In The Goods Of Samarendra Nath Bal

Sanjib Banerjee, J.:— The wife of the alleged testator has applied for dismissal of the probate proceedings on the ground that the application for grant of probate is barred by the principles of res judicata. The propounder has died during the pendency of the application but the beneficiaries under the alleged Will resist the untimely challenge. Some of the beneficiaries have also applied for conversion of the application for grant of probate to one for the grant of letters of administration in their favour.

The alleged testator died on June 19, 1995. The propounder, now deceased, instituted proceedings under Section 276 of the Indian Succession Act before the District Delegate at Alipore seeking to assert an alleged Will of June 6, 1995. The propounder was appointed administrator pendente lite by an order of September 13, 1995 in Probate Case No. 279 of 1995. The applicant herein objected to the grant whereupon the matter was set down as a contentious cause and renumbered as OS 10 of 1996.

It appears from the extract of the order sheet relating to such deemed suit that on March 6, 2002 the plaintiff was unrepresented when the matter was taken up whereupon the plaintiff was directed to show cause by April 30, 2002 as to why the suit should not be dismissed. By Order No. 25 of April 30, 2002 the suit was dismissed for default. The propounder filed Misc. Case No. 200 of 2002 for restoration of the proceedings. The order sheet shows that the matter was deferred repeatedly as the propounder had either not taken any steps or sought an adjournment. The propounder ultimately applied for dismissal of the restoration application and Misc. Case 200 of 2002 was dismissed for non-prosecution by an order of November 1, 2006.

In between, on December 20, 1999 the applicant herein applied for grant of letters of administration in respect of the estate of the deceased and obtained the grant on August 9, 2002. The application was made during the pendency of the probate proceedings but the grant was obtained after the probate proceedings had been dismissed for default. An application for revocation of such grant, filed by the executor under the alleged Will, is pending.

In February, 2007 the propounder applied before this Court, by way of PLA No. 21 of 2007 for grant of probate in respect of the alleged Will of June 6, 1995 on the basis of a copy thereof. It was averred at paragraph 2 of the application for probate that the original Will was in the custody of the District Delegate at Alipore. The propounder claimed that the alleged testator had apparently disinherited his widow. The propounder alleged that the alleged testator had married the applicant herein when he was 66. The application for grant of probate detailed the previous probate proceedings and the withdrawal of the application for restoring the earlier proceedings after it had been dismissed.

The applicant has been cited and she has filed her affidavit which is to be regarded as written statement as the matter has been set down as a contentious cause. Directions for discovery and inspection have also been given in September, 2008.

The applicant says that upon the earlier proceedings being dismissed and the restoration application being abandoned, the same Will could not have been subsequently propounded. The applicant relies on the provisions of Order IX Rule 9 of the Code of Civil Procedure and says that where the defendant appears and the plaintiff does not appear when the suit is called for hearing and consequent whereupon the suit is dismissed, the plaintiff is precluded from bringing a fresh suit in respect of the same cause of action. The applicant says that the only course open to a plaintiff upon a dismissal under Order IX Rule 8 of the Code is to apply for setting aside the order of dismissal. Since that was the procedure adopted by the propounder and the application for restoration was subsequently abandoned, the applicant argues, there was no room for a fresh application for grant of probate of the same alleged Will being made.

The applicant makes a distinction between Order IX Rule 4 of the Code and Order IX Rule 9 thereof. Order IX Rule 4 applies, inter alia, where an order of dismissal is made upon neither party to the suit appearing at the hearing. Such rule affords the plaintiff the choice to either apply for setting aside the order of dismissal or launch a fresh suit, subject to limitation. It is the applicant's assertion that since the applicant was represented at the hearing on April 30, 2002 when the probate proceedings were dismissed for default, it was an Order IX Rule 8 situation and not a case as envisaged by either Order IX Rule 2 or Order IX Rule 3.

In support of the present application the applicant first cites a judgment reported at (1987) 1 SCC 5 (Sarguja Transport Service v. State Transport Appellate Tribunal, M.P, Gwalior). The case dealt with Order XXIII Rule 1 of the Code and the two kinds of withdrawal of a suit contemplated thereunder: absolute withdrawal or abandonment of the claim; and, withdrawal with the permission of the court to institute afresh on the same cause. It cannot be immediately appreciated as to why this case has been brought since it is evident that if Order IX Rule 9 were to apply in the present case, there would be a complete bar to the same Will being propounded afresh. Further, the earlier probate proceedings were not withdrawn; the application for restoring the dismissed probate proceedings was. The Sarguja Transport Service principle may have been more profitably invoked, if it applied, if a second restoration application had been filed after abandoning the first.

The applicant next places a judgment reported at (2004) 1 SCC 471 (K. Sivaramaiah v. Rukmani Ammal.) where the issue was whether a subsequent suit filed by the appellant before the Supreme Court was barred by res judicata. An earlier suit was dismissed and the plaintiff's appeal therefrom was left undecided as the plaintiff sought the withdrawal of the suit with liberty from the appellate court to file a fresh suit on the same cause of action. Armed with such liberty, the appellant before the Supreme Court lodged a second suit. The second suit failed on the ground of res judicata with the first and second appellate courts upholding the trial court view. The Supreme Court reversed all three decrees since the earlier suit had been permitted to be withdrawn with liberty to file afresh that implied that the judgment of the trial court in the first suit stood obliterated. The legal principle enunciated in such judgment does not further the applicant's present challenge.

The third judgment cited by the applicant is reported at (1993) 1 SCC 581 (Banwari Lal v. Chando Devi). A petition of compromise was filed before the trial court on the basis of which a decree was made. The appellant before the Supreme Court applied for recall of the order recording the compromise on the ground that the agreement was unlawful and had been obtained by fraud. The trial court recalled the order by which the suit had been disposed of in terms of the petition of compromise. A revision was carried before the High Court where it was held that the petition of compromise was really an application filed for withdrawal of the suit under Order XXIII Rule 1 of the Code and there was no question of such order being recalled. The Supreme Court allowed the appeal and restored the trial court's order. Nothing in this judgment is of any assistance to applicant's contention as to the maintainability of the second probate proceedings.

On behalf of the beneficiaries, who have been permitted to address since the propounder has expired, it is submitted that Order IX Rule 9 does not apply to probate proceedings; that on April 30, 2002 the probate proceedings had not been set down for hearing; and, that it would not appear from the order sheet that the applicant herein was represented on April 30, 2002, which would imply that the dismissal was not one under Order IX Rule 8 of the Code.

The beneficiaries refer to a judgment reported at AIR 1954 Assam 92 (Rahimuddin Sheikh v. Sarifan Nesa) for the proposition that for Order IX Rule 8 to apply, a suit had to be set down for hearing and the plaintiff had to have knowledge thereof.

Division Bench judgments reported at 78 CWN 25 (Kanailal Khan v. Anil Kumar Khan) and AIR 1985 Cal 275 (Bimla Kanta Sengupta… v. Sarojini Koner….) have been placed by the beneficiaries to suggest that the bar of a fresh suit being instituted under Order IX Rule 9 of the Code would not apply to probate proceedings. Paragraphs 5 and 7 of the Kanailal Khan judgment are relevant:

“5. Before we proceed to consider the Lahore case we feel it necessary to refer to one important fact which would seem to remove the very basis on which Mr. Banerjee's contention is raised. Order 9 Rule 9 applies only if the suit is dismissed wholly or partly under Rule 8. Rule 8 again is attracted where the defendant appears and the plaintiff does not appear when the suit is called on for hearing. I have already referred to the fact that on the date when the earlier suit was dismissed for non-prosecution, the suit could not have been called on for hearing because the matter that was fixed for hearing on that day was not the suit but an application for the appointment of an administrator pendente lite. The plaintiff had of course made an application for withdrawal of the suit or for dismissal of the same for non-prosecution but that application the learned Judge had rejected. Thus the dismissal of the suit was not upon the prayer of the plaintiff nor could it have been under Rule 8 of Order 9 as the suit was not due to be heard on that day. As such the bar of Rule 9 of Order 9 cannot apply in this case. This alone is sufficient to dispose of the present appeal but as the question of the maintainability of the seemed application for letters of administration was argued at some length by both the parties, we propose to record our decision on that point also.”

“7. Section 295 of the Indian Succession Act provides that in contentious cases the proceedings shall take the form of a regular suit “as nearly as may be” it does not lay down that the provisions of the Code of Civil Procedure would apply in their entirety to such proceedings. In (2) Ramani Devi v. Kumud Bandhu Mukherjee, 14, C.W.N 924, a division Bench of this Court considered the question whether section 103 of the Civil Procedure Code of 1882 barred a second application for probate after the first application had been dismissed for default under section 102. Sections 102 and 103 of the earlier Code correspond respectively to Rule 8 and Rule 9 of Order 9 of the Civil Procedure Code 1908. Referring to section 103 which precluded the plaintiff from bringing a fresh suit in respect of the same cause of action when a suit had been dismissed for default, this court held in Ramani v. Kumud that the provision would have no application in probate proceedings. It was pointed out that when an executor presents an application for probate of a will he cannot be regarded as a plaintiff who brings a suit in respect of some cause of action, that if there has been an adjudication on the merits, whether the adjudication be for or against the validity of the will, it is a final settlement of the matter but if probate has been refused not on the merits but merely by reason of the insufficiency of some matter of form or procedure, there is no adjudication that the instrument is not entitled to probate and therefore it may be again propounded. Their Lordship observed:

“It is manifest therefore that if the application by an executor for probate of the will has been dismissed for default, that fact by itself cannot debar an application for probate by another person, for example, a legatee who claims an interest under the will; if so, it would be futile to hold that an executor who has made default, cannot propound the will again”.”

In Bimla Kanta Sengupta the law is summarised by the Division Bench at paragraphs 25, 26 and 27 of the report:

“25. This decision, therefore, is an authority for the proposition that the bar of O. 9 R. 9 is not applicable to a probate proceeding dismissed for default of the petitioner and a fresh application for probate of the same Will is quite maintainable in law. It nowhere holds that O. 9 R. 9 as such, is not applicable to a probate proceeding.

“26. Similarly, the subsequent Bench decision of this Court in Kanailal v. Anil Kumar, (1974) 78 Cal WN 25 is also an authority for the same proposition that where an application for probate or letters of administration is dismissed for non-prosecution and not on an adjudication on merits, a fresh application for probate or letters of administration is not barred and the bar of O. 9 R. 9 of the Code does not apply to such a case. This decision in our view and as was rightly pointed out by Mr. Mukherjee, was misread and misinterpreted by the learned court below as an authority for the proposition that O. 9 R. 9 of the Code as such did not apply to a probate proceeding dismissed for default.

“27. It was submitted by Mr. Mukherjee and in our view rightly, that filing of a fresh application for probate of the same Will after the dismissal of the former application for default, is only an alternative remedy which does not affect the petitioner's right to have the former application restored under O. 9 R. 9 of the Code. Incidentally, he drew our attention to O. 9 R. 4 which also provides for alternative remedies.”

Section 268 of the Indian Succession Act, 1925 provides that the proceedings relating to the grant of probate and letters of administration would be regulated, “so far as the circumstances of the case permit,” by the Code. Section 295 of the Act provides that in contentious cases probate proceedings shall take, “as nearly as may be,” the form of a regular suit according to the provisions of the Code in which the petitioner for probate or letters of administration would be the plaintiff and the person opposing the grant shall be the defendant.

A grant of probate operates as a judgment in rem, at least qua the disposition thereunder. Probate proceedings stand on a different footing than an ordinary suit. An application for grant of probate or letters of administration is not subject to the law of limitation. The Succession Act in both Sections 268 and 295 makes room for the provisions of the Code to be applied to an extent. A contentious cause is only a deemed suit, but it is not exactly a suit in every sense.

An executor in a given case may or may not be a legatee under the Will. Indeed, an executor may be hostile to the legatees. Since it is not necessary that an executor be a beneficiary under a Will, to hold that a default on the part of the executor would decide the fate of the beneficiaries under a Will would amount to condemning the beneficiaries without affording them a chance. Similarly, a default on the part of one of the beneficiaries who propounds the Will should not prejudice the other legatees. It is an entirely different matter that upon contest a Will may be disbelieved which will bind both the executor, if any, and all persons claiming any interest thereunder. But when a matter has not been decided on merits, a person claiming an interest under a Will cannot be prejudiced for a default in which he had no role to play. The provisions of the Code would apply in matters of procedure and, in appropriate cases, to matters of substance in probate proceedings but an executor propounding a Will cannot be treated on the same footing as a plaintiff who brings a regular suit on a cause of action.

Apart from the fact that the doctrine of res judicata would have no application to the case, the bar under Order IX Rule 9 of the Code would not come into play if an application for grant of probate stands dismissed for default. The bar of a fresh suit under Order IX Rule 9, just as in Order XXIII Rule 1, is not founded on the doctrine of res judicata but is the recognition of the principle that a person should not be vexed for the same cause a second time if the first action had not been diligently prosecuted. That Order IX Rule 4 of the Code permits a subsequent suit to be instituted notwithstanding the dismissal of the earlier action under Order IX Rule 2 or Rule 3, would demonstrate that the bar to a fresh suit that Rule 9 stipulates is not guided by the principle of res judicata. Order IX Rule 4 and Order IX Rule 9 both cover situations where a suit has been dismissed for some fault or non-appearance of the plaintiff. The difference is that in the cases covered by Order IX Rule 4 the defendant has not been overly prejudiced by the plaintiff's default or has been equally lacking in diligence, whereas in cases covered by Order IX Rule 9 the defendant would have turned up at the hearing only to be met with a no-show by the plaintiff.

The principle of res judicata applies when there is a previous adjudication on merits and a dismissal for default is a situation when there is manifestly no adjudication on the merits of the matter. The dismissal of an application for grant of probate on such count would not, by implication, suggest that it was a pronouncement against the genuineness of the Will. Not every order refusing a grant of probate operates with the same finality as an order conferring the grant. A grant is conclusive unless revoked or suspended in revocation proceedings. An order dismissing an application for a grant, on the other hand, may not necessarily touch upon the genuineness or otherwise of the Will in question; the dismissal may have come about for the application lacking in form or for some procedural lapse or default. Unless the genuineness of a Will has been duly adversely pronounced upon by a competent court, there is no bar to such Will being propounded afresh.

The immediate challenge to the probate proceedings on the ground of its maintainability fails. GA No. 283 of 2009 is dismissed. Costs assessed at 300 GM will be payable by the applicant to the beneficiaries in proportion to their entitlement under the alleged Will in the event probate thereof is ultimately granted.

Urgent certified photocopies of this judgment, if applied for, be supplied to the parties subject to compliance with all requisite formalities.

(Sanjib Banerjee, J.)