1. But it is not sufficient to dispose of this matter on this ground because there is another important aspect of the matter which has been agitated at the bar and to which in our opinion it is necessary to make a reference.
Even if the appeal was competent, in our opinion it would have been futile for this Court to hear this appeal and go into the merits of the matter when probate proceedings have been launched and are actually pending before the Probate Court. Mr. Mehervaid says that we should decide the merits of the appeal because the decision given by the learned Judge on the various issues raised before him would become 'res judicata' as between his client and the respondents in the probate proceedings.
In our opinion, it is clear that a decision as to the proof of the will given by any civil Court can under no circumstance operate as 'res judicata' in probate proceedings taken out in the Probate Court. In a civil suit the Court is only concerried with deciding the rights between the parties. In a Probate Court the position is entirely different.
The Probate Court is a Court of conscience and it does not decide rights between parties but it has to deliver a judgment which would become a judgment 'in rem' and this judgment will bind not only the parties before it but the whole world. Therefore, the approach of a Probate Court to the question before it is different from the approach of a civil Court adjudicating upon the rights between the parties, and this position is made clear by the provisions of Section 41, Evidence Act.
It is only a final judgment, order or decree of a competent Court, in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction which confers upon or takes away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing, not as against any specified person but absolutely, is relevant when the existence of any such legal character, or the title of any such person to any such thing, is relevant, and such judgment, order or decree has been made conclusive proof with regard to the legal character which it declares.
Therefore, a judgment 'in rem', which is the judgment with which Section 41 deals, is a judgment passed by a Court as the exclusive Court dealing with probate matters. A civil Court dealing with the same question, deciding the same issue, cannot pass a judgment which would bind the world and would constitute a judgment 'in rem'. Therefore, even though the civil Court here has decide ed a question as to the proof of the will and the codicil and although it has held that the will and the codicil have been proved, even so its judgment will have no binding effect as a judgment 'in rem'. From this it must follow that this decision cannot operate as 'res judicata' and cannot bind the Probate Court. The Probate Court must apply its own mind and must satisfy its own conscience that the will or the codicil put forward as the last will or codicil of the deceased is his last will and codicil. It must be satisfied as to the execution of the document, it must be satisfied as to the testamentary capacity of the deceased, and that satisfaction cannot be influenced or affected by any decision given by any civil Court although the issue raised was identical.
Therefore, any apprehension on the part of Mr. Mehervaid that by our refusing to hear this appeal he will be confronted in the Probate Court with the decision given by the learned Judge is entirely imaginary. We wish to make it clear--and Mr. Seerval does not contest the position--that in the probate proceedings which are pending the question will have to be agitated without any reference to the decision given by the learned Judge in this suit.
2. Perhaps a reference might be made to a decision which was referred to by Mr. Seervai and that is the decision in--'Chinnasami v. Hariharabadra', 16 Mad 380 (A). In that case an application for probate of a will was opposed by the widow of the testator. She had previously made an application under the Guardians and Wards Act for a declaration that she was the guardian of the person and the property of the infant son of the testator.
That application was opposed by the petitioners for probate who claimed to be testamentary guardians of the property, and in those proceedings it was contended that the will was a forgery, and the Madras High Court held that the question of the genuineness of the will under the Guardians and Wards Act proceedings was not 'res judicata' for the purpose of the proceedings under the Probate and Administration Act, and in the judgment it is pointed out (p. 383) :
'In our opinion the judgment of a Probate Court granting or refusing probate is a Judgment 'in rem', and therefore the judgment of any other Court in a proceeding 'inter partes' cannot be pleaded in bar of an investigation in the Probate Court as to the 'factum' of the will propounded in that Court.'
3. Mr. Mehervaid has relied on a judgment of the Supreme Court for the proposition that where we are dealing with a case of 'res judicata' which is not covered by Section 11, then the mere fact that the Court which decided the issue in the first suit was not competent to decide the subsequent suit would not prevent the principle of 'res judicata' applying.
That decision is reported in--'Raj Lakshmi Dasi v. Banamali Sen', : 4SCR154 . There the Supreme Court was considering the decision of a Land Acquisition Judge and they held that his decision would operate as 'res judicata' even though he was not competent to try the subsequent suit, and the argument based upon this decision by Mr. Mehervaid is that although it may be said that the civil Judge was not competent to deal with probate proceedings, still his decision would constitute 'res judicata' in the subsequent probate proceedings.
Now, it is erroneous to think that the question that arises in this appeal is a simple question of 'res judicata' which was considered by the Supreme Court. It is not merely that the civil Court is not a competent Court for deciding probate proceedings. If that was the only contention, then undoubtedly the decision of the Supreme Court would apply.
But there is a further and a more Important aspect of the matter to which we have already made reference and that is that not only the Probate Court is an exclusive Court with regard to probate proceedings, but. It is a Court whose judgment operates as a judgment 'in rem' and it is a Court of conscience and therefore on principle a decision 'inter partes' in a civil Court cannot operate as 'res judicata' upon not only a Court of exclusive jurisdiction but upon a Court whose judgment operates as a judgment 'in rem. Therefore, while agreeing, with respect, with the view expressed by the Supreme Court, we think it has no application to the question that we have to consider in this appeal.
4. it is indeed unfortunate, and we sympathise with Mr. Mehervaid's client here, that this long litigation should have become unnecessary and the same issues might have to be fought out again in the Probate Court. But it does happen that owing to the technicality of the law sometimes Injustice is done, but that is no reason why we should hold, as Mr. Mehervaid wants us to hold, that the decision of the civil Court constitutes 'res judicata' and the parties should not be permitted to litigate the question again.
We cannot possibly call upon the Probate Court to accept the finding of the civil Court as binding upon it. There is also another difficulty in this case. As charity is concerned under the will, the Charity Commissioner would be a party to the Probate proceedings, and in no view of the case can he be bound by the decision given by the civil Court on these issues.
5. The result, therefore, is that we must hold that the appeal is not competent as being premature. The appeal will therefore be dismissed.
(The rest of the Judgment is not material for.the purpose of reporting).
6. Appeal dismissed.