1. The circumstances antecedent to the litigation, out of which the present appeal arises, may be briefly narrated. On the 18th January 1908, Ramani Debi, the appellant before us, made an application for probate of a Will alleged to have been executed on the 30th November 1893, by her husband Bharat Chandra Mukerjee, who died on the 2nd December 1893. Upon this application, notices were issued in due course, and caveat was entered on the 9th March 1908 by two persons, Kumud Bandhu Mukerjee and Nirode Bandhu Mukerjee, who claimed to be the sons of a cousin of the testator. The case, which was then registered as a contested suit, was from time to time adjourned to suit the convenience of the parties, and was finally set down for disposal on the 28th May 1908. The petitioner on that day asked for an adjournment as her witnesses were not present. This application was refused. She then asked for leave to withdraw the application with liberty to present a fresh application; but permission was refused, and she was called upon by the District Judge to proceed with the case. Her pleader intimated to the Court his inability to do so, as he had no further instructions in the matter. The learned Judge thereupon dismissed the application for probate for default with costs to the opposite party. Cm the 15th August 1908, the petitioner filed the present application for probate of the same Will. Notices were issued and objection was taken by the caveators on the ground that the application was not maintainable. The learned Judge thereupon raised an issue in these terms: 'Does the rejection of the previous application for probate of this Will bar the present application?' and held that the dismissal for default of the previous application amounted in law to an. adjudication against the petitioner upon the question of the genuine character and legal validity of the Will. In this view, he concluded that the matter was res judicata and dismissed the application. The petitioner has now appealed to this Court, and on her behalf it has been contended that the view taken by the District Judge cannot be sustained. In support of this position reliance has been placed upon the case of Ganesh Jagannath v. Ram Chandra 21 B. 563. The learned Vakil for the respondent has not disputed that the doctrine of res judicata has no application to the case, but he has urged that the application is barred under Section 103 read with Section 647 of the Civil Procedure Code of 1882.
2. In so far as the ground urged on behalf of the appellant is concerned, there is, in our opinion, no room for controversy that the view taken by the learned District Judge cannot be supported. It was pointed out by their Lordships of the Judicial Committee, in the case of Chand Kour v. Partab Singh 16 C. 98 : 15 I.A. 156, that the dismissal of a suit in terms of Section 102 of the Civil Procedure Code, is not intended to operate in favour of the defendant as res judicata. When a suit is dismissed for default under that section, there is manifestly no adjudication : it cannot consequently be suggested that the principle of res judicata applies. The learned Judge in the Court below, when he held that the dismissal implied an adjudication of the issues involved in the question of the genuine character and legal validity of the Will, proceeded upon a fiction. When, as a matter of fact, no evidence was produced in support of the Will and the case was not heard on the merits, it cannot be held, by any stretch of language that the Judge, who dismissed the application, by implication pronounced against the genuineness of the Will. To make the rule of res judicata applicable, it is not enough to show that the matter in controversy in the subsequent proceeding has been directly and substantially in issue in the previous proceedings, but also that the matter has been heard and finally decided. This clearly was not done in the case before us. We must consequently hold that the conclusion of the District Judge that the matter is res judicata cannot be sustained.
3. The next question, which requires consideration, is whether Section 103 of the Civil Procedure Code of 1882 operates as a bar. In the case before us, there can be no doubt that the previous application was dismissed under Section 158 read with Section 102 of that Code. [Mariannissa v. Ram Kalpa Gorani 34 C. 235 : 5 C.L.J. 260 and Satesh Chandra v. Apara Prasad 34 C. 403 : 2 M.L.T. 123 (F.B.) : 5 C.L.J. 472 : 11 C.W.N. 329]. The question, therefore, arises whether Section 103 barred the present application. The appellant invites us to answer this in the negative. It is pointed out on her behalf that Sections 55 and 88 of the Probate and Administration Act of 1881, which make the provisions of the Code of Civil Procedure applicable to a contested probate proceeding, embody the important qualification that these are to apply only in so far as the circumstances of the case will admit, and the proceeding is to take as nearly as may be, the form of a suit. It is necessary, therefore, to consider whether Section 103 is applicable to the present case. Now, that Section provides that, when a suit has been dismissed for default under Section 102, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. These words have obviously no application to the case before us. When an executor presents an application for probate of a Will, he cannot be regarded as a plaintiff who brings a suit in respect of some cause of action. In fact, as observed by Mr. Justice Sterling in In re Dawubai 18 B. 237, the proceeding commenced by him does not acquire the character of a suit till the caveat has been entered. Further, as is obvious from Section 83 of the Probate and Administration Act of 1881, the provisions of Civil Procedure Code are not applicable to probate proceedings in their entirety, for instance, it has been held that Section 375 of the Code of 1882 is not applicable to an application for probate. Mon Mohini v. Banga 31 C. 357; nor is that Section applicable to proceedings for revocation of probate, Sarawak Kantar v. Gobinda Mohan Das 6 Ind. Cas. 912 : 12 C.L.L.J. 91. Again, in Ravji v. Vishnu 9 B. 241, it was ruled that because the caveat or refuses to answer a question, Section 177 of the Code of Civil Procedure of 1882 does not justify the Judge in making a decree in favour of the petitioner without proof of the Will set up. Similarly, in Ghella Bhai v. Nandu Bai 21 B. 335, it was ruled that the executor and the caveator cannot refer to arbitration the question of the genuineness of the Will, nor can the Court make such a reference under Section 508 of the Code of 1882. On the other hand, in the case of Pakiam Pillai v. Innais Fernand 19 M. 458, Mr. Justice Subramania Ayyar was inclined to hold that, if after a probate proceeding has reached the stage of a contentious suit, the petitioner withdraws the application without liberty reserved to make a fresh application, he may possibly find himself barred under Section 373 of the Code of 1882. The learned Judge farther expressed the opinion that this view received some support from the decision in Trower v. Cox (1822) 1 Addams 219, 225, where Sir John Nicholl admitted that in ordinary cases, if the parties being present declare that they will proceed no further or duly authorize a practitioner to take that step for them, the Court, so far as it legally can, will hold them bound. This guarded expression of opinion does not, however, altogether support the view that the withdrawal of an application for probate, without leave granted by the Court for representation thereof, may bar a subsequent application by virtue of Section 373 of the Code. On the other hand, there are, in our opinion, weighty reasons why, in a case of the description now before us, Section 103 should not be held applicable to dismissal for default of an application for probate. The judgment in a probate proceeding operates as a judgment in rem and as has been repeatedly held, an application for probate of a Will is not subject to the law of limitation [In re Ishan Chunder Roy 6 C. 707 : 8 C.L.R. 52]. A probate proceeding, therefore, while it enjoys the advantage of exemption from the law of limitation, leads to the special result that a decision therein properly obtained operates as a judgment in rem, though it is clear, from the cases of Arunamoyi Dassi v. Mohendra Nath Wadadar 20 C. 888 and Ram Nandan v. Sheo Parson Singh 11 C.L.J. 623 : 5 Ind. Cas. 301, that questions of considerable nicety may arise as to the precise matter in respect of which such decision operates as a judgment in rem. It would not, in our opinion, be right to apply to such a proceeding the provisions of Section 103, which, by their very terms, are plainly intended to apply to suits for enforcement of causes of action. This view is supported by the decision in Ganesh v. Ram Chandra 21 B. 563. In this case, it was ruled that the refusal to grant probate does not conclusively show that the Will propounded is ant the genuine Will of the testator, and does not prevent the adjudication of the question in a subsequent proceeding; in other words, the judgment of a Court by which probate is refused, does not necessarily operate as a judgment in rem in the same way as a judgment by which probate is granted. No doubt, such a judgment, if it declares that the Will is a forgery or that it has not been duly executed by the testator with a sound disposing mind, or that it is not duly attested, may take away from the executor, and from the legatees and beneficiaries their legal character ; and this result may be final as against all persons interested under the Will ; bat every refusal to grant probate does not conclusively show that the Will propounded is not the genuine Will of the testator. The decision may be based upon entirely different grounds, which do not touch the question of the genuineness of the Will. Such a judgment cannot operate conclusively unless it embodies a final decision against the genuineness of the Will. The learned Judges of the Bombay High Court, while they laid down this proposition, carefully guarded themselves, however, against any expression of opinion upon the question, whether if an issue had been raised upon the question of forgery; of the Will and had been decided, the decision might not be conclusive. The true rule, based upon intelligible grounds, is thus formulated in the cases of Schultz v. Schultz (1853) 10 Gattan 358 : 60 Am. Dec. 335: 'When a Will has been propounded by a party interested and fairly rejected on the merits, it would defeat the policy of the law and be productive of many mischief's, if it could be again propounded by the same party or by others who might be interested, and the contest thus renewed from time to time. The sentence, therefore, against the Will must be regarded as a sentence against all claiming under if it stands upon a footing analogous to the cases known as judgment in ram, which, being adjudications upon the subject-matter, are regarded as final and conclusive; not only in the Courts in which they are pronounced, but in all others in which the same question arises.' Again, in Freeman on Judgments, Volume I, Section 319(b), it is explained, on the same principle, that, if there has been an adjudication on merits, whether the adjudication be for or against the validity of the Will, it is a final settlement of the matter and it cannot be collaterally attacked, impeached or avoided, in the same or in any other Court, by any of the parties thereto or by any person in, privity with them; in other words, a refusal to admit a Will to probate is conclusive of the fact necessary to support the decision. On the other hand, if probate had been refused, not on the merits, but merely by reason of the insufficiency of some matter of form or procedure, there is no adjudication that the instrument is not entitled to probate, and, there-fore, it may be again propounded [Lilly v. Tobbein (1890) 103 Missouri 477 : 23 Am. St. Rep. 887]. It is manifest, therefore, that if the application by an executor for probate of a Will has been dismissed for default, that fact by itself cannot debar an application for probate by any other person, for example, a legatee who claims an interest under the Will; if so, it would be futile to hold that an executor, who has made default, cannot propound the Will again. The learned Vakil for the respondent has, however, contended that, if this view were adopted, it would encourage multiplicity of litigation, and an unscrupulous petitioner might, time after time, present applications for probate which he had no serious intention to prosecute. In our opinion, the danger here apprehended may easily be avoided, if upon dismissal of an application for probate for default, a suitable order for costs of a deterrent character is made in favour of the caveat or in every case where there is good reason to suspect that the proceeding has not been instituted bona fide. It is worthy of note that a similar argument induced the learned Judges of the Allahabad. High Court to hold that the provisions of Section 103 of the Code of 1882 were applicable to applications for execution of decrees, a view which was negatived by the Judicial Committee in Thakar Prasad v. Fakirullah 22 I.A. 44 : 17 A. 106, after the Legislature had promptly intervened to nullify its effect by Act VI of 1892. As we have already explained, Section 108 does not, by its terms, bar the presentation of a second application for probate when the first has been dismissed for default, and we are not prepared to extend its terms to a case of the description now before us, which it was clearly never intended to cover. It follows, therefore, that, while the view taken by the learned District Judge admittedly cannot be supported, there is no other ground upon which his decree can be sustained.
4. The result is that this appeal must be allowed, the decree of the District Judge reversed, and the case remanded to him in order that it may be heard on the merits. The respondent must pay the appellant her costs in this Court. We assess the hearing fee at 5 gold mohurs.