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Uma Addhya v. Biren Mondal

Calcutta High Court

Apr 21, 2006

Judgment

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Concise Analytical Summary of the Opinion (Bhaskar Bhattacharya, J.; Pravendu Narayan Sinha, J. concurring)

Factual and Procedural Background

Probate in respect of a Will was originally granted in 1967. In 1986 the Probate Court revoked that grant after being satisfied that there was just cause for revocation. The propounder of the Will appealed against the revocation. While the appeal was pending, some of the heirs and the appellant effected a compromise dividing the properties among themselves in a manner different from the terms of the Will. The Division Bench of this Court accepted that compromise, set aside the Probate Court's order of revocation without deciding the merits of the revocation, directed that probate as per the original grant be issued with the compromise annexed, and ordered that the compromise be preserved with the original Will and treated as part of the appellate decree. The present application is a review of that Division Bench judgment and decree, brought by certain heirs who say they were not parties to the appeal and who challenge the making of the compromise part of the decree and the setting aside of the revocation without adjudication on the merits.

Legal Issues Presented

Whether an Appellate Court hearing an appeal against revocation of a grant of probate can set aside the revocation and make a compromise between some heirs part of the probate decree without adjudicating on the merits of the order of revocation.
Whether an application for review of such an appellate order is maintainable by persons who were not parties to the appeal but who are heirs/legal representatives with an interest in the probate (i.e., whether non-party heirs can be "aggrieved" and thus entitled to seek review).
Whether the settled practice of recording compromises in probate matters permits making such compromises part of the probate decree (as opposed to merely recording them for the parties' private enforcement).

Arguments of the Parties

Applicant's (Mr. Roy) Arguments

The Division Bench erred on the face of the decree by setting aside the Probate Court's revocation order on the basis of a compromise entered into by some heirs without deciding whether the revocation order was justified.
The Probate Court had revoked probate on sufficient cause; an appellate court may set aside revocation only if satisfied that the revocation was unjustified — the Division Bench did not reach such a conclusion.
Making the compromise part of the decree is improper; once the order of revocation is set aside the original probate revives, but that does not justify incorporating an agreement among some heirs into the probate decree.
The applicants, being heirs, cannot be bound by a compromise made by some other heirs and therefore seek review of the order that made that compromise part of the decree.

Respondent/Appellant's (Mr. Basu) Arguments

Compromise in probate matters is permissible under current jurisprudential trends; there is no absolute bar to compromise in probate proceedings.
The review application is not maintainable because the applicants were not parties to the appeal and hence cannot be "aggrieved" by the appellate order; they therefore lack locus to seek review.
Relied upon the Division Bench decision Bharat Singh v. Firm Sheo Pershad Giani Ram (AIR 1978 Delhi 122) to support the proposition that a non-party cannot file review as not being aggrieved.
Argued by reference to K. Venkata Seshaia v. Kanduru Ramasubbamma that compromises can be recognized by higher courts in appropriate circumstances (though the opinion explains limits to that reliance).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
A.E.G. Carapiet v. A.Y. Derderian — AIR 1961 Cal 559	Principle that compromises between heirs after grant of probate may be recorded in court records but should not be made part of the probate decree; such compromises are to be enforced by ordinary suit rather than by execution of probate.	The Court relied on this line of authority to conclude that the Division Bench erred in making the compromise part of the appellate decree and that accepted practice is to record compromises but not incorporate them into probate decrees.
C.S.T. v. Pine Chemicals Limited — (1995) 1 SCC 58 : 1995 AIR SCW 1718	Ground for review where a court passes an order overlooking a binding precedent and the decision is in conflict with principles laid down in that precedent — such oversight can constitute an error apparent on the face of the record.	The Court invoked this authority to justify recalling the Division Bench order on the ground of an error apparent on the face of the record, noting the Division Bench's decision conflicted with long-standing authorities (including A.E.G. Carapiet).
Bharat Singh v. Firm Sheo Pershad Giani Ram — AIR 1978 Delhi 122	Authority relied upon for the proposition that only a person "aggrieved" by an order (generally a party) can file for review; a non-party cannot maintain a review application.	The Court considered this decision but held it inapplicable to testamentary/probate jurisdiction because probate judgments are in rem (binding against the world) and third parties with interest may have locus to seek review.
K. Venkata Seshaia v. Kanduru Ramasubbamma — (1991) 3 SCC 338 : 1991 AIR SCW 808	Illustrates that in certain civil proceedings (including a special leave petition arising from a suit over immovable property) compromises may be accepted by superior courts where parties relinquish claims based on Wills and settle by compromise.	The Court treated this precedent as distinguishable and of no assistance to the respondent's contention: that case did not arise from probate/revocation proceedings and thus did not address whether an appellate Probate Court may set aside revocation solely on the basis of a compromise by some heirs.

Court's Reasoning and Analysis

The Court proceeded in a stepwise fashion:

It reproduced and examined the Division Bench's order, which recorded that (a) the Will had been probated in 1967, (b) revocation was obtained in 1986, (c) the appeal was from the revocation order, and (d) a compromise signed by the living parties and their advocates was accepted and recorded, with the appellate order setting aside revocation and directing probate be issued with the compromise annexed and preserved with the original Will.
The Court found the factual matrix: initial probate, revocation by the Probate Court on just cause, an appeal by the propounder, and a compromise among some heirs during the pendency of the appeal that deviated from the Will's terms and was made part of the appellate decree.
On substantive probate law, the Court reiterated settled principles: the Probate Court is a court of conscience whose role is limited to determining whether the Will is the testator's last Will, duly executed and attested, free from vitiating factors such as fraud, force or undue influence, and that the testator had capacity. A Probate Court cannot, beyond these questions, adjudicate title or grant probate inconsistent with the Will's terms.
The Court identified the prevailing practice in India: compromises between heirs after grant of probate may be recorded and kept with the records, but are not ordinarily made part of the probate decree; parties seeking enforcement of such compromises must sue in ordinary civil proceedings rather than rely on execution of probate.
The Court analysed the Division Bench's action: if the appellate court was satisfied that revocation was unwarranted it could set aside the revocation and thereby revive the original probate; however, in this case the Division Bench did not consider the merits of the revocation order and instead set it aside solely on the basis of a compromise arrived at among some heirs, and then incorporated that compromise into the decree. The Court held this procedure went beyond the appellate court's proper province in an appeal against revocation.
Applying C.S.T. v. Pine Chemicals Limited, the Court held that where a decision overlooks binding precedent and conflicts with established principles, it may amount to an error apparent on the face of the record justifying review. The Division Bench's decision was found to be at variance with the authorities (including A.E.G. Carapiet) and thus suffered such error.
On maintainability, the Court distinguished the Delhi decision relied upon by the respondent (that non-parties cannot be "aggrieved") on the basis that testamentary decisions are in rem and binding against the world; moreover, the Probate Court has power under Section 263 to revoke probate even suo motu and third parties may draw the Court's attention to just cause for revocation. Therefore, heirs who were not parties to the appeal may nonetheless have locus to move for review in such matters.
The Court considered and rejected the respondent's reliance on K. Venkata Seshaia as inapposite because that case involved a special leave petition in a property suit context and did not arise from probate/revocation proceedings; it therefore did not address whether a Probate Court may dispose of an appeal against revocation on the basis of a compromise among some heirs.
On that analysis the Court concluded there was an error apparent on the face of the Division Bench order and that the appropriate remedy was to recall that order and direct that the appeal be placed for hearing on merits.

Holding and Implications

Holding:

The application for review is allowed; the Division Bench order (which set aside revocation on the basis of a compromise and made that compromise part of the decree) is recalled on the ground of an error apparent on the face of the record.

Direct consequences and implications:

The matter is to be placed for hearing so that the appeal against the Probate Court's order of revocation can be considered on its merits (i.e., the appellate court must satisfy itself whether the revocation was justified rather than disposing of the appeal solely on the basis of a compromise among some heirs).
The prior practice noted by this Court — recording compromises in probate files but not incorporating them into probate decrees — is endorsed; the Division Bench's practice of making the compromise part of the appellate decree was held to be beyond its proper jurisdiction in an appeal against revocation.
The Court found that heirs who were not parties to the appeal may nonetheless maintain an application for review in probate matters because probate decisions are in rem and third parties with an interest may invoke the Court's power to examine errors apparent on the face of the record.
No costs were awarded in the review proceedings ("no order as to costs").

The opinion did not purport to lay down any controversial new legal doctrine; rather, it recalled a specific appellate order as being inconsistent with established probate practice and precedent and remitted the matter for adjudication on the merits.

Show all summary ...

Bhaskar Bhattacharya, J.:— This is an application for review of a judgment and decree passed by a Division Bench of this Court by which an appeal preferred against the revocation of grant of probate has been disposed of in terms of the compromise between the parties.

2. Mr. Roy, the learned Advocate appearing on behalf of the applicant, at the very outset, submits before us that there is an error apparent on the face of the decree sought to be reviewed herein, inasmuch as, an Appellate Court dealing with an appeal against revocation of the grant of probate cannot dispose of such an appeal and set aside the order of revocation on the basis of the compromise effected by some of the natural heirs of the testator. Mr. Roy submits that the learned trial Judge having revoked the grant of probate on sufficient cause and an appeal having been preferred against such order of revocation, the Appellate Court could set aside such order only on being satisfied that the order of revocation was unjustified. Mr. Roy draws attention of this Court to the fact that some of the heirs of the deceased testator made a compromise during the pendency of the appeal thereby deciding to divide the properties among themselves and on the basis of such compromise, the Division Bench disposed of the appeal after setting aside the order of revocation without entering into the merit of the appeal and the said agreement formed part of the decree. Mr. Roy further submits that once the Division Bench set aside the order of revocation, the original probate revived and even in such a case, there was no valid reason for passing the order in terms of compromise effected among some of the natural heirs of the testator. Mr. Roy further submits that his clients being admittedly heirs of deceased testator cannot be bound by the compromise arrived at among some of the heirs of the deceased. He, therefore, prays for review of the order.

3. Mr. Basu, the learned Advocate who appeared on behalf of the appellant before the Division Bench vehemently opposed the aforesaid contention of Mr. Roy and contended that according to the present trend in the field of jurisprudence, there is no bar in effecting compromise even in respect of probate proceedings. Mr. Basu contends that the present review application is not maintainable as the applicants were not parties to the appeal preferred against the order of revocation and as such, they cannot be said to be “aggrieved” by the order sought to be reviewed. In support of the question raised by him as to whether an application for review is maintainable at the instance of the persons who are not parties to the appeal in which the order sought to be reviewed is passed. Mr. Basu relies upon a Division Bench decision of the Delhi High Court in the case of Bharat Singh v. Firm Sheo Pershad Giani Ram, reported in AIR 1978 Delhi 122. Mr. Basu, thus, prays for dismissal of the present application for review.

4. Before we proceed to consider the questions involved in this application for review, it will be appropriate to quote the entire order passed by the Division Bench

“The compromise as tendered in the petition signed by all the parties at present alive and their Advocates is accepted on record and such compromise be recorded in this proceeding.

It appears that the Will was probated in 1967 but a revocation was obtained in 1986.

The appeal before us is from the order of revocation.

We are of the opinion that in probate matters, it is legal for the parties to adjust the Court proceeding amongst themselves, so that probate issues; however, such adjustment must not in any manner shock the conscience of the Court or leave any doubt in the Court's mind about the genuineness of the Will which is being probated by it.

Similar principles apply in the matter of adjustment of revocation.

We are satisfied that the Will having been probated nearly 33 years ago it will not serve any useful purpose for the parties to have a long drawn battle over the revocation matter, which will result merely in an attempt to prove the Will once again.

It is on record that the judicial conscience of the lower Court was once satisfied about the grant and that is quite enough to lend sufficient legality to this compromise.

The appeal is therefore allowed and the revocation order is set aside. However, it is clarified that the probate as per the initial grant will issue with a copy of the compromise annexed and in the records of the Court the compromise shall be similarly preserved along with the original Will itself.

The ladies who have married and changed their surnames from Mondal to Naskar will be permitted to file a separate affidavit showing their change of names and such affidavit shall be treated as part of the compromise itself. The affidavit might be filed in this Appeal within a period of four months from the date hereof. As soon as the affidavits are filed, papers as might be necessary will be transmitted to the Court below for issue of grant.

It appears that the revocation was obtained in the Court below not by way of an application but by way of a regular suit. Thus, the order in the Appeal will be treated as an appellate decree passed by us and will be drawn up accordingly.”

5. After hearing the learned counsel for the parties and after going through the aforesaid order we find that initially probate was granted but subsequently, the respondents of the appeal filed an application for revocation and the learned Probate court being satisfied that there was just cause of revocation, revoked the probate earlier granted.

6. Being dissatisfied the propounder preferred the aforesaid appeal.

7. During the pendency of the appeal the applicants for revocation of grant and the appellant in whose favour the probate was granted made compromise along with some other heirs by which properties which were the subject-matter of the Will were divided among themselves in a way which is in deviation from the terms of bequest and the Court has accepted such compromise and set aside the order of revocation without considering whether the order of the probate Court impugned before it was correct or not and at the same time, has passed specific order that the probate as per initial grant will be issued with a copy of compromise annexed and in the record of Court, the compromise shall be preserved along with the original Will itself. Ultimately, the Division Bench held that the order in appeal should be treated as appellate decree passed and would be drawn up accordingly. Therefore, the compromise was made part of the decree and the decree has been drawn up in terms of the compromise and approved by the Division Bench.

8. After hearing the learned counsel for the parties and after going through the aforesaid materials, we find that there was an error on the face of the order sought to be reviewed in setting aside the order of revocation without arriving at its own conclusion as regards the legality and propriety of the order impugned in the appeal and making the compromise a part of probate originally granted.

9. It is now settled law that the Probate Court is a Court of conscience and the duty of the Probate Court is only to adjudicate whether the Will in question was the last Will and testament of the deceased, whether the same was duly executed and attested, whether the same was executed without being vitiated by force, fraud, undue influence, etc. and whether the testator had the required mental capacity to execute the Will. Apart from those questions, a Probate Court cannot go into the question of title of the testator nor can the Court grant a probate which is at variance with the terms of the Will.

10. Of course, a practice has grown up in India in recognising compromise between the heirs after the grant of probate, but in such a case, such compromise is merely recorded and kept with the record but such compromise is never made part of decree. The Courts in India have all along maintained that it is for the parties to compromise so arrived at, to enforce that agreement by way of suit and not in execution proceedings; therefore, such agreement is never formed part of probate. (See A.E.G Carapiet… v. A.Y Derderian…. reported in AIR 1961 Cal 559 where the Division Bench has taken note of all the earlier decisions on this point).

11. In the case before us, the Probate Court after initial grant of probate being satisfied that there was just cause of revocation revoked the same and the Appellate Court, if satisfied that there was no such just cause, could set aside the order of revocation and in that case, the original probate would have revived. We have already pointed out that there was no argument on the merit but parties came to compromise and on the basis of compromise alone, the Court set aside the order of revocation without being satisfied whether the order of revocation was right or wrong. The procedure followed by the Division Bench was beyond the province of the Court dealing with an appeal against the order of revocation of grant.

12. We, thus, find that there was definitely an error apparent on the face of record. It is now settled by the Apex Court in the case of C.S.T v. Pine Chemicals Limited reported in (1995) 1 SCC 58 : (1995 AIR SCW 1718) that if a Court passes a decision overlooking a binding precedent and such decision is in conflict with the principles laid down in the said binding precedent, the order can be reviewed on the ground of error apparent on the face of record. In this case, the decision taken by the Division Bench is, on the face of it, at variance with the decisions of this Court as mentioned in the case of A.E.O Carapiet (AIR 1961 Cal 559) (supra), and other mentioned therein, and those decisions are in vogue for about a century.

13. The next question is about the maintainability of an application for review at the instance of a person who was not party to the appeal. The decision relied upon by Mr. Basu opines that a person aggrieved by an order can only file an application for review and if he is not a party to the proceedings, he cannot be aggrieved. In our view, the principle laid down in that decision cannot have any application to testamentary jurisdiction where the final decision passed is a judgment in rem and is binding against the whole world unlike the ordinary cases where the judgment is only binding upon the parties or their representatives. The Probate Court is vested with power under Section 263 to revoke a probate even suo motu if it appears that there is a just cause for revocation and the Court's attention is drawn to such fact by even a third party. Therefore, simply because the present applicants were not parties to the appeal, that fact cannot stand in their way in applying for review when they are undisputedly heirs and legal representatives of, the deceased testator in case of intestate succession having caveatable interest in the probate proceedings.

14. Mr. Basu lastly, relied upon a decision of the Supreme Court in the case of K. Venkata Seshaia v. Kanduru Ramasubbamma reported in (1991) 3 SCC 338 : (1991 AIR SCW 808) and contended that even in probate proceedings, there is scope of compromise and such practice has been recognised by the Supreme Court in the said case. After going through the said decision, we find that in a Special leave application arising out of a suit relating to immovable property, a compromise was effected among the parties although two of the parties initially claimed absolute title in respect of share of one of the parties who died during the pendency of the Special leave application by virtue of two different Wills alleged to have been executed by the lady. They ultimately, however, did not press their claim on the basis of those Wills and came to Compromise with the other parties to the litigation. In such circumstances, the Supreme Court accepted the terms of the compromise as lawful. In our opinion, the said decision is of no assistance to Mr. Basu's clients. First, the said Special leave application did not arise out of a suit for grant of probate or revocation of the grant and as such, the Court had no occasion to deal with the question involved herein. Secondly, if a beneficiary under an alleged Will decides not to apply for probate and is satisfied with, the share available to him according to intestate succession and enters into compromise with regards to his share, there is no wrong in accepting such concession as lawful in, the absence of any probate or letters of administration. Even after obtaining a larger share by virtue of a Will than the one available to him according to intestate succession, such a beneficiary may relinquish his larger share by way of compromise. But the question before us is whether a Probate Court dealing with an appeal is entitled to dispose of the appeal by setting aside the order of revocation of grant not on merit but on compromise of some of the heirs of the testator. Therefore, the said decision does not answer the question raised before us.

15. We, thus, find that the order sought to be reviewed should be recalled on the ground of error apparent on the face of record and the matter should be placed for hearing for considering the appeal on merit.

16. We, thus, allow the application for review. In the facts and circumstances, there will be however, no order as to costs.

Pravendu Narayan Sinha, J.:— 17. I agree.

Application allowed.