1. This is an appeal from an order made on 29-8-1950, by P. B. Mukharji, J. revoking the probate granted by this Court on 30-9-1921, which was extended on 16-9-33.
2. Benode Lal Ghose, a wealthy inhabitant of Baranagar in the suburbs of Calcutta, acquired by dint of his own labour properties moveable and immoveable of considerable value. He, having no son, adopted a boy of the name of Charu, and made his last will and testament, bearing date 29-7-1912. It appears that the relationship between the adopted son and the father was not good; and in 1917 he intended to change his will. He desired to place his estate to the value of Rs. 75,000/- in the hands of the Administrator-General of Bengal for the purpose of a hospital to be built at Baranagar. He wrote on 29-6-1917, to the Administrator-General to send a man to assist him to make a will. There is a draft agreement of 1917 on the records, which shows that it was prepared for the purpose of enabling the Administrator-General to take possession of certain properties of Benode.
3. On 5-3-1920, Benode was murdered. Charu was tried for the murder, was convicted and sentenced to transportation for life. He served the sentence and came back in 1933.
4. Probate of the will was granted by this Court on 30-9-1921, to the three executors who applied for it, namely Sm. Latikabala Dasi, wife of Charu, Sm. Muktakesi Dasi and Sri Anil Kanto Ghosh, lather of Latika. At the time of the conviction of Charu. Benode's wife was living. She died before the probate was granted. The managing executor was Anil.
5. If Charu was guilty of particide, he could not take any benefit under the will or inherit his father. In that case whatever properties Benode left would devolve on his cousin Girish, who was the next reversioner.
6. Probate having been granted, the executors entered into possession of and managed the estate. It appears that no citation was issued to Girish, the probate being granted on the same date the application for probate was made.
7. Girish died in 1940, without taking any step for revocation of the probate, leaving four sons, the youngest of whom is Anil, who on 14-9-1949, made the application for revocation of the probate. In the petition the petitioner recites the facts I have already shortly stated, and adds that from the correspondence set out in the petition, it would appear that the testator revoked his will and made arrangements for handing over the estate to the Administrator-General, for a charitable purpose; but the purpose did not mature. The petitioner further adds that the testator did not make any will in place of the will that was revoked. He submits that as Benode had revoked his will without making a fresh one, he should be deemed to have died intestate, and the petitioner and his three brothers being the nearest male-relations of the testator, were entitled to the estate of the deceased. The petitioner further adds that Girish did not take any steps for the revocation of the probate as he was more or less a retired sort of man, having a religious frame of mind and not inclined to engage himself in litigation for the purpose of recovering the property of his cousin, the said Benode Lal Ghose.
8. The petitioner, therefore, proceeds on the footing that Benode had revoked his will and died intestate. In the petition, no date is given as to when the previous will according to the petitioner, was revoked, and there is an implied admission that Girish knew of the will and of the probate. It is suggested that he did not take any step to revoke the probate, as being of a religous frame of mind, he had no desire to take the property of his cousin.
9. In the affidavits that were filed in opposition to the petition, it is definitely said that Girish and/or the petitioner and his brothers were well aware of all the material facts; the records that were placed before the Court in the revocation petition, were available to them from 1921: that with full knowledge, Girish and/or the petitioner allowed the executors to obtain probate and proceed with the administration of the estate. It is definitely stated that Girish was fully aware of the probate proceedings.
10. These allegations are not specifically denied by the petitioner, though there is a general denial.
11. The petitioner asks for revocation of the probate on the following grounds: (1) no citation was issued to Girish who was the nearest male relation alive at the death of the deceased; (2) the grant was obtained fraudulently on untrue allegation of a fact essential to justify the grant; (3) the grant was obtained by making a false allegation as to the value of the property left by the deceased; (4) no account was filed by the executors; (5) the grant was obtained by concealing the fad that, the testator had intended to revoke the will; (6) the grant was useless and inoperative. Indeed all the grounds mentioned in the section for revocation are relied upon.
12. On these pleadings, the matter came up for hearing before the learned Judge. A number of witnesses were called. The learned Judge has made the order revoking the probate from which this appeal has been taken.
13. It is common case that no citation was issued to Girish. The citation, therefore, was defective. What is the position then? The matter must be governed by the Probate and Administration Act, 1881, and not by the Indian Succession Act, 1925, though there is no difference between the two Acts on the point under consideration. The probate was granted in 1921 and the Succession Act came into force in 1925. It is an Act which has consolidated the law applicable to intestate & testamentary succession in India. In construing an Act which is a consolidating Act and does not profess to amend or alter the provisions of the Acts consolidated, prima facie, the same effect ought to be given to its provisions as was given to those of the Acts for which it was substituted. -- 'Mitchell v. Simpson', (1890) 25 Q.B.D. 183.
14. The law which governs the case is to be found in Section 50 of the Probate and Administration Act, 1881 (S. 263 of the present Act). That section, so far as it is relevant, runs as follows: 'The grant of probate......may be revoked or annulled for just cause. Explanation - Just cause is: 1st. That the proceedings to obtain the grant were defective in substance; 2nd. That the grant was obtained fraudulently by making a false suggestion, or by cancelling from the Court something material to the case'.
The relevant illustrations to the section are:
'(b) The grant was made without citing parties who ought to have been cited. (c) The will of which probate was obtained was forged or revoked.'
In this case the petitioner sets up two grounds for revocation. The first comes within illustration (b), and the second within (c). The first is that the probate was obtained without citing a party who ought to have been cited. The second is that the will of which probate was obtained had been revoked.
15. In -- 'Ramanandi v. Kalawati', 55 Ind. App. 18 (PC), which was also an application for revocation of probate, two grounds were taken: (1) the grant was made without citing parties who ought to have been cited, and (2) the will was a forgery. Lord Sinha delivering the judgment of the Board observed: (p. 24).
'It is apparent that the plaintiff in this case set up both these grounds for revocation. The first issue as framed comes under illustration (b) and the second issue under illustration (c);
If these issues were tried separately and the plaintiff succeeded on the first issue, that in itself would be sufficient for revoking the probate, but it would still be open to the defendant to prove the will and, if she succeeded, the probate would stand.
If on the other hand the plaintiff failed on the first issue, that would not preclude her from proceeding to prove her second ground -- namely, that the will was forged, and the probate would stand or fall, according to the result.
It is obvious that the question of onus of proof is therefore of great importance in this case, and the District Judge as well as the High Court on appeal rightly lay stress as to the onus on each of these two issues, which might have been tried separately but were not so in fact, as evidence was given by each party in support of their respective cases on both issues together and not separately. Their Lordships agree with the Courts below, that in the circumstances of this case neither party was prejudiced by the procedure adopted.'
In the case before us also the same procedure has been adopted. Both the issues have been tried together. We do not think, however, that any prejudice has been caused to the parties.
16. The learned Judge instead of coming to a finding as to whether the will had been revoked or not, has found that the testator had intended to revoke the will. The relevant portion of the judgment is as follows: 'The true scope of an application for revocation under Section 263 of the Succession Act should always be borne in mind. It is not an application to prove that the will in fact was revoked. Nor does any question of genuineness of Will arise for consideration until the Court has decided that the probate must be revoked on one or more of the grounds specified in that section. In my view the only matter for consideration upon an application for revocation of probate is, whether the applicants have made out a just cause for revocation and the application cannot be thrown out on the ground that the evidence adduced by the applicant was not sufficient to prove actual revocation of the will or throw doubt on the genuineness of the will. I hold on the facts of this case and on the evidence already adduced that the grant was obtained fraudulently by concealing from the Court the material fact of the intention of the testator to revoke or alter the terms of the will. Whether in fact the will was revoked or its terms were altered will be a matter for final determination when on revocation of this grant, fresh proceedings are instituted for grant after due citation.'
17. In this case the petitioner has succeeded in proving -- nay, it is admitted by the parties concerned -- that Girish was not cited. It is common case that Charu, being guilty of patricide, could not take any benefit under the will nor could he succeed to the property of his father. Charu being left out of consideration, if the testator is considered to have died intestate his properties would devolve on Girish subject to the life interest of Benode's widow, which of course ended with her death. If, on the other hand, the will had not been revoked, Charu could not take any benefit under the will and to that extent there would be intestacy, and Girish would be entitled to the benefit which was reserved for Charu in the will.
18. There can be no doubt, therefore, that Girish was entitled to citation and this is conceded by the Counsel for the appellant. The proceeding to obtain the grant, therefore, by reason of non-citation of Girish was defective. The probate may be revoked on this ground. But does it follow that the Court must revoke the probate? The Section says that the grant of probate...... may be revoked for 'just cause'. This section confers a discretion on the Court to revoke the grant on any of the grounds specified in the section. That discretion has to be exercised judicially on well-known principles. It does not follow that because there is a ground, the Court must revoke the probate. Take an illustration. A, a necessary party is not cited. He comes to Court for revocation of the grant. He admits that the will was duly executed and is a genuine will. Here there is ground for revocation; because the necessary party was not cited. But will the Court revoke the grant? Certainly not. It would he a farce to revoke the grant and call upon the executor to prove the will -- a will which is admitted by the person who asks for revocation of the probate, to be a genuine will, duly executed.
19. It seems to me on the authority of the Privy Council case that where the two issues are tried together, and it is proved that a necessary party was not cited, but the Court on the evidence before it, comes to the conclusion that the will was duly executed and has not been revoked, the Court would not revoke the grant. Such revocation would be worse than unprofitable.
20. In the case before us all that has been said, proved, and found is that the testator had intended to revoke the will. Even there we entertain a genuine doubt as to whether the learned Judge arrived at a correct finding. In the letter dated 29-6-1917, of which I have made an earlier reference, the deceased no doubt expressed an intention to make a new will, but the subsequent letters do not prove the continued existence of that intention: On the contrary, prove the reverse.
21. Let us assume, however, (for the sake of argument) that the testator had the intention to revoke the will. Did he revoke it? The answer must be in the negative.
22. Section 57 makes provision for revocation of an unprivileged will. Section 59 provides for the revocation of a privileged will. Under Section 57 there are four modes in which an unprivileged will or codicil, or any part thereof, may be revoked: (1) by marriage, (2) by another will or codicil duly executed. (3) by writing declaring an intention to revoke, and duly executed, (4) by the burning, tearing, or otherwise destroying the will or codicil toy the testator, or by some other person in his presence and by his direction, with the intention of revoking the same.
23. In this case there is no evidence at all that the will in question was revoked by any of these methods. All that is said and proved is that Benode had an intention to revoke the will. But the mere intention to revoke does not revoke a will. A man making a will may subsequently change his mind. He may think that he should change the will and make another will. But he may not do anything at all. Until he revokes the will, however strong the intention may be, the will is not revoked. In this case the deceased after he had thought of making a new will had at least three years time to revoke his earlier will. He was murdered on 5-3-1920. But ha did not do anything to revoke the will. There is nothing to shew that he adopted any of the modes by which a will is revoked.
24. The allegation in the petition and the evidence before us make it quite clear that the will which is alleged to have been revoked was a genuine will, duly executed and registered. The allegation in the petition that the will was revoked implies that the will had been duly executed. On the evidence, the learned Judge would have been justified, and we would be right in holding that there was a duly executed will and it has not been revoked. If that is so, there is no point, in revoking the grant. In a case like this it would be a perverse exercise of discretion to revoke the grant. Nothing is gained by revoking it and asking the executors to prove the will anew, the genuineness and the execution of which are admitted by the person who wants the will to be proved in his presence.
25. On this consideration alone, we would be prepared to set aside the order of the learned Judge. But there is another point on which we think the learned Judge has gone wrong. On the pleadings, it would not be unreasonable to hold that Girish had knowledge of the probate and of the executors being in possession of the estate of Benode. There is an allegation in the affidavit of Achinta (para 9) that Girish was fully aware of the probate proceedings. The petitioner, though he deals with the affidavit of Achinta, does not specifically deny this allegation. If, therefore, we hold that Girish knew of the probate proceedings and did not intervene, Girish could not challenge the grant. In --'Wyteherley v. Andrews', (1871) L. R. 2 P. 327, Lord Penzance said:
'if a person, knowing what was passing, was content to stand by and see his battle fought by somebody else in the same interest, he should be bound by the result, and not be allowed to re-open the case. That principle is founded on justice and common sense, and is acted upon in courts of equity........'
If Girish knew what was passing, and stood by, he should not be allowed to reopen the case.
26. But as the probate was granted on the day the petition for probate was presented to the Court, we will assume that Girish did not know at any material time, that a petition had been made for the grant of probate. But there is absolutely no doubt that Girish in 1933 and thereafter fully knew that the probate had been granted. That is proved on the admission made in the petition; that is proved on the pleadings and Exs. 1 and 2; on the evidence of Pannaial. Chatterjee, an advocate of this Court and of Bhutnath Kerr, a son-in-law of Girish, It appears from the evidence of Panna Lal Chatterjee that after Charu had come out of the jail, he had a talk with Girish regarding the letter's right in the property of the deceased. In Ex. 2 which is the draft of an agreement made by Panna Lal under instructions of Girish, and which was intended to be executed by Girish, and the two ladies who were given life interest in the estate of the deceased by this will, there are recitals to show that Girish knew at least at that time that probate had been granted and the executors were in possession of the estate.
27. The learned Judge has not accepted the evidence of Pannaial Chatterjee. (His Lordship discussed his evidence and concluded:) His evidence seems to us to be that of a truthful witness and is corroborated on the material points by other evidence on record. We are not unaware that the Judge of first instance should not ordinarily be upset on a question of fact, because first and last and all the time, he has the great advantage, which is denied to the Court of appeal, of seeing the witnesses and watching their demeanour. But he is not the possessor of infalliability &, like other tribunals there may be occasions when he goes wrong on a question of fact and there is certainly jurisdiction in the Court of appeal to reconsider the facts in the way they do reconsider them and to come to an opposite conclusion from that arrived in the Court below. -- 'Powell v. Steatham Manor Nursing Home', (1935) A. C. 243. After a careful consideration of the probabilities, we are unable to agree with the learned Judge that Pannalal Chatterjee's evidence should not be believed.
28. Look at the probabilities. Girish was a cousin of Benode. Girish's wife was a cousin of Benode's wife. After Benode's death it is quite natural that Girish would call upon the widow of Benode. That is common practice amongst the Hindus. There must have been some Sradh of Benode. He was a rich man. There is no reason why Girish should not Know of it. The probability is Girish attended the Sradh. There is no evidence before us to show that Girish was on inimical terms with the deceased or on such terms that invitation would be impossible. Girish further knew that Charu had been convicted of the murder. Girish knew that he was the next reversioner. He knew that the executors were in possession of the estate of the deceased. He knew that the probate of the will had been granted. In 1933 he himself was negotiating for the sale of his interest in the property of the deceased to the ladies who took life interest in the estate under the will. He had also the means of knowledge of the records in the probate proceedings. He died in 1940. Hs did not take any step to revoke the will during all those years. It is alleged he was a retired sort of man. He did not care for the property. But he knew all right how to negotiate for sale of his interest in the estate of the deceased. We cannot accept the petitioner's story that his father was such a religious man that he would not care for money.
29. Girish did not take any step and allowed the executors to remain in possession of the estate of the deceased. Neither the petitioner took any step before 1949. What is the position? Has the petitioner lost his right by acquiescence?
30. In -- 'Shyama Charan v. Prafulla Sundari', 19 Cal W N 882, a distinction has been made between a case where the acquiescence alleged occurs while the act acquiesced in is in progress and another where the acquiescence takes place after the act has been completed; reliance is placed for the distinction on the observation of Lord Cottenham in -- 'Duke of Leeds v. Earl of Amherst', (1846) 2 Phillips 117. The observation was made in connection with a claim for compensation for equitable waste by a tenant for life while in possession and is as follows:
'If a party, having a right, stands by and sees another dealing with the property in a manner inconsistent with that right, and makes no objection while the act is in progress, he cannot afterwards complain. That is the proper sense of the word acquiescence. In that sense, however, there is no acquiescence here, for the act was done when the present duke was a minor, and when, if he had knowledge or means of knowledge. --and he does not appear to have been of an age for that --nothing of acquiescence can be imputed to him. The defence, therefore, which is really intended to be set up, is not acquiescence, but release or abandonment of the party's right. For that purpose, however, it is not only necessary to show that the plaintiff knew of the acts of waste having been committed, but that he knew of the rights which they gave him against his father, and that having such knowledge, he did some act amounting to a release of that right.'
In that case Lord Cottenham has not said that there is acquiescence after the act has been completed. He said acquiescence was not the term which ought to be used.
31. There can be no doubt that in this case Girish was entitled to controvert the will; and, to call the probate in and put the executors on proof. There is no specific time which limits a party. There are many instances in which the Court has allowed the probate to be called in after a long time. That may be done with cause shown. But it cannot be held that it may be done under any circumstances. It would be contrary to reason and every; principle of justice. Where a party interested! to oppose the grant has been in a situation which rendered it impossible or difficult for him to have proceeded earlier; e.g., if he had been absent from the country, a minor, or labouring under imbecility, he may be admitted. But without reason, and where there are such strong reasons as there are here to show that he was not in such a state of incapacity as to have prevented him, and further that he could not be ignorant of all the circumstances relating to the deceased, the case is different. See -- 'Hoffman v. Norris and White', 2 Phill. 230.
32. Those who require the active interposition of the Court to revoke the probate, should use due diligence after there has been such notice or knowledge as to make it inequitable to lie by. In -- 'Erlanger v. New Sombrero Phosphate Co.', (1878) 3 A. C. 1218 at pp. 1279-80, Lord Blackburn made the following observation :
'And any change which occurs in the position of the parties or the state of the property after such notice or knowledge should tell much more against the party 'in mora', than a similar change before he was 'in mora' should do. In -- 'Lindsay Petroleum Co. v. Hurd', (1874) L R 5 PC 221 at p. 239 it is said: 'The doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct done that which might fairly be regarded as equivalent to a waiver of it, or where, by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted in either of these cases lapse of time and delay are most material. But in every case if an argument against relief, which otherwise would be just, is founded upon merely delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two cir cumstances always important in such cases are the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as (?) relates to the remedy.' i have looked in vain for any authority which gives a more distinct and definite rule than this; and I think, from the nature of the inquiry, it must always be a question of more or less, depending on the degree of diligence which might reasonably be required, and the degree of change which has occurred, whether the balance of justice or injutice is in favour of granting the remedy or withholding it. The determination of such a question must largely depend on the turn of mind of those who have to decide, and must therefore be subject to uncertainty; but that, I think, is inherent in the nature of the inquiry'.
33. In -- 'Watt v. Assets Co. Ltd.', (1905) A. C. 317, where a company was wound up and contributories were discharged from further liability on a composition and a period of twenty years supervened, it was held that every intendment must be made in favour of what was done twenty years before as having been lawfully and properly done. Lord Halsbury at p. 329 said:
'It appears to me that the matter rests not upon any question of technical law, but upon broad common sense, and especially upon these two principles -- that at this distance of time every intendment should be made in favour of what has been done as being lawfully and properly done, and that the persons who are now insisting upon these rights have lain asleep upon their rights so long as a matter of fact we know that witnesses have perished, and the opportunities which might have been had if the question had been earlier raised, have passed away. We are asked at a distance, in the one case of twenty years, and in the other case of twenty two years, to rip up a transaction which had apparently been completely disposed of.'
Again at p. 333 his Lordship observed:
'I should be content to rest my judgment on the language of the Lord Ordinary himself, in which, on both occasions, he has pointed out, I think with great force and accuracy, the result that ought to follow from the absence of evidence which has been the fault of those who are the pursuers here -- that is to say, they have lain by upon their supposed rights all this time, during which time witnesses have died and the means of explanation have disappeared also to an extent which, to my mind, renders it impossible, or at all events extremely inexpedient as a matter of law and administration, to allow these things to be ripped up at this distance of time, when both the opportunities of explanation have gone by and when witnesses have passed away.'
34. It is unnecessary to refer to the other cases cited at the Bar. Where a matter is left to the discretion of the Court, it is impossible to lay down any hard and fast rule. The Court has to exercise the discretion on the facts of the case and the Court in exercising the discretion must follow sound principles of law. I have quoted the observations of the masters not because each single observation applies to the facts of the case; but to get at the principle on which the case should be decided. It is well known that observations made in a case have reference to the facts of the case; but the observations that I have set out above are of universal application. They are based on broad principles of justice and commonsense.
35. We are satisfied that in the circumstances of the case it would be unjust to set aside the grant after such a lapse of time. It is quite true that there is no special limit of time as to laches. But the determination of a case must depend upon the circumstances of each particular case and the conduct of the person who seeks to set aside a transaction after a long period is a circumstance which must be taken into account. In this case we do not find any reason why Girish did not make an application for setting aside the grant. No reason has been given as to why the petitioner did not take any step before. The attesting witnesses are all dead. The managing executor is dead. He probably, would have been able to give valuable evidence as to the conduct of Girish and as to whether Girish knew about the petition which was then intended to be or was filed, etc. etc. It seems to us that it will be extremely inexpedient as a matter of law and administration to allow this thing to be ripped up at this distance of time, when both the opportunities of explanation have gone by and when witnesses have passed away.
36. On these considerations, we are unable to hold that in this case the Court should exercise its discretion and revoke the grant, though initially the probate proceedings were defective. The appeal is allowed and the petition for revocation of the probate dismissed with costs here and below. Certified for two counsel.
37. I entirely agree andhave nothing to add.