1. The facts giving rise to this appeal, broadly stated, are that on 16-3-1959 the respondents had filed an application (Varsa Case) No. 30/58 in the Court of the Civil Judge (S.D.) Surendranagar for obtaining the Letters of Administration, with the Will annexed on the basis of a will dated 11-9-1935 executed by Bhura Punja Khachar who died at Sayla on 25-8-1958. The appellants before this Court who were opponents in that proceeding resisted the same. After hearing the parties, the Letters of Administration with the Will annexed were directed by the Court to be issued in favour of the respondents. After that decision was given, the appellants learnt from Mr. Kantilal N. Vora, an advocate of Muli, about deceased Khachar Bhura Punja having made his last Will on 17-11-1956, and the same was duly attested and registered. He also told them that he had written the same at his instance, and had that will with him. That led them to file Misc. Application No. 8/60 in the same Court, for having the grant of Letters of Administration with the Will of 1935 annexed to the respondents revoked or annulled under Section 263 of the Indian Succession Act, and for issuing a probate in their favour on the basis of his last Will made on 17-11-1956.
2. The respondents resisted the application inter alia contending that they have been lawfully granted the Letters of Administration on the basis of the will dated 11th September, 1936 made by deceased Khachar Bhura Punja, and since the applicants were the parties in that proceeding any such application by them was not maintainable, the same being barred by the principles of resjudicata and estoppel. They also denied any knowledge about the same having been executed in a sound disposing state of mind by deceased Bhura Punja or about the applicants having learnt about it in the manner alleged by them. They, however, contended that no such application can now lie and it should be rejected with costs.
3. The trial Court raised two issues. The first was whether the applicants prove that there was a just cause for the revocation of the grant of the Letters of Administration made in favour of the opponents in Varsa Case No. 30/58, and if so, whether they prove that the Letters of Administration with the will annexed said to have been made on 17th November, 1956, in their favour should be granted to them. While dealing with the first issue, he accepted the contention of the opponents that the applicants were parties to the earlier proceeding and they had an opportunity to contest the same. He further found that the provisions of Civil Procedure Code applied, and since they had failed to contest on any such ground, they cannot be heard to agitate the same cause later and therefore the application was barred by principle of res judicata. The application was, thus, held not maintainable, and in those circumstances, it did not consider issue No. 2, and dismissed the application with costs. Feeling dissatisfied with that order passed on 10th January, 1961, by Mr. P.P. Patel, Civil Judge (S.D.) Surendranagar, the appellants have come in appeal before this Court.
4. The contention made out by Mr. Vyas for the appellants was that the Court has ignored the effect of the specific provision contained in Section 263 of the Indian Succession Act, hereinafter referred to as the 'Act', and more particularly arising out of Illustration (vi) there below in rejecting the application. According to him, the learned Judge was wrong in holding the application not maintainable as barred by the previous decision in the Application No. 30/58 to which they were contesting parties. It was pointed out that it was after the decision in that application that the applicants came to learn about the deceased Bhura Punja having made the last will on 17th November, 1956 and it was that will which would stand as against any previous will said to have been made by him on 11th September, 1936 on the basis of which the Letters of Administration with the said will annexed were granted by the Court in favour of the respondents.
5. Now Section 263 of the Indian Succession Act says that the grant of probate or letters of administration may be revoked or annulled for just cause. The Explanation there below explains the term 'just cause' used in the section as under: -
''Just cause' shall be deemed to exist where -
(a) x x x x x
(b) x x x x x
(c) x x x x x
(d) the grant has become useless and inoperative through circumstances; or
(e) x x x x x.'
Below this section, certain illustrations have been set out. Of those No. (vi) covers the present case. We would set out the same.
'(vi) Since probate was granted, a later will has been discovered.'
6. Thus on a plain reading of this section together with the Explanation and the Illustration (vi) given there below, it is abundantly clear that the Court which had power to grant probate or letters of administration has been also invested with powers to revoke or annul the same. That power has to be, however, exercised where there exists a 'just cause'. One of the grounds set out there below is where the grant has become 'useless and inoperative through circumstances'. The same words 'become useless and inoperative' were used in Explanation 4 to Section 50 of the Probate and Administration Act, 1881, and they came to be explained by saying that the discovery of something which if known at the date of the grant would have been a ground for refusing it in the case of Bal Gangadhar Tilak v. Sakwarbai, reported in (1902) 4 Bom LR 637. Then it is said, 'such, for instance, as the discovery of a later will, or codicil, or subsequent discovery that will was forged, or that the alleged testator is still living'.
7. If, therefore, deceased Bhura Punja had made a will in November 1956 as is the case of the appellants, and if that will was set up as a defence in the previous application No. 30/58, no such letters of administration with the will of 11-9-35 would have been granted. That no doubt would have depended on the legal and proper proof of the will said to have been made by him on 17-11-56. The rule of law is that the will operates after the death of the testator. That which comes in effect shall again be his last will duly executed by him in a sound disposing state of mind. If such a will is found to have been made before his death, and that is a later one or rather the last one, any grant of probate or letters of administration granted on the basis of his previous will would be inoperative as it is rendered unless, and the Court is justified in annulling or revoking the same on such a finding recorded under Section 262 of the Act, Illustration (vi) below the section makes that position clear when it says that the Court would be justified in revoking or annulling a probate already granted if a later will has been discovered. It was, therefore, essential for the trial Court to go into the question as to whether the applicants knew about the existence of any such will at the time when the previous proceeding was heard and decided and if they did not, they could not have raised any such contention which would defeat the claim of the opponents in that application.
8. The case of the appellants is that after the decision in the previous proceeding when they happened to meet Mr. Kantilal H. Vora, an Advocate practicing at Muli, they learnt about Khachar Bhura Punja having made the Will on 17-11-1956, and that will was registered. They have also filed the affidavits of two attesting witnesses Virabhai Ex. 12 and Jiva Bhana Ex. 14 as also of Mr. Vora at Ex. 16 in the case. Mr. Vora's affidavit makes it clear that the Will was written by him at the instance of deceased Bhura Punja and that it was duly executed and attested by the witnesses. Besides, as stated by him, he had identified him before the Sub-Registrar and the will was duly registered. Later on he got back the will from the Registration Office and when the applicants met him a few days before this application was made, he had told them about it saying that they have been given the property referred to therein. There is nothing said against that part of Mr. Vora's evidence, and it can be certainly taken that the applicants knew from him and that was later on after the decision in previous proceeding. Bhura Punja died on 25-8-58. It is thus clear that Bhura had made his last will in 1956 and that will would supersede his previous will made in 1935. The last will of 1956 becomes effective after his death in August 1958. It was unfortunate that the learned Judge did not consider as to how and when the applicants came to know of this will of 1956, and only proceeded on the basis that since the applicants were party-opponents in their application, they were bound by the decision, little realising that a point can only be raised, if they were shown to have known about it before the date of even the decision in that proceeding.
9. The learned Civil Judge thought that the provisions of the Civil Procedure Code will apply by reason of Section 268 of the Indian Succession Act, and by reason of the principle contained in Section 11 of the Civil Procedure Code and more particularly in view of Explanation IV the present application was barred and not maintainable in law. According to him, such a point might have been made ground of defence or attack in such former suit and it should be deemed to have been a matter directly and substantially in issue in such proceeding by Explanation IV of Section 11 to the Civil Procedure Code. He also found some support from the decision in the case of Yenkana v. Letchana, AIR 1939 Rang 215, where it was held as under: -
'An application for revocation of a grant of letters of administration or probate by a party, who contested the order at the time at which it was made is on an entirely different footing from such an application made by a party, who was a stranger to the proceedings, which led to the making of the order and had no notice of them. In the former case, the matter is prima facie res judicata as between the parties. It is an elementary principle that where a party had an opportunity to put forward a particular just cause and had not chosen to put it forward, he cannot be heard to agitate the same cause later. The real question is whether the party applying for revocation had an opportunity, before the grant was made, or urging the very grounds he now puts forward or whether he urged any new grounds that have arisen since he had that opportunity, which he refused to utilize'.
10. Now the learned Judge has lost sight of certain expressions used in Section 268 of the Indian Succession Act which provides that the proceedings of the Court of the District Judge in relation to the granting of probate and letters of administration shall, save as hereinafter otherwise provided, be regulated, so far as the circumstances of the case permit, by the Code of Civil Procedure, 1908. The words 'save as hereinafter otherwise provided' were lost sight of. The provisions of the Civil Procedure Code would no doubt apply for the purpose of regulating any such proceedings provided there is no other provision relating to the same in the Indian Succession Act. We have, as already pointed out hereinabove, Section 263 which entitles the Court to revoke or annul for just cause, grant of probate or letters of administration. Any of the provisions contained in Civil Procedure Code would, therefore, not help the other side in a matter where an application for revocation or annulment of any such grant or probate or letters of administration was made by any party before the Court. There is, thus, a specific provision is that regard and there would not arise any question of bar as sought to be applied by the trial Court. Apart from that position, this revocation or annulment is sought for on the clear basis that they did not know till then about deceased Bhura Punja having made any such will before his death. If they had come to know about it, they would have surely put up the defence in that regard and more particularly when the property has been given to them in his last will. That was, thus, a subsequent discovery viz., about the existence of the will made by deceased Bhura Punja which justified the annulment or revocation of the probate or letters of administration given to the opponents by the Court.
11. In fact the trial Court has ignored the subsequent part of the observations in the case referred to above which clearly show that the real question is whether the party applying for recovation had an opportunity, before the grant was made, of urging the very grounds he now puts forward. As already pointed out hereabove, they had no opportunity to do so for the simple reason that they did not know about it. The case, therefore, would not have any application to the facts here. The application was, thus, maintainable and there was no such bar as thought by the learned Judge in refusing to deal with the application. The learned Civil Judge was, therefore, wrong in recording his finding in respect of issue No. 1 in the negative. In our view there was a just cause for the revocation of the grant of the letters of administration made in favour of the present opponents in Varsa Case No. 30/58, provided the subsequent will was established in accordance with law.
12. The learned Civil Judge has, however, not recorded his finding in respect of issue No. 2 since in his view that did not survive on his recording the finding in the negative on issue No. 1. The finding on issue No. 2 is essential to be recorded before granting the prayer made by the applicants for the grant of Letters of Administration with the will said to have been made by this Bhura Punja on 17th November 1956. The case shall, therefore, be sent back for recording his finding in accordance with law on issue No. 2. The costs of this appeal shall be the costs in the cause.
13. Appeal allowed and Case remanded.