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Kunja Lal Chowdhury Vs. Kailash Chandra Chowdhury and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata
Decided On
Judge
Reported in7Ind.Cas.740
AppellantKunja Lal Chowdhury
RespondentKailash Chandra Chowdhury and ors.
Cases ReferredMohan v. Broughton
Excerpt:
will - probate--district delegate--delegate by judge-compromise--withdrawal of objections by caveator--persons who are privies to, if bound by probate--revocation--fraud--terms of compromise not to be embodied in order but enforceable by action--infants, if bound by compromise--bar of infant's right--acquiescence, delay, subsequent ratification--probate and administration act (v of 1881), section 52. - .....judge with a recommendation that the probate might be granted. on the 22nd march, the district judge formally granted probate of the will. on the 3rd december 1907, the petitioner filed the present application for revocation of the probate on the ground that the will was not genuine, and that the compromise was collusive, fraudulent and seriously injurious to him. the district judge had rejected the application on the ground that the petitioner had for 4 or 5 years acquiesced in the disposal of the property according to the terms of the will and the compromise and also on the ground of estoppel. from this order the petitioner has appealed to this court.2. it has been contended on his behalf that the probate ought to be revoked because, it is said, that the district judge acted.....
Judgment:

Doss, J.

1. This appeal arises out of an application under Section 50 of the Probate and Administration Act for revocation of the probate of the Will of one Raj Chand Chowdhury. The facts are shortly these:--There were two brothers Keshav Chandra Chowdhury and Raj Chandra Chowdhury. Keshav had two sons, Kailash and Tara Prasanna. Raj Chandra, the alleged testator, made a Will on the 8th July 1896 whereby he bequeathed all his properties to his nephews, Kailash and Tara Prasanna. He died four days afterwards leaving behind him a widow, Dayamayi and a daughter, Nrityamayi. Nrityamayi, who is still alive, has two sons, Behary Lal Chowdhury and Kunja Lal Chowdury. On the 2nd October 1896, Kailash and Tara Prasanna applied for probate of the Will; whereupon, besides the usual notices, special citations were issued to the widow and daughter of the testator, as also to Behary Lal who was then adult. On the 3rd March 1897, the widow represented to the Court that a compromise had been effected with the applicants for probate and as guardian on behalf of Kunja Lal who was then a minor, she prayed that the compromise be sanctioned. No formal order, however, was passed on that petition. On the 10th March, the petitions of compromise were filed by both parties, where-upon the Court passed the following order: 'Compromise has been effected, petitions of this day of both sides and petitions of Nrityamayi and her sons read. The case of the objector, therefore, dismissed in accordance with the compromise petition. The case is ex parte and now goes to third Subordinate Judge for enquiry and report.' The third Subordinate Judge accordingly recorded the evidence of the witnesses examined on behalf of the applicants for probate, and being of opinion that the Will had been proved, forwarded the records to the District Judge with a recommendation that the probate might be granted. On the 22nd March, the District Judge formally granted probate of the Will. On the 3rd December 1907, the petitioner filed the present application for revocation of the probate on the ground that the Will was not genuine, and that the compromise was collusive, fraudulent and seriously injurious to him. The District Judge had rejected the application on the ground that the petitioner had for 4 or 5 years acquiesced in the disposal of the property according to the terms of the Will and the compromise and also on the ground of estoppel. From this order the petitioner has appealed to this Court.

2. It has been contended on his behalf that the probate ought to be revoked because, it is said, that the District Judge acted irregularly in sending down the case to the third Subordinate Judge, who exercised the powers of a District delegate for enquiry and report. I am of opinion that the contention is untenable. Section 52 of the Probate and Administration Act contains by implication ample warrant for the delegation, only partial in this case, of his functions by the District Judge to his delegate. But quite apart from this, it is conceded that the District Judge did not act ultra vires in adopting the procedure he did. Therefore, if the petitioner was a party to the probate proceedings and the compromise, he is bound by the terms of the compromise which authorised the applicants to take out probate in the common or non-contentious form and it is not open to him now to turn round and ask for revocation of the probate on the ground that there was irregularity in the procedure followed in granting it. If he was not a party and is not so bound, he is entitled to have probate revoked, whether there were defects in the procedure or not.

3. Therefore, the real question for determination is whether the petitioner, Kunja Lal, must in law be deemed to have been a party to the probate proceedings and the compromise.

4. It is a fundamental rule of law that proceedings in a Court of probate are proceedings quasi-in-rem, and that a probate granted in solemn form is binding not only on the parties who have appeared or have been formally cited but also on privies, i.e., persons who being cognizant of the proceedings and having an opportunity to intervene have chosen not to do so. See Hoffman v. Norris 2 Phillim 230 (Note); Newell v. Weeks 2 Phillim 224; Duffy v. Brady Milward (Irish) 582 Ratcliffe v. Barnes 2 Sw. & Tr. 486 : 31 L.J.P. 61 : 8 Jur. (N.S.) 313 : 6 L.T. 658 Wytcherley v. Andrews L.R. 2 P. & D. 327 : 40 L.J.P. 57 : 23 L.T. 134 : 19 W.R. 1015 Nistariny Debya v. Brahmamayi Debya 18 C. 45; Rebells v. Rebells 2 C.W.N. 100.

5. 'If a person knowing what was passing', said Lord Penzance in Wytcherley v. Andrews L.R. 2 P. & D. 327 : 40 L.J.P. 57 : 23 L.T. 134 : 19 W.R. 1015, 'was content to stand by and see his battle fought by some body else in the same interest, he should be bound by the result, and shall not be allowed to re-open the case' the reason for the rule, as stated by Sir John Nicoll in Newel v. Weeks 2 Phillim 224, being that if he had been dissatisfied he might have intervened at any stage of the proceedings. It was accordingly held in Young v. Holloways (1895) L.R.P. 87 : 64 L.J.P. 55 : 11 R. 596 : 72 L.T. 118 : 43 W.R. 429 that though the applicant for revocation of the probate was cognizant of the proceedings in which probate was granted and had assisted the plaintiff in the previous proceedings, yet as he did not possess any interest in the subject-matter at the time of the pendency of the previous proceedings, and could not have intervened therein, he was entitled to apply for revocation. See also In re Bhuggobati v. Prasannamayi Dasi 27 C. 927 : 4 C.W.N. 757.

6. It may also betaken as settled law, one that has been established by a long line of authorities, and indeed recognized by the Privy Council as far back as 1837, that in a contentious proceeding, probate may be granted in common form in consequence of a compromise between the disputants, resulting in the withdrawal of opposition, and that it cannot afterwards be revoked except on proof of fraud or circumvention practised either upon the Court or upon the parties. Nicol v. Askew 2 Moore's P.C.C. 88; Norman v. Strains L.R. 6 P.D. 219 : 50 L.J.P. 39 : 45 L.T. 191 : 39 W.R. 744; Evans v. Saunders 30 L.J.P.M. & A. 184; Harvey v. Allen 1 Sw. & Tr. 151; Roadnight v. Carter 3 Sw. & Tr. 421; Carrit v. Christian L.R. 2 P. & D. 181 : 24 L.T. 236; Warmingham v. Norman Irish R. 1 Ch. 272; Monmohini Guha v. Banga Chandra Dass 31 C. 357 : 8 C.W.N. 197; Wytcherley v. Andrews L.R. 2 P. & D. 327 : 40 L.J.P. 57 : 25 L.T. 134 : 19 W.R. 1015. In the leading case of Nicol v. Askew 2 Moore's P.C.C. 88, where probate of a testamentary paper in the nature of a codicil had been granted in common form by consent in consequence of an arrangement between the parties, and afterwards one of them applied for revocation of the probate on the allegation that the conditions on which such consent had been given had not been complied with, their Lordships of the Privy Council observed thus: 'Unless fraud or circumvention in obtaining the probate was satisfactorily proved, the admission of the paper to probate was conclusive: that though it might be true as urged by the respondents, that the proof would not have been allowed to be made but upon the conditions of the parties concurring in the arrangement for the division of the property, yet that as they were all connusant of their interests and acted deliberately and advisedly, and without fraud, the circumstance of the agreement not being carried out as some of the parties contemplated, was no ground for varying a decree of the Court of probate, which could only be reversed upon the clearest proof of fraud and circumvention in procuring it.'

7. When a probate is granted in common form by reason of a compromise between the parties, the terms of the compromise cannot be embodied in the order or, as is sometimes expressed, made a rule of Court, for the reason that a Court of probate cannot in many instances enforce the terms, Evans v. Saunders 30 L.J.P.M. & A. 184 Roadnight v. Carter 3 Sw. & Tr. 421; Carrit v. Christian L.R. 2 P. & D. 181 : 24 L.T. 236; Hammond v. Hammond Ir. R. 8 Eq. 322; but they may, however, be enforced by an action if they are otherwise unobjectionable.

8. But though a probate obtained in common form as the result of a compromise is binding upon the parties to the compromise, it is not binding upon those who are not parties to it, even though they may have been cognizant of the former proceedings. A bargain, as pointed out by Lord Penzance in Wytcherley v. Andrews L.R. 2 P. & D. 327 : 40 L.J.P. 57 : 25 L.T. 134 : 19 W.R. 1015, only binds those by whom they are made. Persons, who are willing to stand by while a contest is going, are bound by the decision of the Court, but they are not compelled to abide by a compromise when no decision in fact has been come to by the Court.

9. When the terms of the compromise are agreed to by the parties who are sui juris, the Court of probate will not make an order binding the infants to the terms of the compromise. In Norman v. Strains L.R. 6 P.D. 219 : 50 L.J.P. 39 : 45 L.T. 191 : 39 W.R. 744, Sir James Hannen said: 'I am extremely unwilling, without knowing the circumstances, to bind infants to the consequences of a compromise which is entered into by the parties to a probate cause before me. I have really no means of forming any judgment upon the wisdom or prudence of the compromise. My duty is to determine whether or not a particular Will is the Will of the deceased person; but to enable me to say whether there were good grounds upon which counsel came to the conclusion that it would be prudent to make a compromise, it would be necessary that I should be informed of the facts of the case.' Having regard to the fact that the Court made no order on the petition of Nrityamayi, asking the Court on behalf of the minor Kunja Lal to sanction the compromise, I am inclined to think that the minor cannot be deemed to have been a party to the former proceedings, and, hence he is not concluded by them.

10. But though an infant has a right in such cases to apply, after he comes of age, for revocation of a probate obtained by consent, yet he may be debarred by acquiescence and delay for a long time or by subsequent ratification of the disposition of the Will from putting the executor to the proof of the Will in solemn form or from contesting its genuineness. Sea Hoffman v. Norris 2 Phillim 230 (Note); Mohan v. Broughton (1900) L.R. Prob. 56 : 69 L.J.P. 20 : 82 L.T. 29 : 48 W.R. 371.

11. The present petitioner Kunja Lal attained his majority in 1901 or 1902 and he did not make the present application until November 1907. Since attaining majority he and his brother have been managing the property they received under the compromise and enjoying the profits thereof. Besides it appears that in 1903 he and his brother instituted a suit in connection with the property against a tenant and in their plaint in that suit they relied upon the compromise as the basis of their title to the land. The petitioner is, in my opinion, debarred by acquiescence and delay from now contesting the Will.

12. The judgment of the Court below must, therefore, be affirmed, and this appeal dismissed. No order as to costs is made as the respondent does not appear.

Sharf-ud-din, J.

13. I concur.


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