1. This is an appeal against the order of the learned District Judge Ajmer, dated October 6, 1960 dismissing the joint application filed by appellant Smt. Kiran Kumari alias Roop Kanwar and her husband Narendraput Singh for the grant of probate of a will (Ex. 1) said to have been executed by Smt. Manohar Kanwar on July 20, 1947, in favour of Smt Kiran Kumari. Smt. Manohar Kanwar was the second wife of Seth Gumanmal and died issueless on July 16, 1949. Guman Mal's first wife Smt. Sobhag Kanwar had died in 1901 leaving behind a son Jeetmal and a daughter Ratan Kanwar. Jeetmal died and Smt. Prabhavati Kanwar (respondent No. 1) is his widow. Smt. Ratan Kanwar was married to one Deep Chand and appellant Smt. Kiran Kumari is their daughter. Respondent Man Mohan Lal claims to be the adopted son of Smt. Prabhavati Kanwar. An application was filed by Narendraput Singh before the District Judge, Ajmer, on August 9, 1949, for probate of the aforesaid will, in his capacity as its executor. Smt. Prabhavati Kanwar, Manmohan Lal and one Anand Mal Lodha (respondent No. 4) contested that application on the grounds, inter alia, that no will had been executed by Manohar Kanwar and that the application was bad for non-joinder of necessary parties.
The learned District Judge framed the following four issues,-
1. Is the application bad for non-joinder of nccessary parties ?
2. Has the applicant under-valued the assets and paid deficient court-fee If so, what should be the valuation and necessary court-fee?
3. Whether the will propounded by the applicant was duly executed by Mst. Manohar Koer and was it duly attested? Is the will vitiated on any of the grounds stated in para 9 of the additional plea of the objection lodged by Sethani Prabhavati Koer ?
4. Is the applicant entitled to the grant of a probate?
He decided issue No. 1 against the objectors and issues Nos. 3 and 4 against the applicant, and held that Narendraput Singh was not entitled to the grant of probate as he had failed to prove the execution of the will. On appeal, the learned Judicial Commissioner reversed the finding of the learned District Judge in regard to the execution of the will and recorded a categorical finding that the will (Ex. 1) was a natural will which Smt. Manohar Kanwar would normally have desired to execute and that ''the will was entitled to a probate''. Accordingly he made the following order in the case,--
'I direct that probate of the 'will', dated 20-7-1947, be granted to the appellant by the District Judge with a copy of the 'will' annexed, under the seal of his court in the form set forth in Schedule VI of the Indian Succession Act (Act No. XXXIX of 1925) on payment of the necessary court-fee.'
The learned Judicial Commissioner however, added a rider that
'the probate will be granted only on condition, that the appellant furnishes reliable security in the sum of Rs. 10,000/- to comply with the conditions stated above pledging properties saleable under the present laws within one month of today. It the securities are furnished to the satisfaction or the learned District Judge within the time permitted, the appellant will get his costs from respondents 1 and 3 in this appeal and in the trial court, parties will bear their own costs. In case of default, the papers will be consigned and the parties will bear their own costs in both courts'.
This order was made on July 23, 1953.
2. The required security bond was tiled by Narendraput Singh on August 25, 1953, as August 23, 1953 was Sunday and August 24, 1953 wag a holiday on account of 'Rakshabandhan'. Smt. Prabhavati Kanwar raised an objection that the security had not been filed within time and was not adequate. The learned District Judge held that the security had been filed within the prescribed time limit and was adequate. He accepted it and directed Narendraput Singh to get the bond registered. Against this order of the learned District Judge dated September 7, 1953, an appeal was preferred before the learned Judicial Commissioner who held on December 23, 1953 that Narendraput Singh must have known that August 23 and August 24, 1953, were holidays and that he could not therefore argue that he was prevented from furnishing the security in time by something of which he was not aware. The oral request of the executor to extend the time was rejected and an order was passed that 'the papers will now be consigned in compliance with this Court's order dated 23-7-1953'.
3. Narendraput Singh moved the learned Judicial Commissioner for grant of a certificate under Article 133(1)(a) of the Constitution for leave to appeal to the Supreme Court which was granted on May 1, 1954 on the condition that he furnished security for Rs. 2,500/- for the costs of the opposite party within six weeks from the date of the order. This was not done and the certificate was cancelled On August 19, 1954.
4. On January 21, 1959, the present joint application was filed in the court of the learned District Judge, Ajmer by the two appellants, for grant of probate. The learned judge framed five issues but took up the following two issues for preliminary decision, --
'3. Is the second petition for probate not maintainable in view of the petitioner's non-compliance with the order of the Judicial Commissioner dated 23-7-1953 and the former certificate having been cancelled by order dated 19-8-54.?
4. Is the petition barred by principle of res judicata?'
Both these issues were decided against the petitioners and the application for grant of probate was dismissed on the ground that it was not maintainable; hence this appeal.
5. As the learned District Judge dismissed the appellants' petition for probate on the ground that it was barred by the rule of res judicata, the point for decision in this appeal is whether that order is correct.
6. It has been argued by learned counsel for the appellants that as the learned District Judge passed a conditional order for the grant of probate, that order could not operate as res judicata, and he has placed reliance on Mst. Maina Bibi v. Vakil Ahmed, AIR 1925 PC 63 and Mt. Nawasi Begum v. Mt. Dilfaroz Begam, AIR 1927 All 39 to this connection. Besides, he argued that an executor is entitled to the grant of probate and the bar of res judicata should not be raised in his case. Further, he has pointed out that in his order dated July 23, 1953 the learned Judicial Commissioner fixed a time limit of one month for the furnishing of the security and that as August 23, 1953 was Sunday and August 24, 1953 was a holiday on account of 'Rakshabandhan', it should have been held that the security had been filed within time as it was admittedly furnished when the court re-opened on August 25, 1953.
7. On the other hand, Mr. Mukat Behari Lal Bhargava has argued that the furnishing of the security within one month was a condition precedent to the grant of probate and that the learned Judicial Commissioner rightly held that it had not been furnished within the prescribed time limit. He has also invited attention to the fact that Narendraput Singh filed an application on on January 18, 1954 under Section 148 C. P. C. for extension of the period of one month for furnishing the security, but that application was dismissed by the Judicial Commissioner. So also, it has been pointed out that Narendraput Singh did not avail himself of the leave to appeal to the Supreme Court. In these circumstances, it has been strenuously urged that the present application for probate is not maintainable, and non-compliance with the order of the Judicial Commissioner would operate as res judicata. Reliance has been placed on Alamelammal v. Suryaprakasa Roy Mudaliar, ILR 38 Mad 988 : (AIR 1916 Mad 512(2); Ealipada De v. Dwaijapada Das, AIR 1930 PC 22; Venkataratnam v. Satyavati, AIR 1924 Mad 578; In the goods of Raj Krishna Mukherji 39 Cal WN 1071 and Mohanlal v. Benoy Kishna, AIR 1953 SC 65, to support these arguments. As regards the claim of Smt. Kiran Kuniari for grant of probate, it has been argued that as she is admittedly not the appointed executor, the will could not be probated in her favour in view of the provisions of Section 222 of the Indian Succession Act (Act XXXIX of 1925) (hereinafter called the Act).
8. Proceedings in contentious cases of probate are, under Section 295 of the Act, required to be held, as nearly as may be, in the form of a regular suit according to the provisions of the Code of Civil Procedure. But Section 11 of the Code is not, in terms, attracted to such cases because it is restricted to ''suit'. That section is, however not exhaustive, and the bar of res judicata operates as much on general principles as on the wordings of the section. The rule of conclusiveness of judgments is really one of convenience and not of absolute law for if a judgment is not held to be conclusive, there would be no end to litigation. It is therefore well recognized that an order of a probate court is a judgment in rem, and the findings of that court are res judicata. Apart from the nature of the pronouncement made in probate proceedings which has the effect of determining the status of a person to the world generally, Section 41 of the Evidence Act specifically provides, inter alia, that such a judgment is conclusive proof that any legal character which it confers, accrued at the time when the order of the probate court 'came into operation' and that any legal character, to which it declares any such person to be entitled, accrued to that person at the time when such judgment, order or decree declared it to have accrued to that person.
Moreover, Section 273 of the Act also provides that probate shall have effect over all the property of the deceased, and
'shall be conclusive as to the representative title against all debtors of the deceased, and all persons holding property which belongs to him, and shall afford full indemnity to all debtors, paying their debts and all persons delivering up such property to the person whom such probate or letters of administration have been granted.'
It would thus be seen that so far as the specific provisions of the Indian Evidence Act and Indian Succession Act are concerned, the probate becomes conclusive only when it comes into operation, or is actually granted, and it remains to consider, whether, when the direction of the Court was as in this case, that probate 'be granted'' to the petitioner under the seal of the Court in the form set forth in Schedule VI of the Act on payment of the necessary court-tee, the mere failure to carry out the other direction or fiat of the Court that the petitioner should furnish security within a certain time, resulting in the consignment of the papers to record, could operate as res judicata in the sense of barring the filing of a second petition by the executor for the actual issue of a probate which had been ordered to be granted to him in his earlier petition.
9. In his order dated July 23, 1953, the learned Judicial Commissioner clearly held that (i) the execution of the will had been proved by the witnesses and (ii) the petitioner Narendraput Singh was entitled to probate. These findings are not challenged in the second petition which is before us. In fact the propounded of the will stand by it, and their learned, counsel has argued that these findings are correct and should be maintained. Mr. Mukat Beharilal Bhargava also does not challenge these findings. There is, therefore, no question of a fresh trial of the issues relating to the genuineness of the will and the title of Narendraput Singh to the grant of probate and these earlier findings operate as res judicata so far as their conclusive effect is concerned.
In fact the operative part of the order, which should be considered as the decree of the Court, is also in favour of the appellant, namely that probate should be granted to him in the requisite form on payment of court-fee. There is no denial that court-fee was paid and as such the appellant was, as of right, entitled to the grant even under the previous order. The order for furnishing security, therefore, which was not necessarily warranted by the law, should be deemed to be only in the nature of a supernumerary direction, failure to comply wherewith did not affect the validity of the decree or order for probate already made. Such a direction could be ignored by the Court even at a later stage and probate granted without security, because under the law security may not be at all required from the executor under the will, in whom the testator had apparently confidence for the due administration of his estate. It is highly regrettable that the learned Judicial Commissioner lost sight of this aspect of the matter in calling for or refusing to a accept security and directing the papers to be consigned to record, when the security was actually, in our opinion, offered within time; and we may be permitted to add that much of the complication in the case is attributable to that manifestly erroneous order of the learned Judicial Commissioner.
10. Even all final orders in such cases cannot bar the filing of a fresh-petition. As has been held in Ramani Debi v. Kumud Bandu, 14 Cal WN 924,
''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.'
In coming to this conclusion their Lordships placed reliance on Lilly v. Tobbein, (1890) 103 Missouri 477; Am. St. pp 887.
11. The matter can be viewed from another point. Section 41 of the Evidence Act and Section 273 of the Act provide for the conclusiveness of the probate, and, as has been held in Ganesh Jagannath v. Ramchandra ILR 21 Bom 563
''there is no section which declares that any corresponding result in an opposite sense shall flow from the refusal to grant it'.
It has further been held in that case that
''from a refusal to grant probate it by no means follows that in the opinion of the Court the will propounded is not the genuine will of the testator. It may be based On entirely different grounds. Doubtless, under the provisions of Act VII of 1889 such a refusal, until a fresh application is successfully made, may operate to prevent the executor recovering debts due to the deceased but it has so far as we know no other disenabling effect.'
We find ourserves in respectful agreement with the above observations. The instant case is somewhat stronger. Here the will has been held to be genuine and the appellant found entitled to probate and the specific direction of the Court was that probate be granted to him.
The learned counsel for the appellants has invited our attention to AIR 1925 PC 63. AIR 1927 All 39 in which it was held that even a conditional decree could not operate as res judicata and did not extinguish the plaintiff's right to re-agitate his claim at a future date. In Mt. Maina Bibi's case, AIR 1925 PC 63, the suit of the heirs of the deceased Mahomedan was decreed on condition that they paid to the widow a certain amount as the balance of dower within a certain time. The same was not paid, and the suit was dismissed. The widow gifted away the property mentioning that she had become an absolute owner, but it was held that a subsequent suit by the heirs was not barred as the prior suit did not extinguish their right. Similarly, in Mt. Nawasr Begam's case, AIR 1927 All 39 a suit was brought by the nephew of a Mahomedan for possession of his share because the widow was in possession in lieu of dower. The suit was decreed on payment of a certain sum within a certain time. That sum, was not paid and the nephew was kept out of possession. Later, on a suit by the daughter of the deceased nephew claiming her share of the property, it was held that the earlier decision did not operate as res judicata.
As has already been mentioned, the present case stands on a stronger footing. We are not, therefore, persuaded that the rule of res judicata is applicable in these circumstances to the extent of preventing the filing of a second petition for probate. It is significant that a fair opportunity was not given to Narendraput Singh to fulfil the conditions regarding the furnishing of the security. The security had to be furnished within one month from July 23, 1953, and it was admitted on all hands that August 23, 1953 was a Sunday and August 24, 1953 was a holiday on account of 'Rakshabandhan'. As the Court was closed on August 23, 1953, which was the last date on which the security had to be furnished, it would have been proper to allow Narendraput Singh to furnish the security on the next day afterwards on which the court opened.
12. It may be mentioned that the question whether the fiat of a Judge on an application for probate is equivalent to an actual grant of probate although the probate was not issued owing to the failure of the executor to pay the requisite court-fee, came up for consideration in ILR 38 Mad 988: (AIR 1916 Mad 512 (2)) and it has held that such a fiat was only conditional and was not equivalent to an actual grant of probate within the meaning of Section 187 of the Indian Succession Act (Act X of 1865). We are in respectful agreement with this view. The term 'probate' is defined in Section 2(f) of the Act as
'the copy of a will certified under the seal of a court of competent jurisdiction with a grant of administration to the estate of a testator'
and a mere fiat of the probate court cannot be considered to be sufficient if there is no actual issue of the certified copy of the will to the executor. Besides we find that even when Narendraput Singh failed to furnish the security within the time in which it should have been furnished according to the learned Judicial Commissioner, the 'latter did not dismiss probate Petition but only directed that the papers 'will now be consigned in compliance with this Court's order dated July 23, 1953.'' Consigning a case to the record is not the same thing as dismissing the petition which gave rise to it, and we do not see how that order of the learned Judicial Commissioner could be raised as a bar to the present petition.
13. The conclusion that the normal bar of res judicata should not apply in the circumstances of the instant case, becomes all the more irresistible when it is remembered that both in England and in this country the probate law has always provided for the issue of a second or double probate in certain circumstances. Reference may be made to the following paragraph in Halsbury's Laws of England, third edition,--
''335- Double grants. Where by reason of their number or otherwise the executors appointed by the will do not all prove, power may be reserved to the non-proving executors to prove at a later date. The second grant will then he known as double probate. It is made in general terms, but the value of the estate is sworn as the value of the assets remaining unadministered at the date of the second grant and not as the original value in the first grant.'
In paragraph 336 (ibid) it has further been mentioned that 'where a testator has directed that in a certain event some other person shall be substituted for his original executor, that other person becomes entitled upon the happening of the event to a grant in his own favour. ... ...If an executor becomes unfit to act, there must be a fresh grant....... .Where a grant has been made of the contents of a lost will, a second grant is made upon the production of the original.'
Section 224 of the Act also contemplates the issue of probate to several executors at different times. Besides, the Act mentions the circumstances in which letters of administration may be granted to a legatee even after the issue of probate. Probate and letters of administration are nod granted without the issue of citations to all concerned, including the legatee, and so they all become parties to the proceedings, and, if it was the intention that the rule of res judicata should apply to the extent of barring a second petition for grant of probate as soon as a decision has been taken On the first petition, there would have been no provision for the issue of a double or second probate.
It follows, therefore, that it is not consistent with the scheme of the law that the doctrine of res judicata should apply with all its vigour to probate cases to the extent of barring a second petition in certain circumstances. G.H. Hook v. Administrator General of Bengal, AIR 1921 PC 11 cited by Mr. Bhargava cannot be of any avail to him because, as already stated, there is no question of a re-trial in this case of the issues which had been decided earlier as the finality of the indings on them has not been challenged.
14. The question in controversy can be looked at from one more point of view. The principal duty of a probate court is to decide (i) whether or not a document is entitled to probate as the last will of the deceased, and (ii) who is entitled to be declared as the personal representative of the deceased in order to administer his estate. Aside from these functions of the probate court the purpose behind the grant of probate is that the executor may be declared as a legal representative of the deceased for all purposes and all his property may vest in him as such (Section 211 of the Act). Moreover, the probate of a will when granted establishes the will from the death of the testator and validates all intermediate acts of the executor as such (Section 227 of the Act). Although the property vests in the executor by virtue of the will, and not the probate, the will gives legal recognition to the placing of that property in the executor's charge. The law knows no interval between the testator's death and the vesting of the property in the executor appointed under the will; so much so that if an executor discharges some of his functions as such but dies before the grant of probate, his action will he held to be valid if the will is ultimately held to be proved.
The only limitation on the executor's power is that he may not commence an action before probate in respect of certain kinds of cases. The executor can however, maintain some actions based on possession or his own contracts and there is the corresponding liability to be sued before probate if he has chosen to act under the will. These wholesome provisions are necessary so that the executor may not put off his liability by delaying the probate. When, therefore, the executor gets vested with all these rights and liabilities even before he takes out the probate, it would not be proper to refuse the grant of probate on technical or inconsequential considerations. All that a probate court has to examine is whether the execution and the validity of the will have been proved and whether the petitioner has been appointed as an executor under it. As long as these basic requirements are fulfilled, the Court should not refuse to grant a probate for any minor procedural lapse on the part of the executor.
15. The eases cited by Mr. Bhargava do not lay down a contrary proposition of law and are really of no avail. All that has been held in AIR 1930 PC 22 is that the binding force of a judgment in probate proceedings depends not upon Section 11 C.P.C. but upon the general principles of law and that it operates as res judicata so far as the relationship of the parties is concerned. As has already been pointed out, that relationship is not proposed to be challenged in the instant case. The same is the position in regard to AIR 1924 Mad 578. In 39 Cal WN 1071 the unsuccessful caveator was not allowed to come in again and so that case also has no relevance.
16. It would thus be seen that the learned District Judge erred in dismissing the probate petition on the ground that it was not maintainable because of the earlier decision of the learned Judicial Commissioner. Smt. Kiran Kumar was not an executor under the will and her learned counsel has conceded that probate could not be granted to her in view of the provisions of Section 222 of the Act which provide that probate can be granted only to an executor appointed by the will. There was, however, no justification for refusing to grant probate in favour of Narendraput Singh who was the executor appointed under the will. Although the learned District Judge has disposed of the petition on the basis of his findings on issues Nos. 3 and 4, it is not necessary to remand the case for a decision on the remaining issues, because the question of the execution and the validity of will Ex. 1 and the appointment of Narendraput Singh as executor under if had been decided finally by the judgment of the learned Judicial Commissioner dated July 26, 1953. That decision was taken in the presence of the present contestants, and there is no question of reopening it. We would, therefore, allowthe appeal, set aside the order of the learnedDistrict Judge, Ajmer, dated October 6, 1960,and direct that probate of the will (Ex. 1) ofSmt. Manohar Kanwar shall be issued in favourof Narendraput Singh in the prescribed formwith a copy of the will annexed. The appellantwill be entitled to his costs of both the courts.