W. Comer Petheram, C.J. and Ghose, J.
1. This is a suit to recover a share of joint family property belonging to one Narendra Math Wadadar, deceased, and his brothers, which the plaintiff claims as having devolved upon her under the law of inheritance through her son, Jotendra Nath, also deceased. The said Narendra and his brothers, Rajendra Nath, Mohendra Nath, and Debendra Nath, were members of a joint Hindu family governed by the Dyabhaga, who generally lived for the purposes of business in the North-Western Provinces. He died on the 7th December 1887, leaving a son, Jotendra, then an infant, and his widow, the plaintiff in this suit. Previous to his death he had executed a will bearing date the 2nd November 1887; and the main question which arises in this case is as regards the right construction of that document. The son survived the father only a few months: he died on the 27th June 1888.
2. In the latter part of the year 1889, the defendants, Mohendra Nath and Debendra Nath Wadadar, the brothers of the deceased Narandra Nath, applied to the Allahabad High Court for letters of administration with the will of Narendra Nath annexed. It was opposed by the plaintiff, the widow, but the High Court being of opinion that the applicants were the residuary legatees and entitled as such under Section 19 of the Probate and Administration Act to represent the deceased, granted them letters of administration.
3. Subsequently, this suit was brought by the widow in the Court of the Subordinate Judge of 24-Pergunnahs, claiming the share which belonged to the plaintiff's husband, and which according to her case had devolved on her son, the deceased Jotendra Nath. In the plaint, the plaintiff denied the will, but at the same time asked for a construction of the document, assuming it to be true.
4. The Court below held that under the will there was a bequest by Narendra Nath of his share of the joint estate to his brothers, and that it was his intention that his wife should have nothing else than the maintenance provided in the will; and it accordingly dismissed the suit, except as regards two small sums of money which belonged to the separate estate of the deceased. There was a question raised by the defendant as to res judicata, viz., that the suit was barred by reason of the judgment of the High Court of the North-Western Provinces; but this question was decided against the defendants by the Subordinate Judge.
5. It would be as well to dispose of the question of res judicata in the first place. The learned Counsel for the defendants, respondents, has pressed the point before us; and we must therefore decide it.
6. It has been contended that, under Section 41 of the Evidence Act, the judgment of the Allahabad High Court, determining upon a construction of the will, that the defendants, the brothers of Narendra Nath, are the residuary legatees, is a judgment in rem, and is conclusive as to the legal character which the Court under the Probate and Administration Act found the defendants were entitled to.
7. Section 19 of the Probate and Administration Act (V of 1881) provides that when the deceased has made a will, but has not appointed an executor, or when he has appointed an executor who is legally incapable or refuses to act, or has died before the will has been proved, or when the executor dies after proving the will, but before administering the estate, an universal or a residuary legatee may be admitted to prove the will, and letters of administration with the will annexed may be granted to him.
8. Section 59* of the same Act provides that probate or letters of administration shall have effect over all the properties of the deceased throughout the province in which the same is granted, and shall he 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 to whom such probate or letters of administration is granted; provided that probate and letters of administration granted by the High Courts, established by Royal Charter, have like effect throughout British India.
9. Now, it will be observed that Section 59 expressly lays down in what respect the letters of administration, when granted, shall be conclusive, viz., as to the 'representative title' of the grantee of the said letters against all debtors, etc.
10. Let us now turn to Section 41 of the Evidence Act (I of 1872). It provides:
A final judgment, order, or decree of a competent Court, in the exercise of probate, matrimonial, admiralty, or insolvency jurisdiction, which confers upon or takes away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing, not as against any specified persons but absolutely, is relevant when the existence of any such legal character, or the title of any such person to any such thing, is relevant.
Such judgment, order, or decree is conclusive proof that any legal character which it confers accrued at the time when such judgment, order, or decree came into operation; that any legal character to which it declares any such persons to be entitled accrued to that person at the time when such judgment declares it to have accrued to that person;
that any legal character which it takes away from any such person ceased at the time from which such judgment declared that it had ceased or should cease;
and that anything to which it declares any person to be so entitled was the property of that person at the time from which such judgment declares that it had been or should be his property.
11. The question here arises, what is the legal character that the Allahabad High Court in the exercise of its probate jurisdiction declared that the defendants were entitled to, or conferred upon them? Did it and could it confer upon them any other legal character than what the Probate and Administration Act expressly lays down, viz., the representative title of the grantees as against all debtors, etc., and persons holding property belonging to the deceased?
12. No doubt the Allahabad High Court in determining the question whether the defendants were entitled to letters of administration, as prayed for, had to construe the will, and to consider whether upon a proper construction of that document, the defendants were residuary legatees; but this was only for the purpose of determining the question of 'representative title' as in Section 59 mentioned. The question of the construction of the will was but an incidental question which the Court had to consider in determining whether the defendants were entitled to letters of administration in respect of the estate, of the deceased.
13. It has been held that in a proceeding upon an application for probate of a will, the only question which the Court is called upon to determine is whether the will is true or not, and that it is not the province of the Court to determine any question of title with reference to the property covered by the will (see Behary Lall Sandyal v. Juggo Mohun Gossain I.L.R. 4 Cal. 1. And it is noteworthy that a proceeding under the Probate and Administration Act is not a suit properly so called, but takes the form of a suit according to the provisions of the Civil Procedure Code (see Section 83). That being so, we do not see how the judgment of the Allahabad High Court could be regarded as concluding the plaintiff as to the title to the estate either under Section 13 of the Civil Procedure Coda, or under the general principles of res judicata [see in this connection Barrs v. Jackson 1 Y & C., Ch. 585 and the Duchess of Kingston's case (2 Sm. C. C, 8th ed., 784)].
14. [The Court then proceeded to consider and construe the provisions of the Will.]
* Conclusiveness of probate or letters of administration.
[Section 59.--Probate or letters of administration shall have effect over all the property moveable or immoveable, of the deceased throughout the province in which the same is granted, 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 to whom such probate or letters of administration shall have been granted:
Effect of unlimited probates, &c.; granted by certain Courts.
Provided that probates and letters of administration granted by a High Court established by Royal charter, or by the Chief Court of the Punjab, or by the Court of the Recorder of Rangoon, shall, unless otherwise directed by the grant, have like effect throughout the whole of British India.]