 L.J.P. 8 : 7 L.T. 338 : 11 W.R. 31; Roadnight v. Carter (1863) 3 Sw. Tr. 421 and Wytcherley v. Andrews (1871) I.R. 2 P. & D. 327 : 40 L.J.P. 57 : 25 L.T. 134 : 19 W.R. 1015. On behalf of the daughter of the alleged testator, the petitioner-respondent, in the appeal, it has been contended that the proceeding for revocation of probate is a suit within the meaning of Order XXIII, Rule 1, of the Code of 1908; that although the suit has been decided in the Court of first instance, the effect of the appeal preferred to this Court is to re-open the matter in controversy; that it is competent to her to withdraw the suit at any moment even during the pendency of the appeal and that the effect of such withdrawal will be to revive the probate which has been revoked by the Court below in these proceedings. This argument, in both its branches, is, in our opinion, unsound and ought not to prevail. In so far as the contention of the appellants is concerned, it is clear that Order 23, Rule 3, is of no assistance to them, even if we assume that a proceeding for revocation of a probate is a suit within the meaning1 of that Rule, which it is not, as pointed out by this Court in the case of Pratap Chandra Shah v. Kali Bhanjan Shah 4 C.W.N. 600, where it was ruled that Section 83 of the Probate and Administration Act of 1881, doest not apply to an application for revocation of probate, which is governed by Section 55. Section 55 lays down that the proceeding's in relation to the granting of probate and Letters of Administration shall, except as thereinafter otherwise provided, be regulated, so1 far as the circumstances of the case will admit, by the Code of Civil Procedure; in other words, tinder Section 141 of the Civil Procedure Code of 1908, in proceedings for revocation of a probate, the procedure in regard to suits shall be followed only in so far as it may be made applicable. The question, therefore, arises, to what extent the provisions of Order XXIII, Rule 3, may be applied to proceedings for revocation of probate. Under that Rule, the Court cannot refuse to record and give effect to a compromise except where it is unlawful. Now it has been ruled in the case of Monmohini v. Banga 31 C. 357, that, unless a Will is proved in some form, no grant of probate can be made merely on consent of parties. To put the matter in another way, an agreement or compromise as regards the genuineness and due execution of a Will, if its effect is to exclude evidence in proof of the Will, is not lawful within the meaning of this Rule, and no probate can be granted merely because the caveator consents to the grant; such an agreement is against public policy, for its object is to exclude enquiry into the genuineness of the Will which it is the duty of the Probate Court to make. In other words, as the grant of probate operates as a judgment in rem, the Court must be satisfied that the Will has been duly attested and executed before the grant is made. Ameer Chand v. Mohanund Bibi 6 C.L.J. 453; Ravji Ranchod Naik v. Vishnu Ranchod Naik 9 B. 341 and Ghellabhai Atmaram v. Nandu Bai 21 B. 335. It has been contended, however, on behalf of the appellants that although the settlement of a probate proceeding may not be lawful, the objection does not apply to the compromise of a proceeding for revocation of a probate, and in support of this view, reference has been made to the cases of Hargreaves v. Wood (1862) 2 Sw. & Tr. 602 : 32 L.J.P. 8 : 7 L.T. 338 : 11 W.R. 31; Roadnight v. Garter (1863) 3 Sw. Tr. 421 and Wytcherley v. Andrews (1871) I.R. 2 P. & D. 327 : 40 L.J.P. 57 : 25 L.T. 134 : 19 W.R. 1015. These cases, however, are clearly distinguishable, and do not lend any support to the argument of the appellants. In them, after a Will had been proved in common form, the executor was called upon to prove it in solemn form, but before the proceedings terminated, the caveator withdrew her objection upon compromise. The learned Judges, before whom the compromise was put forward, directed the terms of compromise to be filed, and the contentious proceedings to be discontinued. In the case before us, however, the proceedings have been carried on much further; the executor, who was called upon to prove the Will in solemn form, has made the attempt; the evidence, which he has adduced, has been scrutinised on behalf of the caveator, and the learned Judge has pronounced the Will to be a forgery. Under these circumstances, if the parties were now allowed to compromise the matter, the result, in substance, would be the same as the grant of probate in the first instance by consent of parties. The learned Vakil for the appellants has, however, suggested that the effect of the appeal preferred to this Court is to re-opan the matter in controversy, and to restore the parties precisely to the position which they occupied in the Court of first instance before the investigation was made. In our opinion, this contention is manifestly unsound. It may be conceded that, when an appeal has been preferred, the matter ceases to be res judicata and becomes res sub judice; in other words, till the final order has been made by the Court of appeal, either in affirmance or reversal of the decision of the Original Court, there1 is no decree which operates as a judgment in rem under Section 41 of the Indian Evidence Act. It does not follow, however, that it is open to the parties to compromise the matter in controversy, and to make it obligatory upon this Court to restore the probate by their consent although such probate has been revoked by a competent Court on the ground that the Will was a forgery. In our opinion, there is no room for controversy that, when probate has actually been revoked by a Court of first instance on the ground that the Will propounded is a forgery, the parties are not entitled to bring the matter on appeal to this Court and then by compromise to obtain a reversal of the decision and a revival of the probate without any adjudication on the merits. Such a compromise cannot be regarded as lawful within the meaning of Order XXITI, Rule 3, of the Code of 1908. The action of a Probate Court of competent jurisdiction, when it admits a Will to probate or rejects it as not duly attested and executed, is in the nature of a proceeding in rem and so long as the order remains in force, it is conclusive as to the due execution and the validity of the Will, not only upon all the parties who may be before the Court, but also upon all other persons whatever, in ail proceedings arising out of the Will or claims under or connected therewith. All judgments of this character should be founded upon an investigation of the facts by the Court itself and ought not to be based upon consent of parties. There is, in our opinion, no difference in principle whether the compromise is attempted for the grant of the probate in the original Court during the pendency of the proceedings there or whether it is attempted in a Court of appeal during the pendency of an appeal against a judgment by which the Will has been pronounced to be a forgery. The essence of the matter is that the question in controversy affects not merely the parties before the Court, but also others who are bound by the decree though not represented before the Court. Reference may, in this connection, be made to the decision of the House of Lords in the case of Jenkins v. Robertson (1867) L.R. 2 Sc. & Div. 117. There a suit was brought, called an action of declarator, to establish a public right of way. The result of the action would bind not merely the parties before the Court, but also members of the public who might have an interest in the alleged way. The suit was compromised between the parties, with the result that another member of the public commenced an action for the same purpose. The question was raised, whether the previous decision operated as a bar. It was ruled by the House of Lords that such a transaction could not be treated really as res judicata. The Court had not exercised its judicial mind, and had not come to the conclusion that one side was right and the other side was wrong. Whatever, therefore, th e effect of the decision might be as between the immediate parties to the suit, it could not, in any manner, affect the rights of parties who were strangers to the proceedings; in other words, by reason of the compromise, the Court had been prevented from coming to a decision of a contested matter after argument and considerations, and consequently, the decree had not acquired the character of a judgment in rem. It is obvious, therefore, that, if we were to uphold, in the case before us, the contention of the appellants, the restoration of the probate by consent of parties would not impress upon the adjudication the incidents of a judgment in rem; in other words, although the appellant might, as the result of the compromise, assert successfully against the respondent that the mortgage in their favour was granted by an executor, they could not rely upon the Will in the event of a possible contest with any other person. It is manifest that a Court ought not to lend itself to the grant of a probate from which a result of this description might possibly follow. We must consequently overrule the contention of the learned Vakil for the appellants that the compromise is lawful within the meaning of Order XXIII, Rule 3, and that it is obligatory upon the Court to give effect to its terms.

3. We have next to examine the contention advanced on behalf of the respondent as to the precise effect of Order XXIII, Rule 1, Clause (1). That Clause provides that, at any time after the institution of a suit, the plaintiff may, as against all or any of the defendants, withdraw his suit, or abandon part of his claim. The contention on behalf of the petitioner-respondent, in substance, is that the proceeding for revocation is a suit within the meaning of this rule; that it is competent to her under this Rule, read with Section 107, Sub-section (2), to withdraw the proceeding even at the appellate stage, and that, therefore, it is open to her, by recourse to this method, to obtain a revival of probate which has been re-called on the ground that the Will was a forgery. In our opinion, this contention is entirely unsustainable1. In the first place, as we have already pointed out, a proceeding for a revocation of probate is not a suit within the meaning of Order XXIII, Rule 1. In the second place, even if it were treated as a suit, the effect of Section 107, Sub-section (2), would ordinarily be to entitle the appellants to withdraw their appeal here, just as the petitioner might have withdrawn his suit in the Court of first instance. It is not necessary, however, in our opinion, to examine this argument minutely, because it is obvious that, under section 141, the code is to be applied to proceedings for revocation of probate only in so far as the procedure can be made applicable. We feel no hesitation in holding that after a petitioner has instituted proceedings in the Court of first instance for revocation of a probate on the ground that the Will was a forgery, and such proceedings have terminated in his favour, it is not competent to him, in an appeal preferred by the executor or by any other party who has appeared in support of the Will, to withdraw the entire proceedings, and thus compel the Court to revive the grant of probate of a Will which has been pronounced by a Court of competent jurisdiction to be a forgery. When regard is had to the far-reaching effect of a grant of a probate, it is impossible to hold that a party, who has successfully proved that a Will is a forgery, should be at liberty to withdraw the proceedings at his option and compel the Court to recognise as genuine the instrument, while he deprives the Court of opportunity to investigate the matter on the merits. If the contrary view were maintained, the result would be a direct encouragement of fraud, and in every instance, when a Will has been proved to be a forgery, and a probate has been revoked, possibly followed by Criminal proceedings, peace may be purchased by the persons who have committed the fraud if they can make it worth the while of caveator to drop the proceedings which he had commenced and carried on to a successful termination in the original Court. We are not prepared to apply Order XXIII, Rule 1, Sub-rule (1) to cases of this character. That Rule, it maybe pointed out, was introduced for the first time in the Code of 1908, and we are unable to hold that the Legislature could ever have intended to apply it to cases of the description now before us. In any event, the language of Section 141 does, in our opinion, enable the Court to frustrate the object which the parties to the compromise before us have in view. We must consequently. hold that the petition of cam-promise, which has been jointly put forward by the intervenors-appellants and the petitioner-respondent and supported by them on different grounds, ought not to be granted. The application, therefore, is refused.

4. We have next to deal with the application of the representative of the Guhas to be made a party respondent to the appeal. On this application, a Rule was issued, which has been opposed by the appellants, for the obvious reason that the grant of the application may stand in the way of any passible settlement, collusive or otherwise, between the intervenors-appellants and the petitioner-respondent. The latter, however, has not opposed the Rule nor has there been any appearance on behalf of the executor.

5. The learned Vakil for the appellants has opposed the application on a two-fold ground, namely, first, that it is not competent to this Court to grant the application either under Order XXII, Rule 10, or under Order XLI, Rule 21, of the Code of 1908, and in this matter, the provisions of the Code ought to be deemed exhaustive; and secondly, that, whatever the result of the appeal might be, the applicant is not likely to be prejudiced, so that, even if the Court has jurisdiction to make him a party, he ought not to be allowed to intervene. In answer to the first of these contentions, it has been argued by the learned Vakil, who has appeared in support of the Rule, that Order I, Rule 10, Sub-rule (2), read with Section 107, Sub-section (2), furnishes sufficient authority for the Court to add the petitioner as a party-respondent to the appeal. In support of this position, reliance has been placed upon the case of Gyanananda v. Kristo Chandra 8 C.W.N. 404. In answer to the second contention, it has been urged that the petitioner might have intervened in the Court below, and would have done so, if he had had any suspicion that the proceedings for revocation of the probate might be terminated without adjudication by reason of collusion between the parties; and that, as in the events which have transpired, there is obviously danger of such a collusive settlement, he ought to be heard in support of the order of the Court below and should not be driven to an independent proceeding for revocation to which recourse would be inevitable, if the present application were refused. In our opinion, the proper order to make is to add the petitioner as a party respondent to appeal, and to allow him an opportunity, if necessary, to support the order of the Court below for revocation of probate. We feel no doubt whatever that this Court has ample power to make an order of this description nor is there any room for doubt that the circumstances of the present case fully justify the order we are about to make. It may be conceded, as was observed by their Lordships of the Judicial Committee in the case of Gokal Mander v. Pudmanund Singh 29 C. 707 : 4 Bom. L.R. 793 : 6 C.W.N. : 29 I.A. 186, the essence of a Code is to be exhaustive on the matters in respect of which it declares the law, and it is not the province of a Judge to disregard or go outside the letter of the enactment according to its true construction .It is also clear that Order XXII, Rule 10, is expressly limited to cases of an assignment, creation, or devolution of any interest during the pendency of a suit, and is consequently of no assistance to the petitioner, whose interest accrued not merely before the appeal was lodged in this Court, but also before the proceedings for revocation of probate were commenced in the Court below.

6. It is equally obvious that Order XLI, Rule 20, is inapplicable, and it authorizes a Court of Appeal to add as a party to the appeal, only a person who has been a party to the suit in the original Court. We are unable, however, to uphold the contention of the learned Vakil for the appellants that these two rules are exhaustive, and that it is not competent to the Court of Appeal to add as a party respondent a person who was not a party to the suit in the original Court. In our opinion, the Court has inherent power to make an order of this description apart from the provisions of Order I, Rule 10, Sub-rule (2), read with Section 107, Sub-section (2) of the Code. No doubt the Legislature has made provisions for specific cases but it does not follow by any means that the Court is powerless to deal with other cases which do not fall within the strict letter of the law. The action of a Court in such a contingency must be regulated upon sound general principles, one of which undoubtedly is that litigation should be shortened as far as is practicable. The Court, no doubt, is bound to take care that the order which it makes in the exercise of its inherent power, does not unfairly prejudice the position of any of the parties. But where an order is needed in the obvious interests of justice to enable the Court to adjudicate upon the rights of the parties effectively, there is no intelligible reason why the Court should hold its hand. This was, in substance, the view taken in the case of Gyanananda v. Kristo Chandra 8 C.W.N. 404. No doubt, as an ordinary rule, a person, who was not a party to the suit in the Court of first instance, ought not to be allowed to intervene at the appellate stage; but there are well-recognised exceptions. In the case to which reference has been made, the Court allowed a person to be made a respondent so as to enable him to support the order of the Court below for the removal of the mohunt of a public religious endowment, who had made an attempt to effect a compromise with a view to nullify the decree of the original Court. A similar principle has been recognised in other systems of jurisprudence, and the power has been exercised as inherent in the Court and needed to effectuate the ends of justice. Thus, although it was pointed out, in Borgalthons v. Farmers Insurance Co. 36 Iowa 251 and United States v. Patterson (1857) 15 Howard 10 : 14 Law Ed. 578, that a person who might have intervened in the Court below, but has not done SD and has not appeared in any capacity in the proceedings there, ought not, ordinarily, to be allowed to intervene in the appeal, it was ruled in Parker v. State (1892) 132 Ind. 420 : 31 N.E. 1114, that where the determination of the appeal may likely affect the interest of those not parties, it is proper for the appellate Court to allow them to intervene and be heard. A similar course was adopted in Honiford v. City of Kansas (1891) 103 Missouri 180 : 15 S.W. 753 and Miller v. City of Socorro 9 New Mexico 416 : 54 Pacific 756; it was pointed out in these two cases, in which the matter in controversy related to public rights, that the essence of the matter was that the decision of the Court might affect parties not represented before it; and that if the application were refused, they might either be prejudiced or protracted litigation might result at their instance. It may be conceded that the intervention or addition of new parties in appeal ought not, by any means, to be allowed as a matter of course; bat the power is undoubtedly vested in the Court, though it ought to be exercised with caution. We must, therefore, overrule the first objection of the learned Vakil for the appellants. In so far as the second contention of the appellants is concerned, it resolves itself into the position that the petitioner is not likely to be prejudiced even if he is not allowed to intervene in the appeal and his application should, therefore, be refused. It has not been disputed that, under the Rule of English Law, as laid down in the cases of Newell v. Weeks (1814) 2 Phillimore 224; Wytcherley v. Andrews (1871) I.R. 2 P. & D. 327 : 40 L.J.P. 57 : 25 L.T. 134 : 19 W.R. 1015; Young v. Holloway (1895) P. 87 : 64 L.J.P. 55 : 11 R. 596 : 72 L.T. 118 : 43 W.R. 429, a person who is not a party to proceedings in the probate Court, in which the validity of a Will is questioned, is bound by the result if he was aware of the proceedings and had a right to intervene Kurrutulain Bahadur v. Nuzbat-ud-dowla 32 I.A. 244 : 33 C. 116 : 1 C.L.J. 594 : 9 C.W.N. 988 : 2 A.L.J. 758 : 15 M.L.J. 336 : 7 Bom. L.R. 876, In re Pitamber 5 B. 638. From this point of view, the petitioner would be prejudiced if he was not allowed to intervene; but it was suggested by the learned Vakil for the appellants that a different rule ought to be recognized by the Courts of this country, as is indicated by the cases of Mohunt Das v. Nil Kamul 4 C.W.N. 283, Joy Chandra v. Sreenath 32 C. 357 : 1 C.L.J. 23, Lilabati, v. Bishun Chobey 6 C.L.J. 621. It may, however, well be a matter for controversy whether the doctrine recognized in these cases,--namely, that the mere circumstance that a stranger has promoted litigation or assisted in a suit, does not make him bound by the judgment,--should on principle be applied to probate proceedings, where a citation is issued to all persons interested, to appear and see the proceedings. At any rule, it is obvious that, if the petitioner were not allowed to intervene, he would be driven to have recourse to a separate proceeding for revocation of probate, and this, in our opinion, he ought not to be compelled to do. It has also been suggested that the appellants may not be affected one way or the other by the grant or revocation of the probate, and reference has been made in this connection to the decision of the Judicial Committee in Debendra Nath Dutt v. Administrator-General of Bengal 35 I.A. 109 : 12 C.W.N. 802 (P.C.) : 18 M.L.J. 367 : 10 Bom. L.R. 648 : 8 C.L.J. 94 : 35 C. 955. The view indicated there as to the position of a transferee from an executor, whose probate is subsequently revoked, is, it may be observed, different from that adopted in the cases of Gopal Das v. Budree Das 33 C. 657 : 10 C.W.N. 662, Debendra Nath v. Banku Behary 33 C. 713 : 3 C.L.J. 422 (F.B.) : 10 C.W.N. 673, Pundit Pragraj v. Goukaran 6 C.W.N. 787 and Ellis v. Ellis (1905) 1 Ch. 613 : 74 L.J. Ch. 296 : 92 L.T. 724 : 53 W.R. 617. From this point of view, it has been suggested that the petitioner is not likely to gain substantially by his intervention. It has further been suggested that the petitioner himself is not likely to be prejudiced if he is not allowed to intervene, as his title may not be affected whether the probate is maintained or re-called. It is manifestly impossible for us to express any final opinion upon these questions which relate to the relative rights of the parties, as they may, very likely, form the object of controversy in a different litigation properly framed for the purpose. But one view of the matter is beyond controversy. Whatever the ultimate decision of the Court may be as to the effect on the position of the appellant or of the petitioner by the revocation of the probate, it is clear that, if the present application is not allowed, the petitioner will be compelled to have recourse to an independent proceeding for revocation; this is obviously not desirable, and he ought to be allowed an opportunity to support the order of the Court below. The reason, assigned by him for non-intervention in the Court below, is well-founded on the facts, and but for the possibility of a collusive settlement between the parties to the appeal, it would have bean needless for him to intervene. We must accordingly direct him to be made a party respondent to the appeal.

7. The result, therefore, is that the joint application for compromise is refused and the Rule is made absolute. There will be no order as to costs. The appeal must now be heard on the merits.