Ameer Ali, J.
1. On the 8th of May 1899 Prosonnomoyi Dasi applied for probate in respect of the will of a Hindu lady name Bhuggobutty, There were various proceedings anterior to that application, but it is not necessary to refer to them for the purposes of the present judgment It is enough to state that upon Prosonnomoyi applying, as aforesaid, two persons named Adhore Chunder Dutt and Gopal Chunder Dutt entered a caveator against the grant of probate.
2. The case was, accordingly, set down as a contentious cause and came on for hearing on the 8th of February last. The trial lasted over a considerable number of days, and the propounder's witnesses were cross-examined at enormous length, no detail was left unquestioned, and every single matter open to attack or criticism was subjected to a searching cross-examination.
3. On the 23rd of February Akhoy Kumar Mitter, attorney for the caveator, Gopal Chunder Dutt (his brother Adhore having died previously), was examined, and his cross-examination had proceeded to a certain extent when the case was adjourned.
4. Before his evidence had commenced Mr. Mitter, who was leading Mr. Chaudri, stated that was his last witness, and that, save and except a person with whom some other will was alleged to have been deposited, he would not call any other witness.
5. The case came on for further hearing on the 27th of February, and on that day, on its being called on, Mr. Mitter said as follows:
I have had an opportunity of going through the evidence, and of considering what has fallen from the Court, and, having regard to that, I have advised my client to withdraw the caveat, and I mentioned this to Mr. Chakravarti, who has stated that he will not press for costs.
6. With regard to that Mr. Chakrvarti said: 'I did so as I am appearing for a trustee, and the chance of getting costs from the people before the Court on the other side is so small and may put the estate to more expense, that I thought it advisable not to press for costs.
7. Asks for probate to his client. Upon that I passed the following judgment:
Mr. Mitter in the exercise of his discretion has, in my opinion, very properly taken a course on behalf of his clients, which I was certain on consideration would commend itself to him, and I thoroughly approve of the course taken. He has withdrawn the caveat on behalf of his client, and Mr. Chakravarti for the reasons given by him and minuted does not press for costs. I approve also of the course taken by him.
The caveat being thus withdrawn I am not called upon to express my opinion upon the evidence given on behalf of the caveators, but I am entitled to say that on the evidence given by the propounders, which I consider reliable and satisfactory, the factum of the will is conclusively established. I my add that it being the question of the estate of a deceased person, had I felt that the evidence of the caveators was such as to raise any doubt in my mind as to the factum of the will, I should have hesitated before giving effect to application for withdrawal of the caveat, but my opinion on the evidence, pear as it has proceeded, is so clear that, approving, as I do, of the course by learned Counsel for the caveators, I unhesitatingly pronounce in parer of the will and direct that probate do issue to the propounders.
8. On the very same day through the very same attorney, who was acting Gopal Chunder Dutt and the widow of Adhore Chunder Dutt, Roma Nath who had given evidence on behalf of Gopal Chunder, filed a fresh extent against the grant of probate. Naturally the attorney for the plaintiff tested against the proceeding and wrote a letter which runs as follows: 'I understand that you, acting as attorney for Babu Roma Nath Addy, have filed in caveat against the grant of probable to my client. All that I can point out you is that it is a gross abuse of the order of the Court. Babu Roma Nath Addy had notice of the application long ago, and he had given his evidence in Court and the case lasted for so many days, and then at last when the order as made, he files a caveat.
However I must ask you to file your grounds in support of caveat at (sic) so that the case may be heard and decided without delay.
9. In reply to this protest Akhoy Kumar Mitter, on the 1st of March, wrote letter which need not be set out in full as the commencing passages are sufficient to give an indication of its character.
My client does not see how he is prevented from questioning the genuineness of the will, because his cousin, Gopal Chunder Dutt, and the wife one of his deceased cousins, Srimati Shusila Coomaree Dassee, chose to Withdraw the caveat entered by them in the above goods.
10. Something was said about the proceedings being some what hurried. was surprised at this observation as the Counsel who made it knew from His experience how unadvisable delay in a matter like this is, and if any one expected that I should allow this case to be hung up for a year or eighteen months I can only say he was very much mistaken.
11. The caveat of Roma Nath Addy having been filed through Babu Akhoy Kumar Mitter, regarding whom I shall say a few words before I finish, a change was made to another attorney, the object of which is obvious. At this stage it is desirable, that I should state what the position of Roma Nath Addy was in the case which had been heard by me for such a length of time.
12. Adhore Chunder Dutt and Gopal Chunder Dutt were the two sons of a sister of the deceased Bhuggobutty Dasi. Roma Nath Addy alleged himself also to be a son of another sister, and stated in his evidence which he gave in Court in support of the caveat, and in denial of his signature to the alleged will that he, Gopal Chunder Dutt and Adhore Chunder Dutt, lived all along in the house of Bhuggobutty Dasi. He stated that he knew of the proceedings which had been taken by his cousins, and that, inasmuch as his interests were assured by their action, to paraphrase his language, he did not think it necessary to file any caveat. He also pleaded want of means. In the course of Gopal Chunder Dutt's deposition, which I am entitled to take into consideration in dealing with the whole matter and with the bond fides of the present application, it appeared beyond a shadow of doubt that not only was Roma Nath privy to the proceedings taken by his cousins--not only was he cognisant of all that was being done, but that he was actively associated with them and managed the case and instructed the attorney.
13. One word more before I go on to the legal position this man takes up here.
14. When I stated in my judgment that 'the caveat being withdrawn I am not called upon to express any opinion on the evidence given by the caveator I had in my mind the course which had the case proceeded to a conclusion(sic) intended to take with regard to the witnesses; for my opinion being as the progressed, and as I scrutinised the testimony and demeanour of witnesses for the caveator that some of them at least had grossly (sic) themselves, I intended directing their prosecution, and I did not mean to (sic) there. I also intended calling upon the attorney to explain on affidavit (sic) conduct in holding communication with a witness whom he knew to be (sic) witness of the propounder, and whom he allowed to come into his office in or (sic) to get a statement.
15. But as Mr. Mitter, very properly in my opinion, came to the conclusion that he should advise his client to withdraw the caveat, I did not consider (sic) necessary to proceed further. I may add that, if the case had proceeded to the end, one of the persons against whom I should have ordered proceedings to (sic) taken in the Criminal Court would have been the present applicant.
16. I mention this only to explain the reserve with which I dealt with the evidence of the caveator, not that I had any doubt, but simply to abstain from giving expression to the distinct impression I had formed. The case for the will was proved incontestably per testes.
17. As I said before the witnesses for the plaintiff were cross-examined most minutely and elaborately. No possible ground was left untouched.
18. At first Mr. Chaudri and Mr. Sinha appeared for the caveators. At the second stage they were represented by Mr. Mitter and Mr. Chaudri, and the names of those learned gentlemen are enough to carry a guarantee that the case was conducted with ability and vigour. What are the grounds on which Roma Nath Addy now comes in to reopen the entire proceedings that ended on the 27th of February last?
19. In paragraph 5 of his affidavit, originally filed on the 7th of March 1906 his ground is thus stated:
I further say that in consequence of a caveat having been entered by Adhore Chunder Dutt and Gopal Chunder Dutt, two of the sons of Srimatti Rajomoyi Dassi, who is another sister of the said Srimatti Bhuggobutty Dasi against the grant of probate to the said Prosonnomoyi Dassi of the said document as the will of the said Srimatti Bhuggobutty Dasi, I did not consider it necessary to file a caveat on my own behalf, until I found that for reasons unknown to me, and on account of the death of the said Adhore Chunder Dutt the caveat filed on behalf of the said Adhore Chunder Dutt and Gopal Chunder Dutt was withdrawn.' There can be no doubt that the above statement is false.
In his affidavit Roma Nath says nothing as to when or how he came to know of the withdrawal of the caveat. Nor does he venture to say that he was prevented from intervening in the action, the moment he learnt of the course Gopal Chunder was going to take. It is a bare statement that the former caveat having been withdrawn, he now comes forward to contest the will. Yesterday, the 26th of March, fully a month after the withdrawal of Gopal Chunder's caveat he puts in an affidavit, in the 2nd paragraph of which he states as follows: I further say that some days after my evidence was concluded I heard from the said Gopal Chunder Dutt and Adhore Chunder Dutt that they had withdrawn their caveat, but I was not aware what transpired between the date of my examination and the withdrawing of the said caveat or the reasons which led to the said withdrawal.
20. It may be noticed by the way that Adhore Chunder Dutt had been dead long before the case came on for hearing.
21. This is sufficient to show the recklessness with which he has sworn to facts in his affidavits.
22. He states there are certain witnesses he would have called but whom the persons conducting the proceedings did not call.
23. It is perfectly clear on the authorities, both here and in England, that, if a party is cognisant of proceedings for letters of administration or probate, and chooses to stand by and allow the proceedings to be concluded in his absence, he will not be allowed to come in afterwards and have the grant revoked or the proceedings reopened. In Newell v. Weeks (2 Phil., 224) Sir John Nicoll stated exactly the principle on which matters of this nature are dealt with, and that case has been accepted as an authority both in England and here.
24. That learned Judge referring to two cases set out in his judgment held that inasmuch as the parties who were applying were spectators of and privy to the whole proceedings and might have intervened at any time it showed that they had not sustained any prejudice, and had no right to come in to object to the grant of the probate.
25. In that case also new facts were alleged, but the learned Judge put them aside on the ground that they were too late.
26. That case was followed in Radcliffe v. Barnes (1862) 2 Sw. & Tr., 486, which to a large extent is analogous to the present ease.
27. The facts as given in the report were as follows: The plaintiffs in that case were the executors of the will of Joseph Barnes, and the defendant, John Barnes, was the son of the said Joseph Barnes. A sister of the defendant had entered a caveat, and the executors had propounded the will. Several pleas had been raised in opposition to the will and issue was joined on those objections. The issues were tried under an order of the Court before Martin, B., and a jury at the Liverpool assizes, and a verdict was returned in favour of the will. An application for a new trial was made and rejected, and the Court had pronounced for the will.
28. The plaintiffs then applied for probate, when they were met by a caveat entered by the defendant, a brother of the defendant in the previous suit. The plaintiffs thereupon filed a petition praying that probate might pass notwithstanding the caveat, and that the defendant might be condemned in costs. It was admitted that the defendant was cognizant of the former suit, and had assisted his sister in the conduct of it.
29. The learned Judge in the Court of Probate dismissed the objections summarily, and held upon Newell v. Weeks that probate must issue notwithstanding the caveat.
30. The same question came up in the Bombay High Court before Sir Charles Sargent in the matter of Pitamber Girdha (1881) I.L.R., 5 Bom., 638. In that case a will, dated the 5th of February 1879, was propounded by one Navivahoo. The petitioner had entered a caveat, but at the close of the evidence given in support of the will he had without calling any evidence declined to proceed with the case. The Court then found in favour of the will of the 5th February 1879. He subsequently applied for a rule nisi calling on the executors to show cause why the probate should not be revoked and Cancelled; and he brought in another will, dated the 1st of February 1879 alleging that was the real will of the deceased, and that the will of the 5th of February 1879 was a forgery.
31. The learned Chief Justice dealing with the matter relating to the right of the petitioner or anybody else to apply for revocation of the probate expressed himself thus:
It was next contended that the petitioner, having been concerned in the proceedings which resulted in the grant of probate, is precluded from now seeking to have the probate revoked. The rule in England is clear, that when once probate in solemn form has been granted, no one who has been cited or who has taken part in the proceedings, or who was cognisant of them, can afterwards seek to have it cancelled;' and he held that the rule was applicable to the Courts here. Then dealing with another part of the case he says on page 642: 'On behalf of the petitioner's case it was argued that, although the petitioner might be precluded from applying for revocation of the probate by reason of his having been caveator in the former proceedings, the other executors named in the will of the 1st February 1879 did not labour under the same disability, as they had not joined in the caveat, nor had they been cited by the widow, and it was contended that the petition might be amended by inserting their names. It is admitted, however, that they were fully aware of the former proceedings, if indeed they were not actively engaged in supporting the case of the caveator, and I think, therefore, that they are equally bound with him by the decision of the Court, and that the rule laid down in Radcliffe v. Barnes and Newell v. Weeks prohibits them also from applying for revocation of the probate that has been granted.
32. The two cases cited by Mr. O'Kinealy in support of his proposition that in this case the order for probate having been made on withdrawal of the case is not binding on any body else, except the persons directly concerned, seems to me not to apply at all. Wytcherley v. Andrews (1871) L.R., 2 P. & D., 327, was quite an exceptional case. It was on a distinct compromise and one of a suspicious kind upon which the order had been made.
33. In the case of Peters v. Tilly (1886) L.R., 11 P. & D., 845, the witness who could speak to the second will had been out of the country for many years, and his whereabouts having been ascertained the Court gave liberty for taking his evidence; at the same time it ordered that the proceedings instituted for the establishment of the second will should be stayed, till the applicant's costs in the previous case had been paid.
34. That was a totally different case to the present. In the case before me, I am of opinion on the whole of the evidence which was before me and which I am bound to take into consideration that Roma Nath Addy was not only a witness to the case and privy to the proceedings and cognisant of all that was taking place, but that he was closely associated with the caveators. To use the words of Sir John Nicoll he was substantially a party to that suit quite as much as if he had actually appeared a spectator to the whole and privy to the whole. If he had been dissatisfied he might have intervened at any moment of the proceedings.' The case was decided on the evidence of the witnesses care-fully tested by cross-examination, and I found in favour of the will. It seems to me it would be lamentable to allow the whole matter to be reopened. It would not only be a gross abuse of the process of the Court, but would turn it into an engine of oppression and be a means of harassment to innocent persons.
35. On these grounds I think that I am not justified in making an order directing what it would really amount to, a revocation of the order for the grant of probate.
36. However, and in order to avoid the least semblance of grievance, I am, willing to do this.
37. Holding that Roma Nath Addy was privy to the previous proceedings and fully cognisant of them, if he in the course of a week pays to the plaintiff all the costs both of the former proceedings, and of the present proceedings upon his application up to date to be taxed on scale 2, and gives security within the same period for further costs to the satisfaction of the Registrar, this case will be set down for hearing on Wednesday next, and will be taken up at the stage at which it stopped. In other words I will allow the cross-examination of the attorney to be concluded, and the witnesses mentioned in Roma Nath's affidavit, and no more, to be examined.
38. If those costs are not paid within the week and security given as aforesaid the caveat will stand discharged and probate will issue immediately.
39. The plaintiff's bill can be submitted to the taxing officer at once, and I direct that the taxation of it shall have precedence over other bills.