The Judgment of the Court was as follows:—
The Plaintiffs in this suit are the daughters and the principal Defendant is the son of one Mahomed Aslam Khalifa deceased. Mahomed Aslam Khalifa died on 3rd Kartic 1314 leaving a Will, dated 1st Kartic of that year. Probate of this Will was taken out by his son, the Defendant, who is the Appellant before us. The principal terms of the Will were that this Defendant was appointed the sole executor and was to be in possession and to manage the whole of the property left by his father, the net income of the property after deducting Rs. 6 per month to be paid to the manager was to be divided amongst all the heirs according to their legal shares and none of the heirs were allowed to transfer any part of the property in any way, nor was the property to be liable for their debt. The executor was to keep accounts and to render them to Court and if the executor died his sons were to be made executors. The Appellant took out probate of this Will as executor and has been in possession of the property since the date of probate. The Plaintiffs brought this suit for a declaration that the Will was invalid under Mahomedan law mainly on the ground that consent of the heirs had not been taken. They also prayed for recovery of possession of their share of the property and, thirdly, for accounts. They have obtained a decree declaring the Will invalid and inoperative and also a preliminary decree for accounts. They have been told that they are not entitled to recover possession of their share in the property until probate has been cancelled in the Court of the District Judge.
The first point taken before us is that this suit is not maintainable in an ordinary Civil Court and that a suit ought to have been brought for revocation of the Will in a Probate Court. It appears to us that, on the plea as taken, it was a matter for the jurisdiction of the Civil Court and not of the Probate Court. This is not a suit for revocation of probate but for a declaration as to the effect of the terms of the Will assuming the grant of probate to be valid. The probate could not be revoked by the Probate Court on the ground that the terms of the Will were contrary to the provisions of the Mahomedan law since this is not one of the just causes set out in the explanations to sec. 50 of the Probate and Administration Act. Our attention has been drawn to the rulings of this Court in the case of Komol Lochun Dutt v. Nilruttun Mundle (1) and In the matter of petition of Bhobosoondari Dabee (2). Those cases show that when probate has been granted, the Civil Court cannot set aside the grant on the ground that it has been wrongly granted. But they have no application to the facts of the present case. It is for the Probate Court to determine whether the Will has been duly executed and it is for the Civil Courts to determine what effect is to be given to the Will after probate has been granted. In the present case it has not been disputed that good grounds exist for holding that the Will is opposed to the provisions of the Mahomedan law.
An objection has been taken that no distinct issue was framed as to the question whether the other heirs assented which was the main ground on which the first Court held the Will to be invalid. The sixth issue contains really several issues, one of which is—“Are the terms and direction of the Will void according to law? If so, are they binding against the Plaintiffs”? But though no distinct issue was framed as to the question of assent, it is clear from the pleadings that this was recognised as one of the main issues between the parties. In para. 5 of the plaint it is clearly stated that the Plaintiffs never agreed to the terms of the said Will; and in para. 13 of the written statement this allegation is expressly denied. Prom the judgments it seems no doubt that the parties recognised that this was one of the issues in the case. The Will was also held invalid on the ground that the provision in it that the properties will ever remain in possession of Defendant No. 1 to the exclusion of other heirs is against the rule of inheritance according to Mahomedan law; and before the lower Appellate Court the learned Pleader for the Appellant admitted that the provision forbidding all transfer of the property was invalid. It is clear, therefore, that the provisions of the Will are contrary to Mahomedan law and cannot be given effect to.
The only serious objection that can be taken to the form of the decree is that there is some authority for holding that Civil Courts cannot question the validity of the Will of which probate has been granted though effect may not be given to its provisions. We think, therefore, a slight alteration should be made in the decree and the words in the decree declaring that the Will is invalid and inoperative should be struck out and that the declaration should be “that the Will left by Mahomed Aslam does not affect the right of the Plaintiffs to their shares of the property left by Mahomed Aslam.”
The last point taken is that the Defendant should not have been held liable to render accounts as he has already rendered accounts under sec. 90 of the Probate and Administration Act. It appears that the Will, as so often happens with Wills in this country, uses the word “executor” in a double sense. It appoints the present Defendant executor to the Will but by its terms, it also appoints him a trustee of the property after the work of the executor has been finished. The accounts submitted to the Probate Court were presumably accounts rendered by the Defendant as executor only and the rendering of such accounts does not exonerate him from the liability to render accounts showing how he has dealt with the property of his co-sharers of which he is in possession as trustee.
With the slight, modification mentioned above, the decrees of the lower Courts are affirmed and this appeal dismissed with costs.
N.G