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Pashupati Mukherji Vs. Shitalkumar Sarkar - Court Judgment

LegalCrystal Citation
Subject Family
Decided On
Reported inAIR1931Cal587
AppellantPashupati Mukherji
RespondentShitalkumar Sarkar
Cases ReferredNeale v. Gordon Lennox
- .....coming on for hearing on 12th february 1930, and did, in fact, come on in the afternoon and the learned counsel for the propounder had, in part, opened his case. it appears from the evidence that, on that evening, there was a meeting at the house of the leading counsel for shital, who had filed a caveat against the executor's application for probate and was defending the probate suit. it is said that at that meeting there was a discussion as to the terms of a settlement between the caveator and his attorney and counsel. on the next day, 13th february, certain negotiations took place between the leading counsel on either side according to which it was ultimately settled between the counsel that shital should get rs. 20,000 and, on receipt of that amount, should withdraw his caveat. it.....

Rankin, C.J.

1. In this case a woman of the name of Rajabala Dassee died on 1st June 1928. It is alleged that, on 31st May of the same year, she made a will. By the terms of that document, the present appellant before us, Pashupati Mukherji, was made the executor. He does not appear to be a relation of the deceased. The will itself gives certain pecuniary legacies by Clause 2, and thereafter it says that the executor and one Jeeban would be entitled to the residue of the estate. So that it is a very simple will, neither Pashupati nor Jeeban being a relation of the testatrix. It appears that one Shitalkumar Sarkar, the present respondent before us, is a relation of the woman, namely her brother and that, except for a pecuniary legacy of Rs. 500, he is excluded from participation in the woman's estate if the will is a valid will. On 7th June 1929 Shital applied before the Court at Alipur for letters of administration of the estate and effects of the deceased Rajabala on the footing of intestacy and this application was on 24th of that month dismissed for want of jurisdiction. On 10th June of the same year, Pashupati, the executor, applied in the High Court for probate of this will. The matter was coming on for hearing on 12th February 1930, and did, in fact, come on in the afternoon and the learned Counsel for the propounder had, in part, opened his case. It appears from the evidence that, on that evening, there was a meeting at the house of the leading counsel for Shital, who had filed a caveat against the executor's application for probate and was defending the probate suit. It is said that at that meeting there was a discussion as to the terms of a settlement between the caveator and his attorney and counsel. On the next day, 13th February, certain negotiations took place between the leading counsel on either side according to which it was ultimately settled between the counsel that Shital should get Rs. 20,000 and, on receipt of that amount, should withdraw his caveat. It appears that Shital had in the meantime executed a mortgage in favour of one Kanailal Pal of his interest in the woman's estate and it was necessary in order that the compromise should be secured that this mortgagee should be made a party to the petition of compromise. The terms of the compromise were typed out and they were signed by the leading counsel for the caveator defendant and they were signed by Shital himself on the counsel's table before the learned Judge, when the matter was mentioned to him on that day, 13th. The learned Judge, thereupon, treating the case as one in which all contentions had been withdrawn, heard the evidence of one doctor witness to the execution of the will and made a formal order that the terms of the agreement be recorded. Jeeban and Kanilal Pal were not in Court at the time and had not signed the document. So he gave liberty to those two gentlemen to sign. He discharged the administrator pendente lite, found the will proved, directed probate to issue and directed the administrator to make over the assets to the executor at once.

2. It appears further that there is evidence that the caveator defendant met his loading counsel later on in the day with the mortgagee Kanai at a time when Kanai signed the document. All the four parties signed the document in the course of the day. Thereafter, on 27th February 1930, Shital through certain attorneys wrote to his attorney Shailendranath Basu saying that he wanted a change of attorney and that he was going to apply for a revocation of the grant. He did apply on 5th March 1930, and, on 13th March 1930, he gave notice of an application to set aside the decree of 13th February. At that time it appears that the decree had not been brought into existence, that is to say there was a draft decree, but that the decree had not been completed. I understand that it was not signed by the learned Judge and was not filed. In effect, the decree had not been perfected. Thereafter, it appears that, on a representation being made to the learned Judge, ho was of opinion that it was only proper that the matter should be dealt with on the oral evidence and the matter came before the learned Judge in this form : first of all, there was a petition by the caveator Shital, in which he made various allegations. These allegations were to the effect that he had found certain conduct on the part of the executor which was suspicious and which raised suspicion as to whether his attorney Babu Shailendranath Basu had been playing him fair. He says that he never took any part in any negotiation for settlement at his counsel's house on the evening of 12th, that he never took any part in any negotiation on the morning of 13th and that when he came to Court on 13th he was asked if his witnesses were there, and, on telling his attorney that his witnesses were there, he was asked to put his name on a document which he now finds contains the terms of settlement. He says that he signed that document thinking that it was some paper which was necessary to further contest the case, that the paper was never read over or explained to him by anybody and that he did not know until he found that the suit was not being further contested that he was supposed to have settled the suit or that the paper was a paper containing the terms of settlement. He further says that he objected to the settlement from the beginning and that his attorney was acting collusively with the executor in the matter.

3. Now, at the hearing of this application before the learned Judge, an entirely different case was made. In fact it is abundantly evident to me that Shital is a person on whose oath no Court of law would be justified in placing any reliance at all. Not only has Shital made statements that are untrue, but he takes no care whatever to preserve any consistency in the various untruths he tells. He says in his evidence that the attorney said nothing to him about the paper being required for contesting the case. He says that the attorney never told him anything about the paper. Ha assumed that such a paper was required for the purpose of contesting the suit. He says that there never was any conversation between him and his attorney in respect of that paper, that his leading counsel, Mr. S. C. Bose, gave false evidence when he said that he (the caveator) was at Mr. Bose's house on the evening of the 12th and that it is false that he was at Mr. Bose's house on the morning of the 13th. Now, Mr. S. C. Bose, his loading counsel, says that on the 12th his client was not only met in the corridor outside the court-room but also in his house the same evening and that the client was present throughout the conversation as regards the desirability of a settlement. He says also that his client and the attorney were at his house on the morning of the 13th, when he came back after certain negotiations with the learned Counsel on the other aide. He further says that, at about midday of the 13th, the client and the mortgagee came to him and the mortgagee's signature to the agreement was taken, Mr. Hazra, the junior counsel for the caveator, says that he did not read out or explain the document to the client on the morning of the 13th but that he told him that he (Shital) was going to withdraw his caveat for Rupees 20,000. He says that the client was at Mr. Bose's house on the morning of the 13th, that they had a consultation on the evening of the 12lih, that his client was told all about it, that the client was asked by him about the value of the estate and was told by him that ho was really getting an equivalent of one-third of the estate under the proposed compromise.

4. In these circumstances, the learned Judge has given his decision. On the merits, as regards the terms of the settlement, the learned Judge takes this view that he is not satisfied that the caveator had explained to him the nature of the bargain. He says:

there might have been a talk of settlement, but there is nothing to show that the caveator know what the terms of settlement would be and that he understood them or that they were explained to him.

5. The learned Judge has commented upon the fact that the attorney was not called and, finding that it is not clear that either of the counsel or the attorney had explained the terms of the settlement carefully to the caveator, he is not prepared to hold that the caveator knew what he was signing. The learned Judge says that the caveator may have had some idea on the subject, but he thinks that it by no means follows that the caveator realized that the contest then and there should come to an end, and that, having regard to the fact that the agreement was in English which was not the language of the caveator which might require interpretation, he is not prepared to hold that the caveator is bound by it. He makes certain comments also upon various matters which were not really inquired into, but matters which are alleged in the opening paragraphs of the petition of the caveator as circumstances throwing great suspicion upon the bona fides of the attorney.

6. In these circumstances an order has been drawn up stating that

it is ordered that the decree passed on the 13th February directing grant of probate *** be and the same is hereby vacated and this suit be restored on the general list of suits for trial on its merits and it is further ordered that Pashupati Mukerji-the proponent-do pay to the caveator his costs of and incidental to these proceedings before the learned Judge as of a trial.

7. From this order, the present appeal has been taken before us.

8. Now the first question which has to be noticed is that there was no decree at the time the learned Judge was hearing the application with which we are now concerned; and, in these circumstances, we have to consider whether it was not a matter which was within the power of the learned Judge, if any circumstances of suspicion came to his notice formally or informally, to say that he was not prepared further to proceed upon the view that he was satisfied by the evidence given at the original hearing that this will was the last will of the testatrix. It appears to me that the position before a decree is drawn up and perfected and the position thereafter are very different and it is quite clear that when a Court is dealing with the question of proof of a will, it is entitled to insist upon sufficient proof to satisfy itself. In this case, for example, the various pecuniary legacies entirely depend upon the validity of the will, and, if, on hearing the evidence of one witness, the Court is satisfied about the will, and afterwards before the decree is drawn up, the Court for any reason thinks that that evidence is not sufficient and changes its mind as to the sufficiency of the proof, it cannot, I think, be doubted that it is open to the Court to say that nothing has been so far done which binds its hands in any way and that the matter should be reheard and further evidence received upon the question. It is not a case of the same character (as has been very rightly conceded) as cases of orders which depend upon consent of parties in matters where the parties are entirely their own masters. The case of Harvey v. Croydon Union Rural Sanitary Authority [1883] 26 Ch. D. 249 which has been referred to, is not really a case of the same character as the present. If a person makes a bargain, no doubt, even before a decree has been passed thereupon, he must give good reasons for asking the Court to permit him to resile from his bargain. Here, so far as proof of the will is concerned, the matter is not a question of bargain and the Court is not bound by any agreement. It does seem to me impossible to say that Buck-land, J., was not entitled upon mere circumstances of suspicion to say that he would not further proceed upon the facts placed at the original hearing but would insist upon the case being set down and having a fuller investigation of the circumstances.

9. Then it is said that the learned Judge has wrongly found that Shital did not know the nature of the terms of the settlement and it is pointed out that he must have known that he was signing a document which contained terms of settlement because it is manifest that he is speaking falsely when he says that he had no idea that the document which he was signing was a settlement of the case. In that respect, I am bound to say that the learned Judge's judgment is not quite in accordance with the evidence. It is very difficult indeed to suppose on the evidence in this case that, when Shital signed that document, he did not know that he was signing some sort of compromise in the case. It is quite true that the ordinary law is that knowledge of the general character of the document which he was signing would be sufficient to make the document binding against him and in favour of the party contracting with him. There, again, for the present purpose, one has to remember two things. First of all, the learned Judge's hands were not bound, so far as regards issuing probate of the will, by anybody's consent; and, secondly, even if they were, the case was a case in which a party was asking the assistance of the Court within the meaning of that expression as used by Lord Halsbury in Neale v. Gordon Lennox [1902] A.C. 465, and it would be in no way conclusive to say, as a matter of ordinary law of contract, that the proponent would be entitled to assume that the bargain represented by the document which Shital had signed was a bargain to which he assented. That being so, it does not seem to me that it is possible for us in this case to hold that the learned Judge was wrong in saying that he was not satisfied with the previous evidence or that the previous evidence without further investigation should not be acted on before probate is issued of this will.

10. The next question which arises is this: Learned Counsel for the proponent says that a bargain has been made and it is a bargain between four persons, Jeeban and the mortgagee as well as the propounder and the caveator, and that, if this probate ease is investigated de novo, then whether the will is found proved or held not to be proved, difficulties will arise as to whether Kanai, the mortgagee, has any interest under the terms of the settlement. Accordingly, he says that, if this case is to be retried, it ought to be laid down by us that the caveator should not be allowed to insist upon his caveat or to resist the grant of probate of the will and that that should be laid down, first of all, because that was the man's bargain and, secondly, because, in view of the obligation incurred by the propounder to the mortgagee, the caveator should be held to be stopped from resisting the grant of probate of the will. In my opinion there is no validity in these suggestions.

11. So far as regards the proof of the will the case must go back before the learned Judge and it is quite clear to me that it would be wrong to lay down that the caveator because of his previous bargain or conduct should be prevented from laying any facts before the Court upon' the new enquiry.

12. The circumstance which then requires to be considered is this: The learned Judge having proceeded to some extent upon matters of suspicion which he collected from that part of the caveator's petition which was not dealt with by the oral evidence, made an order against the propounder that costs of the caveator before him should be paid by the proponent. I cannot see how this order can be justified at all. It is quite clear that in this matter the proponent has done nothing whatever to entitle the Court to visit him with costs. The whole difficulty and trouble has arisen, first of all, by the foolish conduct of the caveator himself upon his own story, secondly upon his own story by the conduct of his attorney and counsel and, thirdly, I should add for myself, because of the high degree of untruthfulness of the caveator himself. In these circumstances, having made a bargain he has come before the Court to show reasons why he should not be held to that bargain. Having regard to the fact that the proof of the woman's will is not a matter merely of personal interest of Pashupati on the one hand and Shital on the other, the learned Judge has not thought fit to hold him to his bargain to withdraw his caveat and withdraw all his opposition. Why in the world the executor should pay his costs in respect of this application, I am at a loss to understand. I am very clearly indeed of opinion that the proper order as regards costs before the learned Judge should be that Shital should pay the whole of the propoundor's costs before the learned Judge and, as this appeal must be allowed on that question, I am also of opinion that Shital must pay the propounder's costs of this appeal.

13. It has been insisted upon by the learned Advocate-General, on the part of the propounder, that a bargain such as the present is in no way contrary to public policy and I entirely agree that a promise to withdraw a caveat and to get certain money from the executor, if the will is proved, is a bargain which, if fairly made, is in no way contrary to public policy. It is a very different thing however to say that such a bargain as that will be enforced in the sense that the Court in a probate suit will see that it is specifically performed by not allowing the caveator in spite of his previous promise to contest the question whether the will is the will of the testatrix or not. I am clearly of opinion that though a breach of that promise may sound in damages, it will be entirely wrong for us to lay down in a probate case that a man's previous promise will stop him before decree from laying any fact before the Court with reference to the question whether a certain document was really executed as a will by the testatrix or not. I know of no authority which shows that in a case of this kind you could insist because of the bargain on having a caveat discharged so as to prevent a person who desires to show that the testator never executed such a document from bringing such facts to notice at the time when the Court is considering the grant of probate of the will. The appeal therefore must be allowed but only as regards the question of costs. The costs before the learned Judge will be on the same scale as allowed by him that is, on scale No. 2.

C.C. Ghose, J.

14. I agree.

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