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In Re: A.E. Forbes (Deceased), O.V. Forbes Vs. V.G. Peterson - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtKolkata
Decided On
Reported inAIR1941Cal417
AppellantIn Re: A.E. Forbes (Deceased), O.V. Forbes
RespondentV.G. Peterson
Cases ReferredDouglas v. Cooper
Excerpt:
- orderameer ali, j.1. 6-6-1940. this is one of those peculiar cases where i take a definite view but without having any supreme confidence that the view is correct. the facts may be very shortly stated. they will appear from the very useful list of dates handed in by the advocate-general which may remain on the record. mrs. adelaide elizabeth forbes died at dehra dun on 6th june 1939. she left a will dated 23rd january 1938, whereby mr. oswald vernon forbes and mrs. peterson, one of his two sisters, were appointed executors. the two executors together with the other sister, mrs. earle were residuary legatees in equal shares. there is a document in the form of a codicil dated 1st june 1939 whereby the residuary share of mrs. peterson is varied in favour of mr. forbes to the extent of a half.....
Judgment:
ORDER

Ameer Ali, J.

1. 6-6-1940. This is one of those peculiar cases where I take a definite view but without having any supreme confidence that the view is correct. The facts may be very shortly stated. They will appear from the very useful list of dates handed in by the Advocate-General which may remain on the record. Mrs. Adelaide Elizabeth Forbes died at Dehra Dun on 6th June 1939. She left a will dated 23rd January 1938, whereby Mr. Oswald Vernon Forbes and Mrs. Peterson, one of his two sisters, were appointed executors. The two executors together with the other sister, Mrs. Earle were residuary legatees in equal shares. There is a document in the form of a codicil dated 1st June 1939 whereby the residuary share of Mrs. Peterson is varied in favour of Mr. Forbes to the extent of a half and the two executors named are Mr. Forbes and a certain Mr. Owen O'Neill. The existence of this codicil was disclosed by Mr. Forbes, if I re-collect rightly, somewhere about 4th July 1939. On 11th July 1939, Mrs. Peterson applied for probate in the Chief Court of Oudh. She applied under Section 367 for the production of the will and the codicil, they being both in the possession of Mr. Forbes. On 12th July 1939 the Chief Court issued citations to the persons named in the codicil, and made an order for production.

2. I should have mentioned that in the petition for probate Mrs. Peterson disclosed the fact of the codicil and challenged the validity of its execution. The object of the process I have mentioned, whether it be right or wrong, was to cause those desiring to set up the codicil to come in and establish it. On 17th July 1939 there was a statement by Mr. Forbes commented on by the Court of Lucknow to the effect that the documents had been sent to Calcutta in an application for probate 'made' in Calcutta. The matter is immaterial. The application was actually made in Calcutta on 3rd August. Citations were issued by the Oudh Court on 25th July. On 26th July, that is to say, before Mr. Forbes had made his application in Calcutta, Mrs. Peterson entered a caveat in this Court, and on 9th August she supported her caveat in this Court by an affidavit. On 12th August Mrs. Peterson made an application for stay in this Court. On 23rd August Mr. Forbes took out a summons to set down his petition as a contentious cause and on 29th August I made an order setting the matter down as a contentious cause. I do not remember the matter being discussed, but I shall not rely, nor is it necessary to rely, upon my recollection. On 30th August Panckridge J. dismissed the application of Mrs. Peterson for stay in this Court. On 26th September 1939, Mr. Forbes executed a general vakalatnama in favour of a barrister at Lucknow to act for him 'in the above suit' and 'the above suit' is described as 'Mrs. Peterson v. The Estate of Mrs. Adelaide Forbes.' But it refers obviously to the petition for probate by Mrs. Peterson and the proceedings therein.

3. On the same date Mr. Forbes applied in the Oudh Court for stay of the proceedings in that Court. That application was dismissed inter alia upon the ground that Forbes was not effectively a party to any suit in that Court. We now come to the more material facts. On 13th October 1939, Mr. O'Neill filed a caveat in the Oudh Court. He was examined on oath apparently in lieu of an affidavit, and stated that he intended to oppose the application for probate, that it was for this purpose that he had filed the caveat, and he 'propounded the codicil' in his language 'in opposition to the will.' The Court made an order for adjournment for the purpose of Mr. O'Neill filing a written statement and for the settlement of issues. On 18th October 1939, the written statement was filed. Its form has been criticised, and it certainly is exiguous as compared with the more voluminous affidavits we are accustomed to see in these Courts : but it seems to be effective. Paragraph 3 admits that the document of 23rd January 1938 was the last will except that it was varied by a codicil of 1st June 1939. There is an additional plea supporting the codicil of 1st June 1939, as having been 'properly executed.' Paragraph 18 has some importance, or may have some importance. It states that the two attesting witnesses executed affidavits in Lucknow which have been filed by Mr. O. V. Forbes in his application in the Calcutta High Court. The significance of that is this. It is an explanation why those two affidavits, or one of them, are not produced in the proceedings to obtain probate of the will and codicil, that is to say, it is with an eye on Section 281, Succession Act.

4. On the same day an issue was framed as to the valid execution of the codicil, that being a point of fact in issue. The significance of establishing that codicil as a matter of theory I shall discuss hereafter. On 20th November 1939, Mr. O'Neill executed a vakalatnama in favour of a certain lawyer and the endorsement on the back of it, i. e., the note intended to relieve Mr. O'Neill from liability to pay the fee and put that liability entirely on Mr. Forbes has been referred to. On 24th November 1939, there was a further application for stay by Mr. O'Neill under Section 10, Civil P.C., which did not succeed. This was made on the day the case was fixed for hearing. The learned Judge did however grant further time until 30th November. The subsequent steps in Lucknow need not be referred to, because they only indicate the extreme hurry of Mr. Forbes and Mr. O'Neill to do nothing. It is quite clear that, whatever the cause which will remain an interesting psychological secret, the whole object of the course of action pursued by Mr. O'Neill and Mr. Forbes was to keep the Oudh Court satisfactorily amused without having a binding decision until the Court in Calcutta would grant probate on the application made there. In my view, however, that fact can only have at best the most limited bearing.

5. If the present applicant was entitled to take that course, and if by so doing he has succeeded, he is entitled to his success. It was certainly clever, and the only question is whether it was not too clever. On 30th November, that is to say, the adjourned date, evidence was not offered by Mr. O'Neill and probate therefore was granted of the document of 23rd January 1938, as the last will of Mrs. Forbes. I have not found a specific order to the effect that the caveat is discharged. But it was clearly the intention of the Court to discharge the caveat of Mr. O'Neill and grant probate. Probate was actually issued from the office in January 1940 and on 8th April 1940, an appeal from the order granting probate was dismissed. The application in this Court by Forbes came before me on 17th May to set down the matter for settlement of issues. I took the view that it was best to have a preliminary discussion of the issues there and then in order to see whether it was desirable to set the ease down, and to see what the Court would be called on to go into. The issues then formulated are to be found in the judgment of that day. I divided the issues into issues of fact to be tried on evidence and issues other than those of fact. The latter are very general and amply cover any points that have been argued before me on this occasion.

6. 7th June 1940. - I occupied the time yesterday by narrating the facts in order of date. I will take up the matter from where I left off. I would have preferred to have considered my judgment, but I have at the request of counsel decided to meet the convenience of the parties by giving immediate judgment, at the expense of clarity certainly and possibly of correctness. I may as well summarise the essential facts in a simplified form and after doing so I will modify slightly the formula I adopted in discussing the matter with counsel. A applies for probate of X as the last will of Mrs. Forbes. I will so far as I can confine the expression 'will' in this judgment to its technical meaning, that is to say, the last will and testament, the last testamentary disposition of the testator. X is propounded in July 1939 by A as the will. A as one of the two executors named in X mentions the codicil Y, challenges it and cites all the per-sons interested in the will and in the codicil, in particular the executors named in the codicils B and C. There is a B in both but it does not affect the matter of principle. In August 1939 B, for reasons which are legally immaterial, finding, shall we say, the climate in Lucknow uncongenial, files a petition for probate of XY in Calcutta. He does not mention the previous petition in Lucknow on the legal justification that XY is not 'the same will.' I will explain the symbol XY in a moment. A had already filed a caveat in Calcutta and her affidavit in support was filed on 9th August 1939. In Lucknow c filed a caveat on 13th October 1939, a written statement shortly thereafter, and an issue as to the execution of the codicil was raised. On 24th November 1939 and 30th November, the days fixed for hearing, C adduced no evidence and on the latter date, probate of X as the will of Mrs. Forbes was granted in Lucknow. In May 1940 the application of B for probate of XY came before me for hearing.

7. These are the essential facts. Now, on the application before actually taking it up, it is contended on behalf of A that this Court should not proceed to try the issue on facts but should in the events which I have narrated stop short. I use a neutral expression, so as to include the variations of 'rejecting,' 'staying' and 'dismissing,' which may be different methods of arriving at the same result. Mr. S. M. Bose for B very pertinently though rhetorically asked why should the Court stop short? I should have mentioned if I have not done so originally, that although the great bulk of the property is in the jurisdiction of Lucknow Court, the testatrix died at Dehra Dun and some of the parties are within that jurisdiction; there is some property within the jurisdiction of Calcutta Court. This Court, therefore, undoubtedly has jurisdiction. Mr. Bose further contends that his client not only has a right but a legal duty to establish the last wishes of the testatrix and if this Court is not to allow it, it must he upon some specific legal grounds. There must be some specific legal obstacle (I now use his phrase because it has I think a certain significance) which prevents the 'trial of an issue as to the existence of the codicil.' With usual or perhaps more than usual skill, he proceeded to isolate possible legal obstacles, taking them in turn, 'res judicata,' 'stay,' 'specific power' under Section 279. I propose, without intending any disrespect to Mr. Bose's argument, to follow my own bent of thought and to take the specific matter of res judicata last. As I wish to state my general conception of the matter which I think is essentially involved, I have changed the symbol Z which I used in argument to signify the will if codicil Y was proved, to XY in order to show that if proved the will of the testatrix will be that combination. It must be understood that it is in my conception not X plus Y. XY is a different testamentary formula. Y being a codicil is certainly an adjunct, to use perhaps not a very appropriate expression, of X and certain more or less practical consequences follow, but if Y is included in the probate, a new testamentary formula XY comes into existence.

8. Now having regard to the nature of Y as I appreciate the matter, there could be no probate of Y distinct from the probate of X. You cannot probate Y separately as the last will or part of the last will. Y may in certain eases vary X to a very limited extent and in such cases, although Y is a subsequent discovery, a phrase which we may or may not have to further consider, the probate of Y may be obtained as a practical matter, in order, as it were, to add Y to X or combine Y with x. In a case like the present (and it is to this ease that my observations, although possibly general, are primarily applicable), the position is that Y contains a vital change, if probate is granted of XY in circumstances such as the present; it is in effect a new grant, necessitating revocation of the grant of X. I have not had time to consider, apart from the authorities which counsel were good enough to place before me, the text books other than Tristram and Coote and that to a limited extent, but p. 37 of Tristram and Coote may well be read in this connexion. Now Mr. Bose first of all wishes to contend that the will of which probate was sought in Calcutta is not the same will as that in respect of which probate was sought in Lucknow. Secondly, he does not wish Y to be regard-ed in the light of an adjunct or component part of X because if that is so, it would seem to follow as a matter of what I shall, for want of a better word, call, 'practical principle' that proceedings to establish Y should properly take place in Lucknow. But otherwise, that Y should, so to speak, be added to X where X is. I may as well say now what I have to say on the question of practical principle because it is very little. But I do take a definite view. I have not found any rule of law. It is therefore in a sense a matter of practice. We may refer to the English practice and remind ourselves that English practice at any rate is based generally upon the convenience rather than the inconvenience of the largest number. Mr. Bose points out correctly that in England it self there are no distinct Courts of Probate. India is composed of provinces with different High Courts having concurrent jurisdiction and that may make a difference. But I think the matter of practical principle can be inferred from what takes place in England, and in my opinion one may normally expect proof of Y to be sought and obtained where X is sought to be proved. This is so in the case of a subsequently discovered codicil. The proof of the codicil involves, we must remember, in any case such as the present revocation and 'bringing in' of the will. In my opinion the case is stronger in respect of a codicil discovered prior to the probate of X. I have been referred by the Advocate-General to In re Lucy C. Miller (1883) 8PD 167, when Sir James Hennen in the case of a subsequently discovered codicil refused to grant probate in England, and referred the pro-pounder to the place of original probate, namely, Antigua (again see Tristram and Coote, p. 36). Relevant to this point is the question of practice referred to in the footnote to Williams on Executors, page 211, Edition 121, where the case in In the goods of Benbow (1862) 2 S w & Tr 438 cited by the Advocate-General is referred to. I prefer the view indicated in Mortimer's Probate Practice, Edn. 2, p. 512 foot note.

9. I see no reason why Mr. Forbes and Mr. O'Neill should not have been cited to prove this codicil. I imagine that the actual citations were in the ordinary form, but in the circumstances of the matter the Court and all parties seem to have regarded the position of the caveators in Lucknow as analogous to that of persons called on to prove the codicil nor do I think that view in any way unreasonable or otherwise than in accordance with -testamentary law or practice. In any event, in my opinion, the caveators did propound the codicil in Lucknow. It follows, therefore, I think as a matter of practical principle that normally the proper place to prove a codicil is the place where the will is sought to be proved. Mr. Bose says 'No, in India, there can be concurrent proceedings of probate of the will of any person in two different High Courts having jurisdiction, that is to say, of X in Lucknow and XY in Calcutta and for the matter of that, of X in Lucknow and X in Calcutta.' He then would apply certain tests or rules of the forms (Ss. 10 and 11, Civil P.C.) to see which Court wins. He says that the Calcutta Court wins in this ease for the following reasons, which I hope I have correctly summarised. Upon principles established by a long line of authorities, probate proceedings are not a suit. There is no 'list' until the affidavit in support of the caveat is filed. Then only it becomes a suit or something like a suit. Next, he says that in this case the Calcutta suit is 'more comprehensive' because it is for probate of XY whereas the Lucknow Court has only the miserable X. Therefore, if there is any risk of collision, it is the Lucknow Court that should withdraw or should have withdrawn. He proceeds further and contends that in fact there is no risk of collision; the umpire has only to apply carefully the rules of the Civil Procedure Code (Ss. 10 and 11), and there need be no actual bump.

10. Speaking for myself those very proceedings are a sufficient juridical collision, to affect my juridical nerves. Secondly, it seems obvious that whether we do or do not reach the stage of collision, the parallel process for which Mr. Bose pleads does involve an exciting but to my mind undesirable race. I come now not perhaps logically to deal with another aspect of Mr. Bose's contention that the Lucknow proceedings were of narrower scope or less effective kind than those in Calcutta. This branch of his argument is important because upon the result of it depends his main objection to the res judicata point. I refer to his contention on the fact that there never were in Lucknow any proceedings in respect of Y. That the proceedings in Lucknow were so far as Mr. Forbes and Mr. O'Neill were concerned not intended to have any valid or binding effect. I agree but as at present advised I am not prepared to agree that even before the caveat was filed in Lucknow, the proceedings were wholly ineffective in respect of Y. It is quite true, to anticipate Mr. Bose's point, that a citation is not a summons and that on citation neither Forbes nor O'Neill became formal parties to that proceedings, but it still seems to me that the steps taken by A in Lucknow to a material extent attracted (I may change that word, if I think of a better) B and C to the Lucknow Court in respect of the codicil. This view of course depends upon the view I have taken of what I have called the question of practical principle. Normally where persons B and C know that a codicil is in existence and challenged by the executors propounding the will and who cite those interested in propounding the codicil including themselves, one does not expect them to take the first train to Calcutta. After the caveat filed by O'Neill the position is of course stronger. Mr. Bose, however, still contends and for this contention he relies upon a critical examination of the actual proceedings in Lucknow that 'there were no proceedings in respect of the codicil.' He relies on the fact that there was no separate petition, that there was no fresh citation, that the provisions of Section 281, Succession Act, were not complied with and lastly upon the view taken in Venidas Nemchand v. Champabi ('30) 17 AIR 1930 Bom 29 to the effect that where there are rival wills there must be rival petitions.

11. As regards Section 281. The affidavits of the attesting witnesses had, I think, with intention gone to Calcutta. In my opinion this is not a defect which vitiates the proceedings. I do not for the moment especially as I have not had time to go through the cases attempt any fresh solution of this legal conundrum, when is a suit not a suit, when does it begin to be a suit and so forth. When X is propounded in a proper proceeding and codicil Y is referred to in that proceeding and challenged and those interested in propounding the codicil come in and file a caveat substantially and substantively pro-pounding their codicil, I cannot see why it is not a proper and effective proceeding in support of the codicil. I see nothing desperately immoral in the procedure adopted in this case by the Lucknow Court. Both testamentary documents were before them and in my view the Lucknow Court was entitled and bound to adjudicate on them and to decide whether the will of Mrs. Forbes was X or whether it was XY and to grant the probate accordingly. In stating this view I must not be taken to differ from any decision of the Bombay Court based on technical and procedural consideration arising from the Bombay rules. Following again my own bent of thought and still leaving the question of res judicata to the last I proceed to state the dilemma as it appears to me in which this Court is placed when asked now to grant probate of XY, a dilemma which Mr. Bose dealt with so effectively as almost to dispel my apprehensions.

12. In this case if my view of the principle involved is correct, Y, notwithstanding that Y is a codicil, i. e., is an adjunct of X, X and XY as wills are in principle mutually exclusive. Probate of X has been granted. It has not been revoked. There is no application to revoke it either in this Court or in the Court of Lucknow. The probate of X is a judgment in rem. I am now asked to grant probate of XY. It is quite true that if this Court or the Lucknow Court refuses to proceed with or dismisses the application what might be the wishes of the testator will never be established. It involves not only in this case the interests of Forbes but of the new legatees named in the codicil. That has weighed with me. But it seems to me still certain that I should be making a different grant of probate. Assume that there is no question of declining jurisdiction as to which I shall express myself further, even assuming that the two proceedings are in the same Court I must say that the prospect fills me with misgivings. The prospect of two wills, conflicting wills, probate of one of which is granted in Lucknow and another of which is granted in Calcutta is to me alarming. Clearly they cannot stand together. Clearly that is a position which no Court can contemplate. I do not think that in this connexion Mr. Bose contended (or at any rate he contended but faintly) that the wills would not be conflicting, that the grant of X can stand by the side of the grant of XY, although in connexion with the other point, the point of res judicata, he still insists and I shall refer to it again that 'the issue as to the codicil,' I use his own language, is not in any way determined. It seems to me that the probate of XY is sought from me not as end in itself. How-far further steps have been actually planned I do not know, but probably a further application for revocation is contemplated either in Lucknow or in this Court. None, however, has yet been made.

13. In order to meet my difficulty on this point, Mr. Bose proceeded very tactfully to allay my apprehensions by vesting me with powers of revocation. He referred to Section 263 (c) and (d), Succession Act, in order to con. tend that should the probate of XY be granted in this Court the Court may revoke. He further contended that having regard to the terms of Section 264 which must not be narrowed down that this Court has as much power to revoke as the Lucknow Court, I doubt very much whether this is the meaning of the section. But whether it is or not I take the view that the application to revoke should normally be made in the Court where the grant has been made. That I believe is the English practice, and I think it follows also from necessary accompaniment of revoking a will, namely the process of calling in Mr. Bose's argument that a 'subsequently discovered will' under Section 225 means a will subsequently discovered to be probated by the Court I reject. It should be borne in mind further in this connexion that the applicant for probate of XY involving revocation of probate of X is himself, being a party cited in the Lucknow proceedings, disentitled to revocation.

14. This application therefore as I have indicated involves as a necessary consequence revocation either in Calcutta or in Lucknow. Whether I have or have not jurisdiction, I decline to entertain any application which has the effect of revoking or as a necessary consquence involves the revocation of the grant in Lucknow. It is not as Mr. Bose expressed himself to apprehend owing to an excess of sensibility on my part for the feelings of the Lucknow Court. There is no question, to use his words of avoiding any 'insult.'

15. So far as I am concerned, no High Court in India thinks in terms of insult. It is purely technical question, although that technical question in this case having regard to the peculiar conditions to which Mr. Bose referred, may involve considerations of good sense or conventions of conduct which are after all based upon good sense. It is not avoiding insult to the Lucknow Court. It is extricating this Court from an invidious position in which it has been placed, and to do that, whatever may be the precise limits of Section 10 or Section 11 or any other section, I consider this Court has inherent jurisdiction. Let me deal more specifically, but not at length, with the question whether this Court should have withdrawn or should withdraw in any manner, whether the process be rejecting 'staying' under Section 10 or 'staying' under inherent power.

16. The proceedings before Panckridge J. have been referred to, and it is said that the difficulties of concurrent or parallel proceedings were pointed out. The effect of that decision was merely to refuse to apply Section 10 at a time when the Lucknow proceedings had not, according to the authorities, become contentious. My own act in setting down the proceedings as a contentious cause has been relied upon by Mr. Bose so far as I remember, although the matter appears in the affidavits, it was not agitated, and speaking for myself, even if points are raised in these rapidly disposed of applications in Chambers, I am not able to give them full consideration. It may however be that owing to steps taken in this Court the power to reject under Section 279 is no longer available. I agree with Mr. Imam, who assisted me in reply that it is not a question of waiver. If the Court has power to reject, the parties cannot waive, or deprive the Court of that power. I do not think that although the petition be admitted or proceeded upon, the Court ever loses the power to disclaim jurisdiction and therefore to reject the application. Whether in circumstances such as these were, had that step been taken originally, B and C might conceivably have taken steps to prove their codicil in Lucknow, is another question. I do not think that B or C, or B at any rate, has a right to complain, having regard to the fact that he did not mention the other proceedings in his petition. But it makes it more uncomfortable for the Court.

17. In view of the course upon which I have decided, it is not necessary for me actually to reject this petition, although I do not disclaim jurisdiction to do so. With regard to the phrase 'same will' in Section 279, notwithstanding the actual words I believe, and for the purpose of this case I hold the intention to be that the applicant should disclose all proceedings in respect of any testamentary document of the testator in respect of whose testamentary document or documents he is himself taking proceedings. Any other view leads to difficulties such as have in fact arisen in this case, and which it is obviously the intention of the legislature to avoid. The Court's power to reject in the section is not qualified. As to Section 10 itself, as already indicated, I propose to avoid, so far as possible, the extremely vexed and to me vexing question as to which is the prior instituted suit; if a suit, I am not prepared to hold that in all oases the Courts in applying the principle of Section 10 to matters such as these will rely automatically on the date upon which the affidavit in support of the caveat is filed. I think there may be many cases, and this, so far as I am concerned is one of them where for the purposes of applying the principles involved in Section 10 the Court will, affidavit or no affidavit, dates, or no dates, proceed upon what it thinks is substantially the earlier proceeding, or substantially the substantive proceeding.

18. There remains 'inherent power.' If this matter had been brought before me after caveat and before the grant in Lucknow, speaking for myself-and these are all matters to some extent of outlook-I should have stayed these proceedings in order to allow B and C to proceed to proof of their codicil in Lucknow. I think, and as I have said, the motive is entirely immaterial and does not weigh in any way against the applicant. I think however this Court wag being made use of in order to get ahead of the Lucknow Court. The justification or otherwise of resorting to inherent power cannot be less when the grant has actually been made. I now come at last to res judicata. I fully appreciate that when we use the phrase 'res judicata' we mean something like it just as when we use the phrase 'suit' we mean something like a suit-good imitations in both cases. Mr. Bose's points (which I hope I do not impair by the following analysis) are as follows:

(1) No proceedings in Lucknow in respect) of Y. This matter has already been discussed everything that Mr. O'Neill did (not Mr. Bose's language) may have been good Hibernian fun but was of no legal effect. If right on this point, it certainly carries Mr. Bose a very long way, though the question still remains, what is the effect if the grant be actually made. Does the grant in substance determine the issue?- to refer to Mr. Bose's actual phrase 'issue as to the existence of the codicil.' The issue in my opinion, in principle, is whether XY is the last will of Mrs. Forbes. (2) O'Neill a party but no final decision. Dismissed for default. Again I use Mr. Bose's own phrase, if I have noted it down correctly because I think the phrasing was intentional. O'Neill entitled therefore to make another application for probate of the codicil (not 'probate of XY'). (3) Forbes not a party; citation not a summons, Mr. Bose relies upon the authorities. Mr. Imam in reply contended that Forbes, even though not a party, was a privy or should be deemed to be a party. I do not propose however to rely upon any question of especial estoppel. I have no doubt upon the facts that what I referred to as Box and Cox Procedure, whereby O'Neill was doing something in Lucknow and Mr. Forbes was doing something in Calcutta, was intended to enable Mr. Forbes to disclaim or evade any unhappy results of what might take place to his disadvantage in Lucknow. For the purpose of my decision, it is not necessary to decide that Mr. Forbes was a party. (4) The dismissal was a dismissal for default, and therefore no adjudication on the merits. I have not had time to consider the cases and I may before signing the judgment do so. I refer to the cases which establish the absence of finality in dismissal for default of petitions for probate, Ramani Debi v. Kumud Bundhu ('10) 14 C W K 924, Burjya Kumar Deb v. Jaynarayan Deb ('26) 18 AIR 1926 Cal 1057, Ganesh v. Ram Chandra ('97) 21 Bom 563, Kalyanchand Lalchand v. Sitabai ('14) 1 AIR 1914 Bom 8 at p. 329. But the position here is, and we come back again to the principle I have suggested, that there is a probate of X unless the principle I have suggested is wrong, there is a decision that x is the will and that decision excludes XY being the will.

19. Mr. S.M. Bose therefore is compelled to fall back on the narrower language of 'no decision as to the codicil,' and it seems to me, pushing the matter to a conclusion, that his argument on this point is on principle inconsistent with what he accepts on the other aspect of the case that X is one will and that XY is another, in other words, for one purpose he combines and for another purpose he splits. Coming back to the same question, if my conception is right, probate of X involves a decision that XY is not the last will of Mrs. Forbes. Whether this be called res judicata I do not particularly care. But it is my view that I should not proceed further with this trial for the purpose of giving a decision to the contrary. Eight or wrong, it all shows that extreme inconvenience of parallel proceedings I repeat that I have discarded, so far as one can, any question of prejudice, and nay conception is wholly confined to this that a course has been taken which results in this Court being asked to probate one will of Mrs. Forbes, after probate of another will of Mrs. Forbes has been granted by another Court-unrevoked, and so far as the present applicant is concerned, unrevocable. I have not finally considered my order but my present view is that I shall stay this application sine die, with liberty to bring it on if and only if revocation of the probate granted by the Lucknow Court is obtained from the Chief Court of Oudh.

20. 21st June 1940. - The order remains that which I indicated. The application is stayed sine die with liberty to bring it on upon notice to the other parties in the event of the probate granted by the Lucknow Court being hereafter revoked.

21. With regard to the costs, I have heard Mr. Khaitan, who was as usual not only plausible but reasonable. He cited the case in Douglas v. Cooper (1834) 3 My & K 378=40 E R 144, the facts of which bear a considerable resemblance to those of the present case. He contended that this executor, his client, was entitled to have the Court's view. Indeed it was his duty to obtain the Court's view. He reminded me that he had already paid costs in Lucknow. But the circumstances of this case are very peculiar, and in the view which I have taken of them I do not think it would be right for me to put the costs of the proceedings here upon the estate. In the view which I have taken it would have been perfectly proper for Mr. Forbes to have proved the codicil in Lucknow and there he would certainly have been entitled to his costs out of the estate, unless extraordinary circumstances had been established. The costs incurred here are, in my opinion, extraordinary. In point of fact I have considered making some division of costs, that is to say, allowing the costs to Mr. Forbes out of the estate up to a particular time, namely the grant of probate in Lucknow. I imagine however that the bulk of the costs has been incurred thereafter, and that it would make very little difference. Indeed the difference in a case like this, between party and party costs and attorney and client costs must in any event be very great.

22. In the circumstances and for reasons which I hope I have indicated in my judgment I must direct the costs of this matter upto this date to be paid by the applicant. I will make an interim order restraining the executor and executrix of the will probated from distributing the estate in such a manner that persons having rights under the codicil may be adversely affected. This order will hold good until Monday week, within which time Mr. Khaitan must make a formal application before me on notice to the other side pending any appeal to be filed. In the event of this application not being made by the date fixed the interim order will stand dissolved.


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