1. Appellants claiming to be executors appointed by the Will of one Kandasami Pillai, deceased, applied be the District, Court of Madura on 2nd July 1890 for probate of the said Will. Their petition was returned by the then Acting District Judge Mr. Twigg, on the ground that Act V of 1881 (the Probate and Administration Act) was not applicable to the District. This order, it is now admitted, was erroneous. In August 1892, appellants again applied to the District Court for probate of the said Will. The late District Judge of Madura, Mr. Weir, has refused their application on the ground that in the course of certain proceedings before Mr. Twigg under the Guardian and Ward's Act, (Act VIII of 1890) and the Succession Certificate Act (Act VII of 1889) intermediate between the former and the present applications for probate, it has been decided that the Will propounded is not a genuine Will, and that by virtue of this decision, the question as to the genuineness of the Will is resjudicata and cannot be re-opened in the present proceedings.
2. It is conceded by the respondents' Vakil that the proceedings under the Succession Certificate Act could not operate as a bar to the present application for probate. Section 25 of the Act expressly provides that no decision under the Act upon any question of right between any parties shall be held to bar the trial of the same question in any suit or in any other proceedings between the same parties.
3. It is only upon the ground that this is a proceeding between the same parties as that under the Succession Certificate Act that the bar of res judicata can be pleaded and this section expressly removes it. But the decision of Mr. Twigg as to the genuineness of the Will was passed with reference to the proceedings pending before him under the Guardian and Ward's Act as well as to those under the Succession Certificate Act. It is necessary therefore to consider whether treating the decision as passed under the former Act it is a bar to the present application for probate. The proceedings under that Act so far as they affect the question were as follows:-
On the 22nd of July 1890 the father of the widow of Kandasami Pillai applied to the District Court on her behalf for an order appointing her guardian of the person and property of the minor son of Kandasami Pillai. Appellants put in a counter-petition setting up their right to guardianship under the Will. In the course of the proceedings it was admitted that the Will gave them no right to guardianship of the boy's person and an order was passed by consent appointing the widow, guardian of the person. On 1st October 1890, Mr. Twigg having taken evidence passed the decision finding the Will to be a forgery apparently upon the petition of the widow's father and the counter-petition of the appellants. Subsequently he held that the widow was not the fit person to be entrusted with the guardianship of the property, and he appointed her father. Treating the decision as passed upon the petition and counter-petition under the Guardian and Wards Act an adjudication as to the genuineness of the Will was necessary, for the Will purported to constitute appellants guardians of the boy's property and if this appointment was valid the court was precluded by the Act from appointing any other guardian.
4. But it is urged that the decision of Mr. Twigg was only a, decision inter partes, and cannot therefore affect the present application for probate, the adjudication upon which will have the effect of a judgment in rem and will affect not only the parties to the previous proceedings but the beneficiaries under the Will and the world at large. It is stated that the son of the alleged testator is a deaf mute and therefore possibly but for the Will might take no share in his father's property and that he is therefore vitally interested in maintaining the genuineness of the Will. It is also said that certain charities are interested in the Will. But apart from any considerations peculiar to this particular case, we are of opinion that upon general principles the decision of Mr. Twigg in the proceedings under the Guardian and Ward's Act does not operate to make the question of the genuineness of the Will res judicata, so as to bar the present application for probate. By. Section 41 of the Evidence Act a final judgment, order or decree of a Court of Probate has the effect of a judgment in rem and is conclusive proof (inter alia) that any legal character which it takes away from any person ceased at the time when the judgment declares that it ceased.
5. The judgment of the Probate Court refusing probate takes away from the executors named in the Will the legal character of executors and from the legatees and beneficiaries their legal character as such, and this result is final as against all persons interested under the Will. It is admitted that if the decision of Mr. Twigg had been in favor of the genuineness of the Will, it would still have been open to the counter-petitioners in the probate proceedings to question it. It seems impossible to argue that because the decision was the other way it is conclusive. It is argued that the judgment of a Court of Probate refusing probate is not a judgment in rem, but only a judgment granting probate is. We can see no good reason for any such distinction.
6. 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 paries cannot be pleaded in bar of an investigation in the Probate Court as to the factum of the Will propounded in that court.
7. There are other reasons why the judgment of Mr. Twigg should not be held to make the question of the genuineness of the Will res judicata in the present proceedings. For instance, the subject-matter of the former application was the guardianship of the property of the minor son of the alleged testator and not the estate of the testator as in the probate proceedings. But we prefer to rest our decision upon the general principle that the only judgment that can be put forward in a Court of Probate in support of the plea of res judicata is a judgment of a competent Court of Probate.
8. We must reverse the order of the District Judge of 31st August 1892, and direct him to restore the application for probate to the file and proceed to dispose of it according to law. Costs of this appeal to be dealt with in the final order.