T.K. Tukol, J.
1. The present appeal is directed against the Judgment of the learned District Judge in O. S. No. 23 of 1954 by which he granted a decree for probate in favour of the respondent.
2. The suit was originally instituted by one Basavalingappa on 20-8-1953 praying for the issue of a probate in his favour on the ground that one Channamma had executed a will on 20-9-1950 appointing him as an executor thereunder. Before notice of this petition could be served on the respondent Komalamma who is admittedly the daughter of the predeceased son of Chennamma, Basavalingappa himself died on 16-12-1953 and his grandson Somasekharappa filed an application for being substituted as the legal representative of the deceased. That application was granted. After service of notice in due course, Komalamma filed her statement of objection and she contended that the petitioner Somasekharappa by himself had no right to continue the proceedings as there were other legal representatives of deceased Basavalingappa, the original petitioner, that the alleged will had been taken from Channamma when she was not in a disposing state of mind, and that the testatrix had no right to execute the will as she had no title to the properties included therein.
3. On the evidence placed before him, the learned District judge came to me conclusion that Somasekharappa was the legal representative and could continue the petition, that the will had been executed by Chennamma when she was in sound and disposing state of mind and that Somasekharappa was entitled to a decree for probate in his favour. The learned Judge also considered the question raised by the present appellant as regards the dispute for payment of Rs. 250/-which under the will Komalamma was to be paid by the executor. He came to the conclusion that plaintiff had not paid Rs. 250/- and accordingly made the payment of Rs. 250/-to the appellant a condition precedent to the issue of a Probate in his favour. He directed the parties to bear their own costs.
4. It is against this order that Komalamma has preferred this appeal. Her learned Advocate Sri Adinarayana Rao has contended before me that Somasekharappa was not the legal representative, that he could not have been bought on record as the right to sue did not survive after the death of Basavalingappa, that the will had not been proved beyond doubt, and that the procedure of granting probate in favour of Somasekhara was erroneous.
5. So the first question that falls, to be considered in this appeal is as to whether Somasekharappa was rightly brought on record as the legal representative of the deceased petitioner Basavalingappa. It may be noted that the petition of Basavalingappa was one for probate as an executor and Section 222 of the Indian Succession Act categorically lays down that probate shall be granted only to an executor appointed by the will. So, the learned Advocate for the appellant has contended that Somasekharappa was not only ineligible to be brought on record as a legal representative but that the Court had erred in granting him probate in view of the mandatory provisions contained in Section 222. He has cited a number of decisions particularly of the Calcutta and the Madras High Courts in which dissenting views have been expressed as to the competency of bringing a legal representative on record in an application filed by an executor for the issue of a probate.
6. Dealing with the Calcutta decisions in their chronological order the first decision cited is that in Sarat Chandra Banerjee v. Nani Mohan Banerjee, ILR 36 Cal 799, in which Harington, J. held that the application by a widow who had applied as a legal representative of the deceased executor-petitioner could not be granted as the right to sue did not survive and the suit itself abated under Order 22, Rule 1 of the Civil Procedure Code, in His Lordship's opinion, applicants under Order 22 must be entitled to some relief which the deceased plaintiff had asserted in the Court prior to his-death, and that therefore the right of the widow being of a different nature could not be agitated in the same proceeding by being brought on record. A similar view was taken in Haribhushan Datta v. Manmatha Nath Datta, ILR 45 Cal 862 : (AIR 1919 Cal 197), in which Greaves, J. laid down that the right to a grant of letters of administration is a personal right derived from the Court and that as such it would not devolve on the heir of the grantee. In discussing this question his Lordship stated :
'The right to a grant of administration is a personal right, and although the applicant, if the will is established, may be the proper person to obtain a grant, this would be so not by virtue of any right to administration, which he inherits from his father, but by virtue of the fact that as heir of his father to the residue he is the person most interested in the estate.'
In adopting this reasoning his Lordship was pleased to accept the view taken by Harington, J. in Sarat Chandra Banerjee's case, ILR 36 Cal 799. A different view was, however taken in a subsequent case decided by a Division Bench of the same High Court in Chandramani v. Bipin Behari : AIR1932Cal206 , in which their Lordships referred to the earlier decision in Sarat Chandra Banerjee's case, ILR 36 Cal 799. In that case one Chandramani who had been claiming as a legatee under a codicil died during the pendency of the appeal after she had made a gift of her legacy in favour of her daughter Amala Dassi who was one of the applicants. The question before their Lordships was whether she was the legal representative of Chandramani. In answering this question in the affirmative, their Lordships laid down as follows :
'Now one of the applicants, Amala Dassi is an heir of the deceased Chandramani, being her daughter; and if the codicil is proved (as we will, for our present purpose, assume) then she will succeed to the legacy of Rs. 10,000/- given to Chandramani as to her Stridhan. Then, we have it that in August 1930 Chandramani executed a deed of gift of the legacy in favour of all the applicants, and if the codicil is proved, all these persons are entitled to succeed to the legacy to Chandramani. They are therefore clearly within the definition of 'legal representative,' in Section 2 of the Code.
'It is true that the right to obtain probate of a will does not survive ............ ILR 36 Cal 799 but in appeal in a case where the judgment appealed against may operate as one in rem, different considerations will arise. In the event of the codicil being proved, the Court may pass appropriate orders for the administration of the estate of the deceased.'
It was for these, reasons their Lordships allowed the appeal and directed the debtor and the other legatees to be brought on record as the legal representatives. It may be incidentally observed at this stage that in the two earlier cases of the Calcutta High Court their Lordships did not consider this aspect of the representative character of an applicant either for a probate or for letters of administration. It is pertinent to observe that the distinction between an administrator and an executor is that the former derives his authority under the will while the latter gets that authority to represent the estate under the orders of the Court. The representative capacity of the executor or of the administrator is quite evident in that whether he has any personal interest or not as a legatee under the will he is certainly entrusted with the management of the estate for the benefit of all those legatees who get an interest under the will. Their Lordships therefore came to the conclusion that a person who becomes an heir to the legatee will be a legal representative and would be competent to continue a proceeding started by an executor. This view is supported by the decisions of the Madras High Court to which 1 will make a reference presently.
7. The two other decisions of the Calcutta High Court which are subsequent to the decisions in Chandramani's case : AIR1932Cal206 , are (1) Haripada Shaha v. Gobinda Chandra Shaha, ILR (1948) 1 Cal 300 and (2) Mahatma Missir v. Thakur Prasad Chaudhuri, ILR (1950) 2 Cal 653. It is pertinent to observe that both these decisions rested on the view taken by that High Court in Sarat Chandra Banerjee's case, ILR 36 Cal 799 and Haribhushan Dutta's case, ILR 45 Cal 362 : (AIR 1919 Cal 197) and no reference seems to have been made to the decision in Chandramani's case : AIR1932Cal206 .
8. in my view the conclusion arrived at by the Calcutta High Court in Chandramani's case : AIR1932Cal206 , is quite reasonable and acceptable. In considering an application obviously filed under Order 22 we cannot lose sight of the definition of 'legal representative' given in Section 2 of the Code of Civil Procedure according to which a person who in law represents the estate of the deceased is a legal representative. That term also includes not only any person who inter-meddles with the estate of the deceased; but also the person on whom the estate devolves on the death of a party who is sued in a representative character. The definition would, therefore, bring the heirs into the category of legal representatives and it would be reasonable to hold that in such cases where the proceeding is practically taken in a representative character, the persons on whom the interest devolves or who represent the estate of the deceased should be brought as legal representatives.
This aspect of the case arising in such cases has been fully discussed by a Division Bench of the Madras High Court in Rama Naidu v. Rangayya Naidu, AIR 1933 Mad 114. in that case one Rama Naidu applied in the lower Court for probate of the will of the deceased. Certain persons entered a caveat and the proceeding became a contentious one. The Lower Court, holding that the will had not been proved to be genuine refused probate and Rama Naidu filed the present appeal and died before the hearing. His sons have been brought on the record and an objection has been taken as to their legal competence to prosecute the appeal, and that was the point for decision. In deciding this case, the question before their Lordships was whether a person initiating the proceeding for the grant of a probate does so in a representative capacity or merely in his individual character. The answer to this question given by Venkatasuhba Rao, J. deserves to be quoted:
'In considering this question there are two distinct matters which must not be confused. The right which a petitioner in such a proceeding asserts is in one sense an individual or a personal right. But because he asserts a personal right, the proceeding does not become one for his personal benefit. An executor applies for probate, for instance, on the strength of his special right, which he derives from his appointment under the will. But is the proceeding on that account to be regarded as having been initiated by him in his individual character? He may often possess no beneficial interest and his right may rest on no more than a bare legal title.
'The proper view to take is that his object in commencing the proceeding is to get an adjudication in the interests not only of himself but of others, that the will propounded is genuine and valid. In inviting the Court to pronounce in favour of the will, the executor is acting in a representative capacity, that is to say, for the benefit of the whole class of persons, including himself, interested in having it established. The position of a petitioner for probate is not dissimilar to that of a plaintiff under Order 1, Rule 8, Civil P. C. What that rule contemplates is a common interest and in the case of a petition for probate there is an identity of interest on the part of the whole body of persons claiming under the will. One of the necessary incidents of a representative suit is that any person for whose benefit it is instituted may intervene and ask to be made a party: Order 1, Rule 8, Clause 2. If a petition for probate stands on a footing similar to that of a representative suit, it is right in principle to extend the analogy and hold that any legatee or beneficiary may, on a proper case being made out, intervene at any stage and claim to come on the record.'
The learned Advocate for the petitioner however, submitted that even if the petitioner is considered to be a legal representative the proper remedy for him is to file a separate application for letters of administration annexed to the will and not to continue the same proceeding. This argument lays greater emphasis on the technical aspect rather than on substance and justice which ought to guide the solution of formal defects in any proceeding. As Mr. Justice Reilly, who was a party to the decision quoted above, observed;
'An Executor who prays for probate, prays in form for something which can be granted to no one else, but the essence of the proceedings is that he seeks to establish a will, not for himself, but as the representative of those who take benefits under it. If he fails in his duty, any of those whom he represents may intervene to carry on the proceedings, having in effect by representation through the executor been a party to the proceedings from the outset. And, if in the course of the proceedings the executor drops out through death, it follows that any of those represented may similarly carry on the proceedings with the unessential modification that the prayer must then be for letters of administration with the will annexed. There is no reason to doubt that the position is the same in this country.'
With great respect I agree with this view that where a proceeding for a probate is permitted to be continued by a legal representative who is entitled only to letters of administration, the modification in the words of Mr. Justice Reilly is only an ''unessential modification.'
9. Two other decisions to which our attention was drawn by the learned Advocate can be distinguished on facts. In Edward Waston Coleston v. Mrs. Theresa Chitty : AIR1934All1053 , a petition for probate had been filed by one Mitchel as the executor. The learned Judge granted the probate in favour of the Administrator General on the ground that the petitioner was in the unfortunate position of having to avoid his creditors. In allowing the appeal their Lordships held that since the probate has to be granted only to an executor appointed by the will the order granting the probate to the Administrator General who had not been named in the will, was illegal. In the meanwhile, Mr. Mitchel died and their lordships observed that the question of granting letters of administration could be considered when a proper application was made by a proper person. It is necessary to note that the Court exercising the probate jurisdiction is also the Court to grant letters of administration. So, where an application is made by an executor for a probate and on his death the legal representative is permitted to continue the proceedings without any specific objection in the Trial Court from the other party as to form of the application or relief sought, the Appellate Court may grant letters of administration in a proper case, if the ends of Justice so require. In the view that I take of the legal position, I hold that Somasekharappa having been permitted to continue the proceedings, the proper order was to direct the issue of letters of administration In his favour and not of probate as has been done by the Trial Court.
10. The other question that remains to be decided is as regards the genuineness and the validity of the will. As stated above the contention of the appellant was that Channamma was unconscious and was not in a fit condition of mind to execute a will. In proof of the will the petitioner examined himself as P.W. 6, Rajasingh (P.W. 2) and 3 attesting witnesses -- Gubbi Setty (P. W. 3), Revanna (P. W. 4) and Chikka Revanna (P.W. 5). The petitioner-Somasekharappa deposed that he was present when the will was executed and that Chennamma was in a sound state of mind when the will was got written. This assertion has not been challenged in the cross-examination and not even any suggestion was made about the alleged unconscious state of mind of Channamma when the will was executed by her.
Raja Singh (P.W. 2) the scribe whose eye-sight had become dim on account of cataract at the date of his evidence could not identify the thumb impression and the other signatures. He so admitted in his examination-in-chief and when the will was read over to him he stated that he had written the will and that Chennamma affixed her thumb impression to it. He also stated that she was in sound mental condition when she gave instructions and got the will written. In his cross-examination it was elicited that she died a month after the will was executed and that he was a professional writer. It was also elicited that he had not endorsed separately that she was in sound mental condition at the time she gave him instructions to write the will. No circumstances were elicited in the cross-examination of the witness to throw any doubt or to raise any suspicions regarding the soundness of the mental condition of Chennamma, Gubbi Shetty (P.W. 3) is a neighbour who has attested the will. He identified his signature and also stated that Chennamma had affixed her thumb impression. According to him, Chennamma was suffering from dropsy when he (Revanna) and deceased testator Rudrappa attested the document. In his cross-examination it was elicited that the Sub-Registrar had gone to the house for registering the document. He also deposed that it was Chennamma who gave instructions and got the will written.
The learned Advocate for the appellant commented on the 'omission to examine the Sub-Registrar as a witness in this case; it appears from the Order Sheet and also from the arguments advanced by the learned Advocate for the respondent that the petitioner took reasonable steps to secure the presence of the Sub-Registrar. But it appears to me that that officer had retired by then and his presence could not be secured. Under these circumstances not much weight can be attached to the omission to examine the Sub-Registrar. The evidence of the two other attesting witnesses Revanna and Chikka Revanna also goes to show that Chennamma was in a sound state of mind and I am constrained to observe that no circumstance was either suggested or brought about in the cross-examination of any witnesses on the basis of which one could doubt the veracity of what was stated by Somasekharappa, the writer and the attestors.
11. The learned Advocate contended that the contents of the will indicated that the document was suspicious. One of the points made out by him was that the testator had decided to execute the will in order to avoid the possible disputes that might arise in future regarding her estate. It was submitted that there was none who could lay claim to the property of Chennamma as the appellant was the only legitimate claimant and that the said recital in the will clearly indicated that many of the recitals were introduced as a matter of form by the scribe. I cannot draw any inference against the genuineness of the will from such recitals which are of a very formal character. The respondent Komalamma was examined as D.W. 2 and all that she stated was that Chennamma died of prolonged illness and that she was unconscious for about two months or more prior to her death. It does not appear, even from what she stated in her examination-in-chief, that she was present with Chennamma during the material period when the will is said to have been executed and it is difficult to attach any importance to such a categorical statement.
In her cross-examination she admitted her ignorance as to who was treating her and whether any medical aid had been arranged by Basavalingappa or not: but she stayed for a period of 2 or 3 months in her last days. She admitted that it was Basavalingappa who performed the obsequies of Chennamma. The only witness examined by the appellant is one Channamma who seems to know nothing about the illness of Chennamma, though he deposed in his examination-in-chief that she was senseless for one or 1 1/2 months. Even accepting what has been stated by the appellant and her witness in examination-in-chief, it is difficult to conclude that Chennamma was not in a sound disposing state of mind.
12. The principles which should guide a Court in ascertaining the evidence and circumstances relating to a will have been explained clearly by their Lordships of the Supreme Court in Venkatachala Iyengar v. Thimmajamma, : AIR1959SC443 . The relevant observations at pp. 451 and 452 are as follows:
'Even so, in dealing with the proof of wills the Court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of testator's mind and his signature as required by law, Courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.
'There may, however be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propnunder's case that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feable and debilitated; and evidence adduced may not succeed in removing the legitimate doubts as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or Unfair its the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator.* * * *'
As observed above no circumstances have been elicited in. this case which could raise the Court's suspicion either about the soundness of the mind of the testator or about the execution and attestation of the document.
It was, however, contended that Komalamma the respondent being the only grand-daughter whom Channamma had brought up with affection and got her married, would have been given the entire property by Channamma and it is quite unnatural that she would give her properties to Basavalingappa. In considering this argument, it should be remembered that Basavalingappa is no other than the divided brother of the deceased husband of Channamma. It is in evidence that it was he who was looking after Channamma, who was about 65 years old at the date of the execution of the will. It was he who had performed the obsequies of Channamma's son and daughter-in-law, if under these circumstances Channamma left some property to Basavalingappa, there is nothing unnatural. The entire property is valued at Rs. 4000/-. The will requires Basavalingappa to pay Rs. 250/- to the appellant and an equal amount to Shivamma, Basavalingappa's daughter's daughter who had looked after Channamma during her illness. There was already a mortgage encumbrance of Rs. 1000/- on one of the properties under a mortgage deed dated 20-3-1946. Basavalingappa was also directed to sell the B schedule properties and pay Rs. 500/- to the construction of the temple in Thumsapura village to perpetuate her husband's memory. Considering the natural affection and the care which Basavalingappa had bestowed upon Channamma both during her illness and prior thereto, I do not think that there is anything unnatural in the dispositions of the property made by Channamma. On a careful assessment of the evidence and the circumstances of this case I am satisfied that the will is genuine and was executed by Channamma when she was in a sound state of mind.
13. Lastly, the learned Advocate, requested the court to permit additional evidence in the form of three post cards to be produced in Court. Under Order 41 Rule 27(1) of the Code of Civil Procedure the parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the appellate court. But if (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined. In this case it is not alleged that these post cards were sought to be produced in the trial court and were refused. All that is stated in the affidavit is that the post cards were traced only a few days back as they had been misplaced amongst the miscellaneous papers belonging to the appellant's husband.
In this connection reference may be made to Clause (b) of Sub-rule (1) of Rule 27 or Order 41, which is introduced by the Mysore High Court by way of amendment to the Order of the Code of Civil Procedure and which reads as follows:
'27(1) The parties to an appeal shall not be entitled to produce additional evidence whether oral or documentary, in the Appellate Court. But if --
(a) * * * *
(b) The party seeking to adduce additional evidence satisfies the Appellate Court that such evidence, notwithstanding the exercise of due diligence, was not within his knowledge or could not be produced by him at or before the time when the decree under appeal was passed.'
(c) * * * *
the Appellate Court may allow such evidence or document to be produced, or witness to be examined.'
The present petition for additional evidence was made in September 1958 and there are no averments in the affidavit from which the Court could be satisfied that the appellant had exercised due diligence and had not been able to find out the three post cards before the decree in appeal was passed. I, therefore, see no reason to grant permission for adducing additional evidence.
14. The respondent has filed certain cross-objections regarding the order of the trial court as to whether Rs. 250/- had or had not been paid to Komalamma by deceased Basavalinsappa. It is beyond the competence of a Court of probate jurisdiction to consider questions relating to title to property or of satisfaction of claims arising under the will. I therefore consider that it was not open to the trial court to have considered this aspect of the claim and the finding is therefore without jurisdiction.
15. In the result, I direct that the order passed by the trial court be modified to the effect that instead of granting a probate in favour of the respondent letters of administration shall issue. The order directing the payment of Rs. 250/- as a condition precedent is set aside. In view of the fact that I have directed a modified relief to be granted to the petitioner on equitable grounds I direct that the parties shall bear their own costs of both the courts.
16. While agreeing with the conclusions reached by my learned brother in the judgment which is now delivered by him, I would like to add a few words.
17. As regards the appellant's petition for putting certain documents by way of additional evidence, it should be stated that the requirements of Order 41 Rule 27 (1) (b) (as amended by the High Court of Mysore) have not been satisfied in the present case. Apart from a bare allegation in the affidavit to the effect that these documents had been mislaid, there is no material from which the Court could be satisfied that in spite of the exercise of due diligence on the part of the appellant, these documents could not be produced before the court of trial. In these circumstances I agree that there is no justification for allowing the appellant to put in additional evidence, at this stage.
18. The petition for probate, in this case, was made by a person who was competent to make such an application and to whom under the provisions of Section 222 of the Indian Succession Act, a probate could have been issued. Therefore, there is no initial defect in the petition for probate. After the death of the petitioner Basavalingappa, when notice of the application by Somasekharappa for his being brought on record as a legal representative was served on the appellant, the latter no doubt, objected to Somasekharappa being brought on record as a legal representative. But, no specific objection was taken to the effect that the right to sue did not survive and the proceedings for probate could not be continued after the death of the executor. The question as to whether the right to sue would survive in proceedings for probate, consequent on the death of the executor-applicant, does not appear to have been argued before the lower court. If such an objection had been taken at the earliest opportunity, it would have been open to Somasekharappa to have applied for the grant of letters of administration.
It is only in the course of the arguments before us that, relying on the Calcutta decisions referred to in the Judgment of my learned brother, that an argument has been advanced on behalf of the appellant that the right to sue did not survive after the death of Basavalingappa and that the lower court erred in making an order to the affect that Somasekharappa could continue the proceedings as the legal representative. After all, in proceedings whether it be for the grant of probate or letters of administration, the question for determination by the Court will be, whether the testator or the testatrix executed the will while in a sound and disposing state of mind. Therefore, there is no question of lack of jurisdiction, merely because the Court, after the death of the applicant for probate, permits others interested in proving the will to continue the proceedings, subject to suitable amendment being made in the petition to convert the prayer for the grant of probate into one for the grant of letters of administration.
As has been pointed out by the learned Judges of the Madras High Court in the case of AIR 1933 Mad 114 the question whether persons who had larger rights flowing from the nature of the proceedings, namely, a right to intervene at any stage, had not been considered in ILR 36 Cal 799 and ILR 45 Cal 862 : (AIR 1919 Cal 197). For the reasons which have been set out in detail in the said Madras decision, it would be proper to grant a modified relief to Somasekharappa, particularly having regard to the fact that the contention that a fresh application for Letters of Administration should be filed, had not been taken at the earliest opportunity (but has been raised more than half a dozen years after Somasekharappa had sought to be brought on record as the legal representative). In these circumstances, it will be, in the interests of justice, to grant such a modified relief and it will also prevent multiplicity of proceedings.
It should also be stated that the learned counsel for the respondent brought to our notice the fact that Somasekharappa was interested in proving the will executed by Channamma, because Somasekharappa got under another will executed by Basavalingappa, the entire properties of Basavalingappa which included those that he got from Channamma. This will by Basavalingappa in favour of Somasekharappa has been marked as Ex. P-1 and is dated 15-10-1945. (It is stated by the learned Advocate for the respondent that Somasekharappa has been granted probate in respect of Ex. P-1). On the ground that he became-entitled to the properties of Basavalingappa as per the terms of Ex. P-1, Somasekharappa had an interest in proving the will executed by Channamma. Therefore, according to Rama Naidu's case, AIR 1933 Mad 114 Somasekharappa would be a person interested in the proceedings pertaining to the will.
19. For the reasons stated in the judgment of my learned brother, I agree that this will is a natural will and that there is no suspicion attaching to the same. The evidence adduced by the petitioner is sufficient to establish that the will was executed by Channamma while she was in a sound and disposing state of mind. I agree to the order proposed by my learned brother.