The Judgment of the Court was as follows:

1. Kabiraj Haran Chandra Chakravarty (hereinafter called the Kabiraj), a leading medical practitioner, died in Calcutta on the 29th May, 1935, at the ripe old age of eighty-six years. He started practice as a Kabiraj in the District of Rajshahi, but in the last part of his life set up practice in Calcutta, where he came in 1924. He had married twice. By his first wife he had a son, named Suresh and by his second wife he had five sons, Ramesh, Jagadish (nicknamed Pacha), Gobinda, Narayan (nicknamed Bhola) and Sachindra (nick-named Kata) and two daughters Basanta Kumari and Hem Nalini (nick-named Natai). Both his wives predeceased him but his sons and daughters survived him. The eldest son of Suresh is named Upendra, whose nickname is Bahadur.

2. On the 23rd October, 1931, he is said to have executed a Will at Rajshahi. That Will was registered at Calcutta on the 26th April, 1932. By the said Will his son Jagadish, his grandson Upendra and a friend of his Durga Kanta Mazumdar were appointed executors. The Will provided for a legacy of Rs. 1,500 to each of his daughters, an allowance of Rs. 5 per month on certain contingencies to his brother's widow, Kiran Bala Debi, and Rs. 4,000. for the marriage expenses of each of the three daughters of Ramesh. A provision was made for the worship of his ancestral deity Lakshmi Janardan Jews. The Will recited that the testator had a mind to execute a deed of dedication (Arpannama) in favour of a deity Anandamoyee, which he himself had consecrated, but in case he died before executing the Arpannama, some immovable properties which he had purchased in the name of the said deity and other items of immovable property which he mentioned in the schedule attached to the Will were to be considered as debutter property of the said idol and his four sons Suresh, Jagadish, Narayan and Sachindra were to be shebaits. After providing for specific legacies for his sons, Jagadish, Narayan and Sachindra he made four of his sons, Suresh, Jagadish, Narayan and Sachindra residuary legatees in equal shares. Nothing was given to his sons Ramesh and Gobinda. On the 25th May, 1933, he executed an Arpannama dedicating one item of zemin-dary property to the idol Anandamoyee (Exhibit 61). In that Arpannama he made a statement that he had already made a gift to the idol of the sum of Rs. 1,50,000 which he had lent to Kumar Naresh Narayan Roy of Putia, and a further sum of Rs. 25,000 which he had lent to Jnanada Prasanna Bhadury and others of Porjana and that with another sum of money which he had given to the said deity he had purchased in the deity's name a zemindary which formerly belonged to Bhupendra Chandra Mani. Four days later, that is, on the 29th March, 1933, he executed another deed (Exhibit 74) by which he declared that he was a trustee for that deity for the said sums of Rs. 1,50,000 and Rs. 25,000 lent to Kumar Naresh Narayan Roy and Jnanada Prasanna Bhadury and others, respectively. By the Arpannama he nominated three of his sons, Suresh, Jagadish and Narayan to be shebaits after him. Shortly before his death, on the 2nd January, 1935, he executed a trust deed (Exhibit 62) by which he transferred a zemindary in the District of Nadia to himself and four other persons as trustees for the purpose of establishing and maintaining an Ayurvedic College, a charitable dispensary and a hospital in Rampur Boalia in the District of Rajshahi. Only one of his sons, namely, Jagadish was made a co-trustee.

3. The assets of the Kabiraj at the time of his death consisted of house property in Rajshahi, zemindary property, a large amount of cash deposited in several Banks and monies lent out on promissory notes and mortgages. Three of the promissory notes which were originally in his name were shortly before his death assigned by him to, and then renewed later on in the names of different members of his family, namely one for Rs. 30,000 in the name of his daughter-in law Ushamoyee, the wife of Jagadish, another for Rs. 30,000 in the name of his jgrandson Upendra and the third for Rs. 20,000 in the name of his son Narayan. The debtor was Kumar Naresh Narayan Roy. Another promissory note of Rs. 4,700 which stood in his name was renewed by the debtor Ramani Mohan Choudhury on the 20th October, 1934, after the Arpannama, in his name as shebait of the idol Anandamoyee. Shortly after the Arpannama he lent on the 7th July, 1933, Rs. 75,000 to Brojendra Mohan Maitra and Gopikula Mohan Maitra. The promissory note (Exhibit 94) for that amount, was taken by him as shebait of the said idol and another promissory note for Rs. 21,265 was also taken in a similar manner. The last-mentioned promissory note was executed by Kumar Naresh Narayan Roy for arrears of interest due on the three promissory notes for Rs. 30,000, Rs. 30,000 and Rs. 20,000 which were assigned to and then renewed in the names of Upendra, Usha-moyee and Narayan.

4. It appears from the evidence that the Kabiraj was not happy in his relations with his children. His sons, daughters, and his grandson Upendra were not on good terms with each other. Many of the sons and his grandson, Upendra, were designing persons and the behaviour of some of them and of his daughter Basanta Kumari towards their father was not proper. All of them, except perhaps Romesh, were shrewd men and all of them were fully alive to their self-interest.

5. Shortly after the death of the Kabiraj they fell out. They arranged themselves into two rival groups Jagadish. Upendra and Suresh forming one group and Gobinda, Raraesh, Saehin and Narain another group. Of the last group Gobinda was the leader.

6. By the end of June, 1935, Upendra's brother Nripendra filed a complaint against Gobinda and Romesh in the Court of the Presidency Magistrate at Calcutta charging them with theft of papers and account books of his grandfather. He obtained an ex parte order from the Magistrate by which his uncles were to be warned by the Police. Immediately thereafter Ramesh and Gobinda appeared before the Magistrate and denied the charges levelled against them, with the result that the Magistrate recalled his order. By the end of June, 1935, Jagadish and Upendra left for Rajshahi with the evident object of filing an application for probate of their father's aforesaid Will and for filing applications for mutation of the deity Anandamoyee's name before the Collector. Gobinda had already sent Romesh to Rajshahi to watch their movements and had engaged a pleader of Rajshahi named Mr. Amulya Mohan Sanyal, to get copies of relevant documents from the Registration office. On the 6th July, 1935, the executors, Upendra, Jagadish and Durga Kanta Mazumdar filed the application for probate in the Court of the District Judge at Rajshahi. That application was numbered Probate Case No. 13 of 1935. Suresh and Jagadish filed on the 25th June, 1935, two applications before the Collector of Rajshahi for mutation of their names as shebaits of the deity Anandamoyee in respect of Tauzi Nos. 84 and 424 in the place of the Kabiraj. Gobinda, the life and soul of the other group, was not however idle at Calcutta. He kept himself in touch with lawyers at Calcutta, one of them being his cousin, Mr. Nirmal Chandra Chakravarty (mentioned as Nimudada in the evidence), an Advocate practising in this Court. He had anticipated what his opponents would do and had thought out his line of action with the object of putting an effective check on their activities. He indicated-his plan in three letters—Exhibit 67 and Exhibit 67(g) both dated the 3rd July, 1935, and Exhibit 67(f) dated the 6th July, 1935, which he wrote to his brother Romesh. A suit was to be filed in the Original Side of the High Court, in which an attempt was to be made to have a receiver appointed and a complaint was to be filed in the Police Court at Calcutta with a view to get the houses of his late father and of Durga Kanta Mbzumdar and another searched all of a sudden and without notice. The object of the search was to find out if his father had left a later Will. Mr. Nirmal Chandra Chakravarty was against the proposal of filing a suit in the Original Side of this Court as that would involve large expenditure. It seems that the advice given by him ultimately prevailed. In accordance with his plan and with the object, as he states in his letter Exhibit 67 of checking the activities of his opponents, he had a complaint (Exhibit 34) filed on Saturday the 13th July, 1935, by his brother Sachindra in the Police Court at Calcutta against Upendra, Jagadish, Suresh, Durga Kanta Mozumdar and Nripendra, the second son of Suresh, charging them with offences under secs. 477, 477A, 403, 404, 424 and 120B of the Indian Penal Code. The Magistrate examined the complainant on the same day, ordered the issue of a search warrant and directed the Police of the C. Division of Calcutta to enquire and report on the allegations made in the petition of complaint by the 20th July, 1935. Upendra, who was closely watching the movements of Gobinda's group however appeared before the Magistrate on Monday following through a pleader Mr. Bhowmick, who ordinarily practised in the Police Court and whom he had already engaged to watch, before the search warrants could be issued, and filed an application (Exhibit 35). The Magistrate recalled his order for the issue of a search warrant and directed that application to be put on the 20th July, 1935, “with papers” —that is to say, with the Police report. Gobinda thus lost the first round, for his attempt to have the house of his late father and the house of Durga Kanta Mozumdar searched was frustrated. The Police report (Exhibit 14) submitted on the 3rd August, 1935, was adverse to the complainant and on the 10th August, 1935, Sachindra the complainant, filed a naraji petition (Exhibit 38) against that report.

7. It appears that in the meantime well-wishers of the family had intervened and were trying to bring about a settlement between the descendants of the Kabiraj. One of such persons was Kabiraj Jyotish Chandra Saraswati, for brevity's sake called Jyotish Kabiraj, who resided and practised at Rajshahi. He was formerly a pupil of the Kabiraj and had some hold on his sons and grandsons. He got himself in touch with the parties and proposed certain terms which according to his opinion would be fair to all. Those terms he communicated to Gobinda by a letter written by him on the 11th August, 1935, from Rajshahi (Exhibit Z30). About this time he had also prepared at Rajshahi schedules of properties that he proposed to allot to the parties. His idea was that if the parties did not accept the terms suggested by him, they may at least serve the basis of negotiations. At Rajshahi he was very successful, for he induced the parties to settle their differences on the broad lines of his scheme. There were only differences between them in matters of detail. With a view to settle those differences of detail he started from Rajshahi for Calcutta on the 24th August, 1935, accompanied by Bimala Babu (Gobinda's pleader), Annada, the son of Durga Kanta Mozumdar, and Jagadish (Pacha) [Exhibit 22(c)], and reached Calcutta on the following day. The other sons of the Kabiraj and his grandson Upendra were then in Calcutta. The evidence is that a leading Advocate of this Court, Mr. Hira-lal Chakravarty, was consulted as to the form of the deed and then Bimala Babu began to draft the document. Jyotish Kabiraj stayed in Calcutta for a few days-three or four days at the most. During his short stay at Calcutta, considerable progress towards the settlement was made. This is apparent from two letters—one written by Gobinda on the 26th August to his pleader at Rajshahi, Mr. Amulya Mohan Sanyal, in which he said that the chances of compromise were hopeful [Exhibit 20(a)], and the other written by Upendra on the 25th August, 1935, to Durga Kanta Mozumdar (Exhibit Z172). The date as given in the last letter may be wrong, but it is certain that it was posted in Calcutta on the 25th August, 1935, after the arrival of Jyotish Kabiraj. The post office seal shows that date. Jyotish Kabiraj was back in Rajshahi at least on the 29th August, 1935 [Exhibit 22(d)]. Hs must have started back from Calcutta either on the 27th or 28th August at the latest. Bimala Babu, pleader, remained in Calcutta for a few days more but had to go back to Rajshahi on hearing of his son's illness. One of the important questions in the case is whether all the terms of compromise had been settled between the parties through the intervention of Jyotish Kabiraj on or before the 28th August, 1935, or whether some differences still remained when Jyotish Kabiraj started back for Rajshahi, either on the 27th or 28th August, 1935. On the 28th August, an application for withdrawing the criminal case pending in the Police Court was made by the complainant, Sachindra, whereupon the complaint was dismissed by the Magistrate under sec. 203 of the Criminal Procedure Code (Exhibit 40 and Exhibit 19). Bimala Babu and Jyotish Kabiraj again came back to Calcutta in the early part of September, 1935. On the 9th September the parties—all the sons and daughters of the Kabiraj, his grandson Upendra and Durga Kanta Mozumdar approved the draft of the family settlement and signed the draft (Exhibit Z156). The deed was executed by all the aforesaid persons on the 20th September and was registered on the 23rd September, 1935.’ The deed, called the deed of family settlement, is Exhibit K. By the deed the Will was ignored and parties proceeded upon the footing that the Kabiraj had died intestate. The probate case which was then pending (Probate Case No. 13 of 1935) in the District Judge's Court at Rajshahi was to be withdrawn and none of the executants of the documents were to apply in future for probate of that Will or any other Will that maybe set up as being executed by the Kabiraj. The properties— movables, promissory notes, mortgages and immovable properties—were distributed in ten Schedules— ga to the Schedule ga was allotted to Suresh, gha to Ramesh, Uma to Jagadish, cha to Gobinda, chha to Narayan, ja to Sachindra, jha to Upendra, yna to Basantha Kumari, ta to Hemnalini and tha to Kiran-bala. The executants admitted the validity of the Arpannama in favour of the deity Anandamoyee and the deed of Trust executed by Kabiraj for the establishment of a college, charitable dispensary and hospital.

8. After the deed was executed Ramesh, Jagadish, Gobinda and Sachindra took out succession certificates in respect of those debts which had been allotted to them respectively by the deed of family settlement without any opposition from their other brothers and from their nephew Upendra. Basanta Kumari opposed them but ultimately withdrew her opposition on the assurance that her application for succession certificate would not be opposed by them. Narayan also applied for succession certificate but withdrew that application on the 10th July, 1936. Two days before the withdrawal that is on the 8th July, 1936, Basanta Kumari applied for letters of administration with a copy of her father's Will, the self-same Will that formed the subject-matter of Probate Case No. 13 of 1935. She had a small interest, for by that Will she was to get a legacy of Rs. 1,500 only and that sum had been secured to her by the deed of family settlement. We have no doubt in our mind that she was a tool in Narayan's hand and that Narayan had set her up. About six weeks later Narayan came out in the open and applied for letters of administration with a copy of that Will annexed. His whole object was to nullify the deed of family settlement. On those two applications special citations were issued on the three executors, Upendra, Jagadish and Durga Kanta Mazumdar. The last two ultimately had to express willingness to take out probate and all the three applied for the grant, in the probate proceedings before the learned District Judge the question of the validity and effect of the deed of family settlement was raised but the learned District Judge did not go into those questions. By his judgment dated the 20th April, 1938, he found the Will set up to be the last Will of the Kabiraj and ordered the grant of probate to the said three executors, demanding from each of them security of the value of Rs. 25,000. Against this decision Gobinda has filed First Appeal No. 131 of 1938. His grounds are that (1) no probate ought to have been granted in view of paragraph 1 of the deed of family settlement and (2) that the said Will was not the last Will of his father.

9. The two executors, Jagadish and Durga Kanta, have preferred First Appeal No. 98 of 1938 from that judgment, and their grounds are

(i) that no probate ought to be granted in view of the said paragraph of the deed of family settlement;

(ii) that if probate of that Will is to be granted at all, the deed of family settlement ought to be made an annexure to the grant;

(iii) that no security from the executors ought to be taken; and

(iv) the applications for letters of administration made by Basanta Kumari and Narayan ought not to have been kept pending.

10. Upendra has filed First Appeal No. 157 of 1938 and his point is that no security ought to have been demanded from the executors.

11. After the said judgment of the learned District Judge was; pronounced Suresh, Narayan, Hem Nalini, Basanta Kumari, the deity, Anandamoyee, represented by Suresh and Narayan as shebaits, and the family deities Lakshmi Janardan Jews represented by their next friend Suresh filed on the 17th September, 1938, a suit against Ramesh, Gobinda, Sachindra, Jagadish, Upendra, Durga Kanta Mozumdar and Kironbala for setting aside the deed of family settlement and for restraining the Defendants from enjoying the properties left by the Kabiraj otherwise than under his probated Will. In that suit there was also a prayer for a declaration that certain properties (those described in Schedules A and C of the plaint) belonged to the said Kabiraj and certain others (those mentioned in Schedule B) belonged to the deity Anandamoyee. By his judgment dated the 17th June, 1940, the learned Subordinate Judge held that paragraph 1 of that deed was invalid in law, but the rest of the deed was valid and binding. He found some of the properties mentioned in the plaint to be the personal properties of Upendra and others, and that the Chauddapie house only belonged to the deity Anandamoyee but the rest belonged to the Kabiraj. Against this judgment and decree the Plaintiffs have filed First Appeal No. 176 of 1940. The Respondents Gobinda and Sachindra have filed a memorandum of cross-objections, wherein they state that the whole of this family settlement deed ought to be upheld, that it ought to be declared that the Chauddapie house does not belong to the deity Anandamoyee, that in any event no declaration of title in favour of that deity ought to be made in respect of that house and that the order for costs is wrong. Upendra has also filed a memorandum of cross-objections. All the aforesaid first appeals were listed together and were heard by us at the same hearing, but one after another.

12. We will first deal with First Appeal No. 176 of 1940 and the memorandum of cross-objections. This concerns chiefly, as we have already said, the deed of family settlement. This deed has been attacked by the Appellants on four grounds:

(1) that the consideration and or object was in part illegal—namely the stifling of the criminal prosecution started in the Police Court, Calcutta, by Shachindra,

(2) that there was no bond fide dispute to settle, as Gobinda's group at the time of compromise could not have believed and did not in fact believe that they had any case regarding the Will propounded and the Arpannama and deed of trust,

(3) that it was brought about by misrepresentation on the part of Gobinda and his group, and

(4) that the deed is bad as there was no bond fides on the part of Gobinda and his group.

13. The contesting Respondents support the conclusions of the learned Subordinate Judge on these points. They further contend that the terms of paragraph 1 of the deed are legal inasmuch as they do not offend any rule of public policy.

[Their Lordships on evidence held against the Appellants on all the four points and proceeded as follows.]

14. In agreement with the learned Subordinate Judge we hold that that deed is valid and fully binding on the parties thereto.

15. We do not, however, think that paragraph 1 of the deed is invalid. The learned Subordinate Judge has held that the provisions of that paragraph are illegal on grounds of public policy. We cannot agree with his views. In our judgment the position in law stands thus. That a Court exercising probate jurisdiction cannot grant or refuse probate of a Will by consent and without taking evidence is settled law. When a Will is actually put before such a Court, the parties to the proceedings cannot say to the Court, that the probate be granted without proof of the due execution of the Will or probate refused without any evidence being led. This principle is well established and has for its basis the fact that a probate or an order refusing probate operates as a judgment in rem. [Mohini Mohan Guha v. Banga Chandra Das(1) and Sarada Kanta Dass v. Gobinda Mohan Das(2)]. When a Will is put before the probate Court for proof, the parties before the Court can, however, enter into an agreement which changes the terms of the Will and say that probate be granted. The effect of such an agreement will be the withdrawal of the objections to the proof of the Will in consideration of the division of the estate in the manner agreed upon. In such a case the probate Court will have to take evidence about the Will and if it comes to the conclusion that the Will is valid must grant probate of the Will, as it stands and unmodified by the terms of the agreement but should make the agreement arrived at between the parties an annexure to the decree. The parties agreeing would be bound to regulate their rights inter se according to that agreement, and if any of them refuse, the others will be entitled to bring a suit against the party in breach [Kamal Kumari Devi v. Narendra Nath Mukherjee(3)] or may compel the executor to distribute the estate in accordance with that agreement by filing an application in the probate Court under sec. 302 of the Indian Succession Act, in cases in which that section applies. [Secretary of State for India in Council v. Sreemati Parijat Debi(4)]. In our judgment, the agreement should be made an annexure to the decree granting probate, whether it is arrived at before the probate proceedings are started or during the pendency thereof. In the case where the agreement is arrived at before the probate proceedings are started, all that the parties would have to do is to put in that agreement before the probate Court, and the probate Court should follow the procedure indicated above, provided that the agreement is not challenged before it by any party thereto. We cannot therefore accept the argument of the Appellant's Advocate that an agreement between persons interested in the estate of the testator relating to the devolution or distribution thereof in a manner different from that provided for in the Will can only be concluded after an application for probate is made, and would be invalid if it is made before such an application is filed. We find no principle on which that distinction can be made.

16. We must now consider the case where there is a bona fide dispute about the validity of a Will, either on the ground that it is not a genuine one, or the testator had no mental capacity or that it was not duly executed, or that it was revoked, at a stage before an application for probate has been made, and the interested parties, the legatees and those who would have got his estate on an intestacy, being doubtful about the success of their respective claims, but each side believing that he has a substantial case, agree not to apply for probate, in consideration of avoiding costs of litigation which may prove ruinous to the estate, and for the purpose of restoring peace.

17. We do not see any good reason for holding such an agreement to be bad as being against public policy. If there is a bond fide dispute between interested persons about the validity of a document of any other nature, say a deed of gift, there is no rule of law, no rule of public policy, which would render void an agreement between the parties arrived at by way of compromise that none of them would approach the Court for adjudicating upon the validity of that document and that they would divide the property included in the deed in a certain manner. The parties to that agreement would be bound by those terms. We do not see why an agreement of that nature, supported by good consideration, would be invalid on the ground of public policy if the subject-matter of the dispute be a Will. Sec. 28 of the Indian Contract Act does not in terms apply to such an agreement and we do not see how such a case can be brought under sec. 23 of the Indian Contract Act. It would not be affected by the first three heads of that section, nor by the fourth head, as we have held that such an agreement would not be opposed to public policy. In disagreement with the learned Subordinate Judge we hold that paragraph 1 of the deed of family settlement (Ex. K) is legal and binding on the parties thereto. Those parties are the three executors, and all the sons and daughters of the Kabiraj. The only persons who were given benefits under the Will and who had not joined in that deed were the unmarried daughters of Ramesh. They would not be bound by the terms of that deed and would be entitled to call upon the executors to apply for probate and on their failure to apply for letters of administration with a copy of the Will annexed.

18. The learned Advocate for the Appellant has, as a last resort, urged that paragraph 1 is not binding on the executors, as it was not competent to them to enter into such an agreement. In support of his contention he has relied upon the decision in the case of Jnanendra Nath Mukherjee v. Jitendra Nath Mukherjee(5). That case is distinguishable. There the validity of the Will was not in dispute. In fact the parties to the agreement for reference to arbitration proceeded upon the footing that the Will was valid. There was a dispute about its construction. The executors did not apply for probate and the parties were actuated with the object of evading probate duty. Instead of following the normal procedure of first obtaining probate and then applying to the Court for giving them directions after construing the Will, the executors and the legatees appointed arbitrators to construe the Will and to distribute the testator's estate among the beneficiaries. The referenda to arbitration was held to be invalid. We do not see how that decision helps the Appellant's Advocate. We do not see any good reason as to why an agreement by which the executors bind themselves not to apply for probate of a disputed will would be ineffective against them where the consideration and object of the agreement was to save the estate of the costs of a ruinous litigation over that matter. Executors have the power to renounce and such an agreement may be construed as an act of renunciation on their part, if they had not in the meantime accepted office. In the case before us it may be said that before the compromise as embodied in Exhibit K the executors had indicated their intention of accepting office and this intention they manifested by making an application for substitution in second Appeal No. 1591 of 1934 (Ex. 42) and by making the application for probate (Probate Case No. 13 of 1935). But an executor can in law renounce even after applying for probate but before the grant is actually issued [Mahamidu Mohi-deen Hadjiar v. Pitchey(6)]. There was accordingly nothing illegal in their allowing the applications for probate to be dismissed for default and agreeing not to apply again. Prayers (a), (b) and (d) of the plaint must therefore be refused.

[The portion of the judgment omitted dealt with evidence and facts of the case and is not material for the purpose of the report]

F.A Nos. 98, 131 and 157 of 1938.

19. We will deal now with the other first appeals which arise out of the probate proceedings. We have held paragraph 1 of the deed of family settlement to be valid. It was therefore not open to Basanta Kumari or Narain to apply to the Probate Court for proving the Will. At least two of the executors were not willing to take out probate, but were forced to apply. The agreement contained in the said paragraph is also binding on the executors. On this ground the applications for probate by the executors and the applications for letters of administration by Basanta Kumari and Narayan must be dismissed. It is therefore not necessary to decide the other points raised in these appeals, but we will record our findings on them giving reasons in brief.

C.C