1. The plaintiff sues to set aside a decree obtained by defendant No. 1 in Civil Suit No. 226 of 1887 on the Original Side of this Court as having been obtained by fraud. In that suit, the defendant No. 1 had sued (1) Muni Singh and (2) his half-brother, Ghulab Singh, upon a promissory note jointly executed by them. Ghulab Singh died on January 25th, 1888, while the suit was pending, after which his half-brothers, the abovementioned Muni Singh and Govindh Singh, were brought on the record as his personal representatives and a decree passed against them accordingly, It appears that Ghulab Singh was reported to have left a will, and, in February 1888, the solicitors of defendant No. 1 endeavoured to ascertain from the four executors named therein whether they intended to apply for probate. Nothing was done, however, to prove the will. Two of the executors were unwilling to come forward and one died; the brother Muni Singh took no steps. The result was that the two half-brothers were brought in as personal representatives and a decree by consent passed against them. The effect of this procedure was to ignore the plaintiff the mother of deceased, altogether, and, as Ghulab died unmarried and was divided from his half-brothers, his mother was his proper personal representative in the absence of a will. The decree was passed on August 2nd, 1888.
2. The plaintiff then sued Muni Singh and Govindh Singh in September 1888 (Civil Suit No. 195 of 1888) to establish that she was entitled to the property of her late son. Her step-sons replied setting up the will, but allowed the suit to be decided ex parte against them on trial. This decree was passed on 11th January 1889.
3. The plaintiff then, on 27th July 1889, brought this present suit to set aside the decree obtained by defendant No. 1 in Civil Suit No. 226 of 1887. The defendants (defendant No. 2 being the purchaser of some of the property in execution) resisted the claim on the ground that, in consequence of Ghulab having left a will, plaintiff is not his personal representative, and, therefore, cannot sue, and, further, that there had been no fraud or collusion in obtaining the decree. The learned Judge held that it was proved Ghulab had left a will, though no probate had been taken thereof, and hence that plaintiff, not being an executrix, had lost her position of legal representative. He further held that there had been no fraud or collusion in obtaining the decree, and that plaintiff had had knowledge of the proceedings in that suit (Civil Suit No. 226 of 1887). Against this decree the plaintiff appeals.
4. The first point argued in appeal before us is that defendant No. 1 is precluded by the terms of Section 187 of the Succession Act from proving the existence of the alleged will, since no probate has been taken thereof. By Section 2 of the Hindu Wills Act (XXI of 1870) the provisions of Section 187 have been made applicable to the wills of Hindus in the town of Madras, see Shaik Moosa v. Shaik Essa I.L.R. 8 Bom. 241, and it is contended that, until probate, has been granted to some one, the alleged existence of the will should be ignored. The decree has only been obtained against the brothers of the deceased as his personal representatives and not as executors, and since plaintiff has established her rights as against them, it is contended she can claim to have the compromise entered into by them set aside.
5. It is admitted that, assuming the existence of a will, the decree has not been obtained against the right persons as legal representatives. The question, however, is whether the plaintiff can claim to have that decree set aside.
6. In the case before us Muni Singh applied for probate in October 1888, but has not prosecuted his application. The plaintiff denied that any will was executed at all, and practically no one is seeking probate. It was urged that the defendant No. 1, as a creditor, could have asked for letters of administration with the will annexed, and should have done so; but this is a mistake since Section 206 of the Indian Succession Act has not been extended by the Hindu Wills Act to the town of Madras. Had the estate been that of a European British subject, the case would have been different. If, therefore, the creditor is precluded from bringing in any one as the personal representative of the deceased, until some one has proved his will, his just claims would be liable to be defeated by the simple expedient of refusing to apply for probate until the debt had become barred. This certainly cannot have been the intention of the law. It appears to us that, though the executors can establish no right without taking probate, the existence of the will cannot be ignored for all purposes whatsoever.
7. We are of opinion chat the decision in Prosunno Chunder Bhuttacharjee v. Kristo Chytunno Pal I.L.R. 4 Cal. 342 is applicable, and that the persons, who took possession of Ghulab's estate upon his death, were liable to be treated by the creditor (first defendant) as his representatives even though themselves liable to be dispossessed by the executors on taking out probate. That Muni Singh and Govindh Singh were in possession of deceased's estate is evident from plaintiff's own suit No. 195 of 1888, and, since first defendant's decree is not a nullity, it is open to him to prove that Ghulab left a will, and, therefore, that plaintiff is not a person who can claim to set that decree aside.
8. As regards the execution of the will by Ghulab, we are of opinion that the finding of the learned Judge is right. The fact has been proved by the writer and one attesting witness, and we see no reason to doubt the evidence of defendant No. 2, that he heard of the existence of the will from plaintiff herself, who procured for him the copy, Exhibit II. That first defendant was willing to help plaintiff in a suit against her stepsons, provided his own debt was discharged seems to us to prove nothing. All the executors refused to prove, and the first defendant was naturally willing to accept payment from any member of the family who would pay him. All the circumstances of the case tend to indicate that the plaintiff and her step-sons have since colluded to deprive him of the fruits of his decree.
9. On these grounds we confirm the decree and dismiss the appeal with costs.