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Nobeen Chunder Sil and ors. Vs. Bhobosoonduri Dabee - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in(1881)ILR6Cal460
AppellantNobeen Chunder Sil and ors.
RespondentBhobosoonduri Dabee
Cases ReferredNoell v. Wells
Excerpt:
probate - caveat--interest of attaching creditor--next-of-kin--mortgagees--succession (x of 1865), section 234, illus. (b), section 242--20 and 21 vict., c. 77, section 61. - .....such an interest as would entitle them to maintain a suit in respect of the subject-matter of such estate-persons having, for example, such an interest as, according to the practice of the court of chancery, would entitle them to file a bill in a court of equity'; see this question discussed in daniell's chancery practice, 5th edition, page 267. if this be the proper construction, i think that the mortgagees, brojo mohun ghose and obhoy churn sen, and also the attaching creditor, nobeen chunder sil, are persons who might have been properly cited under section 250, and who, having come in and stated the interests claimed by them, are entitled to be made parties to the suit brought in the court of the district judge to obtain probate of the alleged will. section 261 then enacts that in any.....
Judgment:

White, J.

1. This is an appeal against a decree of the District Judge of the 24-Pargannas, granting probate of the will of Nobo Coomar Ganguli, deceased, to Bhobosoonduri Dabee, the respondent, who is his widow and executrix.

2. The testator died on the 21st October 1877, and left, besides his widow, two sons, Parbutti Churn Ganguli, an adult, and Hori Churn Ganguli, a minor. The will purports to give the entire property of the testator to his widow for her life, and after her death to his sons. It thus postpones the inheritance of the sons until after their mother's death.

3. Nobeen Chunder Sil, the appellant No. 1, claims to have obtained in 1878 a money-decree against Parbutti Churn Ganguli for a private debt of his, and, on the 4th of February 1879, which was about a month before the will was propounded, to have attached the share of Parbutti in the immoveable property left by the testator.

4. The remaining two appellants, Brojo Mohun Ghose and Obhoy Churn Sen, claim, under a mortgage executed by the two sons of the testator about a month after his death, to be the mortgagees of the immoveable property left by the testator.

5. The three appellants filed a caveat against the grant of probate, but the District Judge, on the authority of a decision of this Court-Baijnath Shahai v. Desputty Singh (I. L. R., 2 Cal., 208)-refused to allow them to take part in the proceedings or oppose the grant.

6. The question before us is, whether, supposing the appellants to prove that they have the interests which they claim, they or either of them have such interests in the estate of the deceased as entitle them to file a caveat and oppose the grant

7. It is not necessary to consider whether the case cited by the District Judge is good law, for it does not determine the question with which we have to deal In that case the parties opposing the probate were simple creditors of a person who was the heir of the deceased, supposing the testator had died without a will, and supposing also that he had not adopted a son. In the present case the appellants have a claim upon the immoveable property left by the testator,-two of them as mortgagees of the persons who, if the testator left no will, are entitled to create the mortgage, and one of the appellants as the attaching creditor of one of these persons.

8. In the search which I have been able to make in the English reports and text-books, I can find no cases, and therefore no decision, in which persons standing to the deceased's estate in the relation in which the appellants respectively stand have entered caveat or applied to revoke grants. Probate and administrations in England only affect personal property, and no title to such property can be made without the act of the executor or administrator. It is plain that mortgages by the next-of-kin of their shares in the deceased's personal estate, before distribution of the assets by the executor or administrator, if they ever occur there, must be of extreme rarity. It is almost beyond the bounds of probability that a party would before probate take from the next-of-kin an assignment of their interest in the estate as upon an intestacy, or that, if he did, he would not fortify his title by making the next-of-kin execute a power-of-attorney authorizing him to oppose probate in their name. In this country, however, probate has effect over all the property of the deceased, both moveable and immoveable (Section 242 of the Indian Succession Act, 1865), and everything that is capable of assignment is, according to the habits and practice of the people of this country, constantly being assigned, quite irrespective of whether the title is inchoate or imperfect, doubtful or bad.

9. It cannot be disputed that the appellants have a direct interest in disputing the will. They alleged that the will is a forgery, and has been concocted for the purpose of overriding their mortgage and attachment. The authorities show that, so long as the probate remains unrevoked, the attaching creditor could not bring the attached property to sale, nor could the mortgagees by any suit get the benefit of their mortgage. Their proceedings in each case would be defeated by the production of the probate, for they could not raise the issue that the will was forged. 'A probate unrevoked,' says Mr. Justice WILLIAMS in Vol. I Williams on Executors, 7th edition, p. 549, 'is conclusive both in the Courts of law and equity, not only as to the appointment of executors, but as to the validity and contents of the will, so far as it extends to personal property.' As a probate in India extends to immoveable property, the doctrine applies in this country to all the property left by the deceased. The only grounds on which the appellants could impeach the probate in a Civil Court would be those stated in the 44th section of the Indian Evidence Act, namely,-that the probate was granted by a Court not competent to grant it, or that it was obtained by fraud or collusion, which means fraud or collusion upon the Court, and perhaps also fraud upon the person disinherited by the will-Barnesly v. Powel (1 Ves., Sen., 119, 284); but they could not show that the will was never executed by the testator or was procured by a fraud practised upon him. It is obvious, therefore, that, unless the appellants have a locus standi in the Probate Court, they are without remedy, supposing their case against the will to be true.

10. Markby and Prinsep, JJ. in Komollochun Dutt v. Nilruttun Mundle (I. L. R. 4 Cal., 360) have virtually decided the question before us, so far as the mortgagee-appellants are concerned. The plaintiff there had purchased from a widow an estate which she was supposed to have inherited from her husband. Afterwards the brother of the husband obtained and produced at the trial probate of a will of the husband, by which he bequeathed the whole property to his brother. The plaintiff sued to recover the property from the possession of the brother, alleging that the will was a forgery. This Court reversed a remand order of the District Judge, which directed the first Court to try the question of the genuineness of the will, and directed that the trial should be postponed in order that the plaintiff might apply to the Probate Court of the District Judge to revoke the grant of probate.

11. Markby, J. apparently based his decision upon the language of Section 242 of the Indian Succession Act. But that section, whilst stating that the probate shall be conclusive as to the representative title, is silent as to its effect with respect to the validity and contents of the will. Its conclusive effect in the latter respects is really the legal consequence of the exclusive jurisdiction of the Court of Probate, as stated by Mr. Justice Williams in Vol. I, Williams on Executors, p. 549. In the mofussil the District Judges are the sole Courts of Probate, and it would be obviously inconsistent with the exclusive jurisdiction conferred upon them, that probates until revoked should not be conclusive as to the due execution of the will to which the grants relate.

12. The mortgagee-appellants in the present case stand substantially in the same position as the plaintiff in Komollochun Dutt v. Nilruttun Mundle I.L. R., 4 Cal., 360; they are purchasers pro tanto and assigns of the immoveable estate of the deceased, although only for the limited purpose of securing money which they have advanced to the testator's heirs. If, according to the authority just cited, they might apply to revoke the probate that has issued, it follows that they may also enter a caveat and oppose the grant.

13. The case of an attaching creditor of the next-of-kin was not before the Court in Komollochun Dutt v. Nilruttun Mundle (I. L. R., 4 Cal., 360), but Markby, J., intimated an opinion that an attaching creditor was also entitled to apply to revoke probate. This point has been, recently decided in favour of the attaching creditor in Umanath Mookhopadhya v. Nilmoney Singh (Ante, p. 429).

14. I am of opinion, therefore, that the appellants claim respectively such interests in the estate of the deceased as entitle them, upon proof of their interests, to file a caveat and oppose the grant of probate of the will of Nobo Coomar Ganguli, deceased.

15. As the Court below in effect dismissed their caveat without deciding whether they had the respective interests which they claim, it will be necessary for them to prove those before being allowed to oppose.

16. The appeal as allowed, the decree of the lower Court is set aside, and the case remanded for trial on the merits, upon proof being first given by the appellants of the respective mortgage and attachment. The costs of the first trial and of the trial on the remand to abide the result of the remand.

Field, J.

17. In this case one Bhobosoondury Dabee applied to the Court of the District Judge of the 24-Parganas for probate of a will said to have been executed by her deceased husband, Nobo Coomar Ganguli. A caveat was lodged by three persons, Nobeen Chunder Sil, Brojo Mohun Ghose, and Obhoy Churn Sen. Brojo Mohun Ghose and Obhoy Churn Sen claimed to come in and see the proceedings and oppose the grant of probate, on the ground that the testator's sons Parbutti Churn Ganguli and Hori Churn Ganguli had mortgaged to them a portion of the property which belonged to the deceased Nobo Coomar Ganguli, and which would have descended to these sons, the heirs, according to Hindu law, if Nobo Coomar Ganguli had died intestate.

18. Nobeen Chunder Sil obtained a decree for a private debt against Parbutti Churn Ganguli, and in execution thereof attached Parbutti Churn's share in the property before the will was propounded.

19. The learned District Judge of the 24-Parganas, upon the authority of the case of Baijnath Shahai v. Desputty Singh (I. L. R., 2 Cal., 208), held, that these three caveators were not entitled to see the proceedings and oppose the grant of probate.

20. The contention of all three caveators is substantially this, that the sons of Nobo Coomar Ganguli had, upon their father's death, inherited his property and mortgaged it to Brojo Mohun and Obhoy Churn; and that the will propounded by Nobo Coomar's widow is a forgery, and has been concocted for the purpose of defeating the rights of the mortgagees and the creditors of the sons.

21. With respect to Brojo Mohun Ghose and Obhoy Churn Sen the case stands t(sic)hus: These two persons are mortgagees, and being assignees of Nobo Coomar's sons, may be said to stand in the shoes of these sons. If the contention of these two persons is true-namely, that Nobo Coomar died intestate, and that the will propounded by his widow is a forgery, concocted for the purpose of perpetrating a fraud upon them-it becomes an important question to consider whether they have not such an interest as will enable them to show that the will is a forgery, and has been manufactured for the purpose of practising a fraud upon them; and secondly, whether they are entitled to show this in the probate proceedings before the District Judge, or have the right to show it in a suit framed for the purpose and instituted in a different Court.

22. In the case of Komollochun Butt v. Nilruttun Mundle (I. L. R. 4 Cal., 860) it has been held by Markby and Prinsep JJ., that the grant of probate is the decree of the District Judge, which cannot be questioned or set aside in any other Court of inferior jurisdiction. In that case two brothers were joint proprietors of certain property. One of them died childless, leaving his widow him surviving. This widow sold her interest in her husband's estate to one Nilruttun Mundle. After this sale the surviving brother propounded a will said to have boon executed by his deceased brother. Probate of this will was obtained in the Court of the District Judge. Nilruttun subsequently sued to recover the widow's share of the property, alleging the will to be a forgery. Markby, J., referring to, and approving of, the case of Mayho v. Williams (2 All. H. C. Rep., 268), held that the validity of the will could not be questioned in the Court of the Subordinate Judge, and that the proper course for Nilruttun was to apply to the District Judge to revoke probate of the will. Nilruttun's appeal was accordingly adjourned to enable him to make an application to the District Judge for revocation of the probate. Markby, J., said that 'the grant of probate is the decree of a Court which no other Court can set aside except for fraud or want of jurisdiction, and no such ground is alleged here.'

23. So far as the facts of the case appear from the published report, I am myself unable to understand this observation. Nilruttun contended that the will was a forgery. There was no suggestion that the surviving brother had propounded and obtained probate of a forged will, being in ignorance of the fact of its being forged, and if, knowing the will to be forged, he propounded it in the Court of the District Judge for the purpose of obtaining probate accordingly, it as difficult to see that fraud was not practised upon the Court of the District Judge.

24. In the case now before us the caveators, Brojo Mohun Ghose and Obhoy Churn Sen, allege that the will is a forgery, and has been concocted by the widow and her sons in collusion for the purpose of defeating the rights of them, the mortgagees. This is a case which appears to stand on all fours with the case of Komollochun Dutt v. Nilruttun Mundle (I. L., R., 4 Cal., 360); and if these caveators are unable to contest the validity of the will in another Court, and are also precluded from coming in to see the probate-proceedings and opposing the grant of probate, it is clear that they will be entirely without' a remedy.

25. In the case of Baijnath Shahai v. Desputty Singh (I. L. R., 2 Cal., 208) the persons who opposed the grant of probate had not lodged a caveat, and they were merely creditors of the next-of-kin of the deceased. I think that there can be no doubt that such 'persons were not persons claiming to have an interest in the estate of the deceased' within the meaning of Section 250 of the Indian Succession Act (X of 1865). In Komollochun Dutt v. Nilruttun Mundle (I. L. R., 4 Cal., 360), Markby, J., drew a distinction between a mere creditor of the next-of-kin and a purchaser or assignee of the next-of-kin, and observed that a purchaser or assignee would be in a very different position from a creditor of the next-of-kin. Following the authority of this case, I think that Brojo Mohun Ghose and Obhoy Churn Sen, being mortgagees of the sons of the alleged testator, are entitled to come in and see the proceedings and contest the grant of probate.

26. According to the law of England, the grant of probate of a will has always been conclusive as to the validity of the will, so far as personal property is concerned. Repeated attempts were made to induce the Court of Chancery to assume a jurisdiction which would have infringed this principle. In the case of Allen v. M'Pherson (1 H. L. Cas., 191) a bill was filed to have the executors of a will declared trustees for one B. A. to the amount of certain bequests which had been made in the will and certain codicils, but revoked by a later codicil. The ground upon which relief was asked was, that this last codicil had been executed under undue influence of the residuary legatee and false representations made at her instance respecting R. A.'s character. It was decided (dissentientibus Lord Cottenham, Chancellor, and Lord Langdale, M. R.) that the Court of Chancery had no jurisdiction in the matter, and that the proper course would have been an appeal to the Judicial Committee of the Privy Council against the sentence of the Ecclesiastical Court.

27. In the case of Meluish v. Milton (L. R., 3 Ch. D., 27) a wife had, as sole executrix, obtained a grant of probate, and it was held that the Court of Chancery had no jurisdiction to entertain a bill to have her declared a trustee for the heir-at-law and sole next-of-kin, on the ground that she was not the lawful wife of the testator, as she had a former husband living, and that as the will was made in favour of the wife, she was not entitled to take the property under this will.

28. There are numerous other cases which establish the position that a grant of probate is, so far as regards personal estate, conclusive as to the genuineness of the will of which probate is granted.

29. In 1857 it was enacted by the Court of Probate Act, 20 and 21 Vict., c. 77, Section 61, that 'where proceedings are taken for proving a will in solemn form, or for revoking the probate of a will on the ground of the invalidity thereof, or where, in any other contentious cause or matter under this Act, the validity of a will is disputed, unless, in the several cases aforesaid, the will affected only personal estate, the heir-at-law, devisees, and other persons having or pretending interest in the real estate affected by the will, shall, subject to the provisions of this Act and to the rules and orders under this Act, be cited to see proceedings; or otherwise summoned in like manner as the next-of-kin or others having or pretending interest in the personal estate affected by a will, should be cited or summoned, and may be permitted to become parties or intervene for their respective interests in such real estate, subject to the rules and orders and to the discretion of the Court.' Section 62 then enacts, 'that where probate of such will is granted after such proof in solemn form, or where the validity of the will is otherwise declared by the decree or order in such contentious cause or matter as aforesaid, the probate, decree, or order respectively shall enure for the benefit of all persons interested in the real estate affected by such will, and the probate copy of such will, or the letters of administration with such will annexed, or a copy thereof, respectively stamped with the seal of the Court, shall, in all Courts and in all suits and proceedings affecting real estate of whatever tenure, be received as conclusive evidence of the validity and contents of such will, in like manner as a probate is received in evidence in matters relating to the personal estate; and where probate is refused or revoked on the ground of the invalidity of the will, or the invalidity of the will is otherwise declared by decree or order under this Act, such decree or order shall enure for the benefit of the heir-at-law or other persons against whose interest in real estate such will might operate, and such will shall not be received in evidence in any suit or proceeding in relation to real estate, save in any proceeding by way of appeal from such decrees or orders.' Section 63 provides that in certain cases the heir need not be cited, and that where he has not been cited, he is not to be affected by the proceedings. Section 64 enacts that, 'in any action at law or -suit in equity, where, according to the existing law, it would be necessary to produce and prove an original will in order to establish a devise or other testamentary disposition of, or affecting, the real estate, it shall be lawful for the party intending to establish in proof such devise or other testamentary disposition to give to the opposite party ten days, at least, before the trial or other proceeding in which the said proof shall be intended to be adduced, notice that he intends at the said trial or other proceeding to give in evidence as proof of the devise or other testamentary disposition the probate of the said will or the letters of administration with the will annexed or a copy thereof, stamped with any seal of the Court of probate; and in every such case such probate or letters of administration, or copy thereof, respectively stamped as aforesaid, shall be sufficient evidence of such will and of its validity and contents, notwithstanding the same may not have been proved in solemn form, or have been otherwise declared valid in a contentious cause or matter, as herein provided, unless the party receiving such notice shall, within four days after such receipt, give notice that he disputes the validity of such devise or other testamentary disposition.'

30. The Indian Succession Act (X of 1865) makes no distinction between real and personal property and the effect of probate of a will upon such property respectively. Section 242 enacts that 'probate or letters of administration shall have effect over all the property and estate, moveable or immoveable, of the deceased, 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.'

31. That probate of a will is conclusive as to the legal character of the executor was decided in Allen v. Dundas (3 T. R., 125) and in Noell v. Wells (1 Lev., 235), and has never since been doubted.

32. The section, which I have just quoted affirms and enacts the conclusiveness of a grant of probate or administration as to the representative title merely, and it is a matter of observation that in this Act, passed in 1865, no provisions were introduced similar to those which I have just quoted from the Court of Probate Act of 1857, declaring a probate of will to be conclusive evidence in all Courts and in all proceedings of the validity and contents of the will itself. Are there any provisions in the Indian Succession Act which supply this omission or deficiency, whichever it may be called? Section 250 of the Act gives to the District Judge the large power of issuing citations to all persons claiming to have any interest in the estate of the deceased. What is the meaning of the expression 'persons claiming to have any interest?' It appears to me that the persons claiming to have any interest' must be persons having such an interest as would entitle them to maintain a suit in respect of the subject-matter of such estate-persons having, for example, such an interest as, according to the practice of the Court of Chancery, would entitle them to file a bill in a Court of Equity'; see this question discussed in Daniell's Chancery Practice, 5th Edition, page 267. If this be the proper construction, I think that the mortgagees, Brojo Mohun Ghose and Obhoy Churn Sen, and also the attaching creditor, Nobeen Chunder Sil, are persons who might have been properly cited under Section 250, and who, having come in and stated the interests claimed by them, are entitled to be made parties to the suit brought in the Court of the District Judge to obtain probate of the alleged will. Section 261 then enacts that in any case before the District Judge in which there is contention, the proceedings shall take, as nearly as may be, the form of a regular suit, according to the provisions of the Code of Civil Procedure, in which the petitioner for probate or letters of administration, as the case may be, shall be the 'plaintiff', and the person who may have appeared to oppose the grant shall be the defendant.'

33. It would appear that the persons who have appeared as caveators, and have been parties to the contentious proceedings in the Court of the District Judge (and perhaps also those persons who having been served with personal notice have failed to appear), will be the only parties bound by those proceedings; and that other persons falling within the definition 'persons claiming to have any interest, & c.,' who are not parties to the original proceedings, or, though entitled to be cited, were not served with personal notice thereof [see illus. (b) to Section 234], have for their only remedy an application under Section 234 for the revocation or annulment of the grant of probate or letters of administration; and that, in making such an application, they will be limited by the expression 'just cause' as defined in that section.

34. Section 235 enacts that 'the District Judge shall have jurisdiction in granting and revoking probate and letters of administration in all cases within his district.' The jurisdiction created in the mofussil by the Indian Succession Act is a new jurisdiction which, before the passing of this Act, did not belong to the Civil Courts. According to the ordinary rules for the interpretation of Statutes, it follows that this jurisdiction can be exercised only by the Court of the District Judge, and not by any other Civil Court in the mofussil. I am, therefore, of opinion that, whether the persons interested came in the first instance to oppose the grant of probate, or subsequently to have a grant revoked or annulled, they must come to the Court of the District Judge; and as this Court has thus an exclusive jurisdiction, it must be careful not to deny all remedy to persons interested by refusing to allow them to be made parties to its proceedings. As to the text of what constitutes a sufficient interest to entitle any particular person to be made a party, according to the view which I have already stated, I think it comes to this, that any person has a sufficient interest who can show that he is entitled to maintain a suit in respect of the property over which the probate would have affect under the provisions of Section 242 of the Indian Succession Act.

35. I concur in allowing the appeal and remanding the case for trial on the merits. The appellants will of course have to prove the interest alleged by them.


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