B.N. Banerjee, J.
1. This appeal is directed against an appellate decree, affirming the decree passed by a learned Munsif.
2. The appeal arises out of a suit for partition. According to the plaintiff, the property in suit, at one time, belonged to one Radhikalal Das. Radhika died. it was alleged, leaving a Will, executed on May 15, 1893. Under the terms of the Will Radhika's two widows, Nityakali and Chamatkarini, together were to nave life interest in the property in dispute. After their demise, Benimadhab, the sister's husband of Radhika, or failing him Nistarini, the sister of Radhika. were to have the disputed property and failing them the disputed property was bequeathed to Fakir and Sarat daughter's sons of Benimadhab and Nistarini.
3. Nityakali, Benimadhab and Nistarini predeceased Radhika's widow Chamatkarini. who died as late as in the year 1350 B. S. (1943-44). On the death of Chamatkarini, therefore. Fakir and Sarat got the disputed property. Fakir died in year 1356 B. S. (1949-50) leaving the plaintiffs as his heirs. Sarat was succeeded by his son, Provas (pro forma defendant No. 7), who sold away his interest to Satyacharan, defendant No. 1, by a conveyance (Ext. 4), dated June 21, 1944.
4. It is not disputed that if there had been no Will left by Radhika, the principal defendants would have been his reversionary heirs and legal representatives. Plaintiffs alleged that under the terms of the Will they were entitled to one-halt share in the disputed property and claimed partition of the share by metes and bounds.
5. The principal defendants contested the suit, mainly on two fold ground. It was alleged that Chamatkarini, during her life-time, had executed two documents of permanent lease, one in favour of defendant No. 1 and the other in favour of defendants Nos. 1 and 2, respectively dated November 7, 1928 and March 11, 1941. The leases were said to have been executed by Chamatkarini for legal necessity and were valid even after the death of the widow, Chamatkarini. It was contended in the next place that the Will was not proved in the absence of any probate of the Will and the plaintiffs could not claim any title on the basis of the Will.
6. The trial court decreed the suit being satisfied that the Will of Radhika had been duly probated and that the lease granted by Chamatkarini to defendants Nos. 1 and 2 did not endure beyond her life-time. The decree was affirmed by the lower appellate court. Hence this second appeal at the instance of defendant No. 1.
7. It is necessary for me at this stage to refer to the evidence adduced before the trial court in proof of the Will, a certified copy of which is marked Ext. 3. In the first place there is Ext. X the certified copy of the judgment in Probate Suit No. 45 of 1897 ordering grant of the probate of the Will of Radhikalal Das to Benimadhab, the executor named in the Will. Then there is Ext. 2, certified copy of an extract from the suit register, showing inter alia, that against the order for grant of probate in Suit No. 45 of 1897 there was an appeal preferred to the High Court, namely F. A, No. 171 of 1898, which appeal was, however, dismissed for default. Then again there is an admission by Chamatkarini, contained in a mortgage deed (Ext. B), to the effect that Benimadhab duly took out probate of the Will of Radhikalal Das in Probate Suit No. 45 of 1897. Lastly, there is the fact that defendant No. 1 purchased the share of Sarat's son, Provas, by conveyance Ext. 4, dated June 26, 1944, which would not have been done unless there was a duly probated will of Radhika, evidencing a valid bequest to Sarat.
8. The probate of the Will was not produced by the plaintiffs and no explanation was given as to why it was not done. The original record of the probate case is also destroyed and therefore it cannot be ascertained from the order sheet whether or not a probate was granted under the seal of the court
9. Mr. Manindranath Ghose, learned Advocate for the appellant's, contended, in the first place, that an order for grant of probate and grant of probate under the seal of the court were two different stages in the proceedings. Even after an order for grant of the probate, a probate under the seal of the court may not be granted, either because the court-fees payable for probate were not paid or an order for furnishing security by the executor was not complied with.' Mr. Ghose argued that the words 'final judgment, order or decree' used in sec. 41 of the Indian Evidence Act with reference to Probate Court means the judgment, order on decree by which the grant is actually issued to the propounder or the applicant, that is to say one by which the seal of the court as affixed to the grant comes to the grantee. Mr. Ghose relied on a decision of this Court, reported in 43 Cal WN 824, Harilal Chatterjee v. Sarat Chandra Chatterjee in support of his contention and argued that in the absence of the probate, the Will should not be taken or be deemed to have been proved and should be excluded from consideration. If the Will was not taken in evidence, there was no basis on which the plaintiffs could claim partition.
10. Probate has been defined in Section 2(f) of the Indian Succession Act as follows:
'Probate means the copy of a Will certified under the seal of a court of competent jurisdiction with a grant of administration to the estate of the testator.'
The effect of probate, as seated in Williams onExecutors, Vol. 1, page 254, Chapter 10, (13thEdition), is as follows:
'A Probate even in common form, unprovoked, is conclusive both in the Courts of Law and of Equity as to the appointment of executor, and the validity and contents of a Will * * * Therefore it cannot be proved that another person was appointed executor or that the testator was insane or that the Will of which the probate has been granted was forged, for that would be directly contrary to the seal of the court.'
11. Thus the grant establishes conclusively the legal character of the person to whom the grant is made. Further the grant is not only relevant but conclusive evidence against all. It is conclusive evidence of the validity and due execution of the Will and of the testamentary capacity of the testator.
12. Section 41 of the Indian Evidence Act deals with the relevancy of the final judgments or orders passed, amongst others, by a court of Probate jurisdiction. Hereinbelow I quote the section:
'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 person but absolutely, is relevant when the existence of any such legal character, or the title of any such person to any such things 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 person to be entitled, accrued to that person at the time when such judgment, order or decree 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, order or decree declared that it had ceased or should cease; and that any thing to which it declares any person to be so entitled was the property of that person at the time from which such judgment, order or decree declares that it had been or should be his property.'
13. A final judgment or order of a court, in exercise of its probate jurisdiction, referred to in Section 41 of the Indian Evidence Act, is the probate as defined in Section 2(f) of the Indian Succession Act, for it is the grant which declares or confers, the legal character on the propounder or the applicant In the case of 43 Cal WN 824, R.C. Mitter and Khondkar, JJ. observed that
'the underlying principle is that it is the seal of the Probate Court, the seal affixed to the grant that prevents any person from challenging in a Court of law either the appointment of the executor or administrator or the validity of the Will or its contents as appearing in the grant.'
14. But although that is so can it be said that if the probate under seal is lost or destroyed or cannot be produced, no other evidence should be received to prove that the Will was at one stage duly probated and a probate was granted under the seal of the court? The present one is an extreme case. Here not only the probate is wanting but even the record of the probate case is destroyed, so that it cannot even be ascertained from record that the probate was once issued under the seal.
15. At the same time there are valuable pieces of evidence, to which I have hereinbefore referred to in detail, making it exceedingly probable and very much reasonable to infer that a probate of the Will was granted under the seal of the court.
16. That Radhikalal Das executed the Will, of which the certified copy is Ext. 3, is no longer in dispute. That the Will was proved is not also in dispute. In evidence of the proof of the Will there is the judgment in Probate Case No. 45 of 1897. The only dispute is whether the probate under the seal of the court, which is primary evidence of the grant, was duly issued by the court of Probate jurisdiction.
17. I am of opinion that parole evidence and even evidence of conduct is admissible to prove grant of probate under the seal when the document bearing the seal of the court is lost, destroyed or cannot be produced. There is nothing in Section 41 of the Indian Evidence Act which excludes proof by secondary evidence or by evidence of conduct in respect of matters dealt with in that section.
18. In the present case, however, there is no direct evidence that the probate is lost, destroyed or cannot be produced. But it should be remembered that the probate in the instant case was obtained considerably more than half a century prior to the time of the filing of the suit, by a person who was connected with the plaintiffs in their maternal line. It is not unreasonable in such a case to presume that the probate is lost. Moreover, there is no suggestion in this case that the plaintiffs being in possession of the probate are withholding the same.
19. In my attempt to probe further into the matter I called for the original Will from the court of the District Judge of Hooghly, by my order dated April 21, 1959. That order was passed, because the learned Advocates appearing on either side, asked for the production of the Will. When the original Will arrived in this Court I found on the back sheet of the document the following endorsements:
'On the 4th March, 1898 in Suit No. 45 of 1897 probate of this Will was ordered to be granted to Benimadhab Mondal the Executor named therein. Hooghly Dist Judge's Court Sd. IllegibleThe 11th March 1898 District Judge.''Probate granted to Benimadhab Mondal dated 4-3-98.''Entered as No. 15 of 1898 at pp. 151-161 of vol. 15.'
20. The above two endorsements also go to show that the probate of the Will was actually granted and not only ordered to be granted. I do not however, place much reliance on the second endorsement, because I do not know by whom the same was made.
21. Be that as it may, I rely firstly on the admission of Chamatkarini in Ext. B, the mortgage deed, executed by her to the effect that probate of the Will was granted to Benimadhab. I am also of the opinion that the conduct of the defendant No. 1 in purchasing the share, of Provas, son of Sarat, makes the grant of the probate an exceedingly probable and believable version, because unless satisfied about the grant, defendant No. 1 would not have purchased from the heirs of one of the legatees under the Will. I, therefore, overrule the first contention of Mr. Ghose and hold that the Will of Radhikalal Das was duly probated and the plaintiffs as heirs to Fakir, one of the legatees, are entitled to claim partition of their 8 as. share.
22. Mr. Manindranath Ghose argued in the next place that according to the defendants the permanent leases by Chamatkarini to defendant No. 1 and defendants Nos. 1 and 2 were for legal necessities and must, therefore, enure beyond the life-time of Chamatkarini and in perpetuity. Mr. Ghose argued that the court of appeal below was in error in holding that it was immaterial whether Chamatkarini had created the lease in favour of the defendants for legal necessity or not.
23. In the form in which Mr. Ghose puts forth this argument, it appears to have some substance. But on closer examination I have to overrule this contention also. It was for the defendants to prove that the leases were for legal necessity of the limited owner, Chamatkarini. Regard being had to the unsatisfactory nature of the finding of the lower appellate court on the point, I exercised my powers under Section 103 of the Code of Civil Procedure and went through the evidence. Defendant No. 1 examined himself and vaguely spoke about loans taken by Chamatkarini to defray litigation expenses and costs of maintenance. The other witness, D.W. 2, who spoke about loan knew little about necessity. On such evidence legal necessity cannot be established.
24. Both the points argued by Mr. Ghose, therefore, fail and I dismiss this appeal. In the circumstances of the case I make no order as to costs.