1. This is an appeal by the plaintiffs under the following circumstances. They sued for khas possesion of certain lands and to establish their 'title through one Bamamoyi, who took a lease of these lands in 1908; she died in July 1913, her husband Thakurdas pre-deceased her as also her son Sashi, who left him surviving his widow Saroda, defendant No. 2, an infant; Thakurdas had a cousin Arun, who survived him, and two nephews, the sons of a deceased cousin Madhusudan, who are the appellants. On the 7th April 1915 the father of Saroda, as her guardian, purported to sell to the first defendant the lands in suit. On the 9th June 1915 the plaintiffs obtained Letters of Administration to Bamamoyi's estate from the Hooghly Court and as such administrators commenced the present suit. The Munsif decreed the suit with costs and awarded Rs. 5 as wasilat against the first defendant. The Additional District Judge allowed the appeal and set aside the decree of the Munsif, holding that the grant of Letters of Administration had been fraudulently obtained, inferring that as no special citation was issued to Arun, his existence was concealed from the Court which issued the grant. Two points are urged in second appeal: (1) that until the grant is revoked in the Probate Court which issued the grant, the title of the plaintiffs as Bamamoyi's representatives stands; (2) that on the facts as stated by the District Judge, fraud cannot be inferred.
2. I should have myself been inclined to think apart from authority that arise a grant of Letters of Administration has been made, this cannot be questioned except in the Court which made the grant, but the respondents rely on Section 44 of the Evidence Act and on some observations of Markby, J., in Komollochurn Dutt v. Nilruttun Mundle 4 C. 860 : 4 C.L.R. 175 : 2 Shome L.R. 126 : 2 Ind. Dec. (N.S.) 228.
3. Section 44 provides that any judgment, order or decree which is relevant under Sections 40, 41 or 42 may be shown by any party to a suit or other proceeding to have been obtained by fraud, and Section 41 includes a final judgment, order or decree of a competent Court in the exercise of Probate Jurisdiction and Markby, J., states at page 362 of the report cited above that the grant of Probate is the decree of a Court which no other Court can set aside except for fraud or want of jurisdiction. These remarks were not necessary for the purpose of his decision, as he states that fraud was not alleged, in the case. At page 363 he sets out the confusion that would arise if, after Probate is granted, the validity of a Will could be questioned in a civil suit and, quotes some opposite remarks in a decision of the Allahabad Court in Mayho v. Williams 2 N.W.P.H.C.R. 268 at p. 274 which seem to me equally applicable whether a grant is attacked on the ground of fraud or on grounds in which fraud is not an element.
4. The appellants referred us to Ambica Churn Das v. Kala Chandra Das 10 C.W.N. 422 and to a passage in the judgment at page 424, which is as follows: And we do not understand how such a defense as was raised in the written statement, namely, that the plaintiff was not the adoptive son of Nobin, and that the Letters of Administration were obtained by misrepresentation of the true facts, could be successfully made so long as the Letters were not revoked by a competent Court,' but I do not think that that passage decides the point, as in another passage in the judgment it is stated that no question of fraud or collusion, such as is contemplated by Section 41 of the Evidence Act and which might entitle the defendant to go into evidence for the purpose of proving such fraud or collusion in connection with the Letters of Administration, was raised in the defense.
5. It may be-useful, not forgetting the different considerations raised by Section 44 of the Evidence Act, to refer to the English rulings on the subject. In Allen v. M'Pherson 44 C. 860 : 4 C.L.R. 175 : 2 Shome L.R. 126 : 2 Ind. Dec. (N.S.) 235 (decided in 1847 at a time when grants issued from the Ecolesiastical Courts the House of Lords held by a majority that where a grant of Probate had issued from the Prerogative Court, the Court of Chancery had no jurisdiction to decide that a codicil had been obtained by-fraud. In Meluish v. Milton (1876) 3 Ch. D. 27 : 45 L.J. Ch. 836 : 35 L.T. 82 : 24 W.R. 892 Probate of a Will was granted to the executrix by the Court of Probate and the heir at law and sole next of kin of the testator Sled a bill in equity to have the executrix declared a trustee for him on the ground of fraudulent concealment by the executrix from the Probate Court of the fact that she was not the lawful wife of the testator. The Court of Appeal held that the Court of Chancery had no jurisdiction to entertain the case which was within the exclusive jurisdiction of the Court of Probate, and followed Allen v. M'Pherson (1847) 1 II, L.C. 19 : 11 Jur. 785 : 73 : R.R. 30 : 9 E.T. 727. In Ivory; In re Rankin v. Turner (1878) 10 Ch. D. 872 : 39 L.T. 611 : 27 W.R. 20 Letters of Administration had been granted to the defendant out of the Probate Division as the natural and lawful brother of the half-blood of the intestate and the plaintiff sued in the Chancery Division for administration of the estate, alleging that the defendant was illegitimate and that he was next of kin (Lush, J, held) and that as long as the Letters of Administration remained in force, they were exclusive evidence that the defendant was one of the next of kin and that the plaintiff's proper course of procedure was to apply in the Probate Division to have them recalled,- He says: 'If he (the defendant) was not the next of kin, the Probate Division has been deceived and the application mast be made to that Court to revoke its grant. It can only grant administration to the next of kin, and if the party applying is not the next of kin, the Court has no power to grant it to him; although, so long as the Letters remain, they are binding upon this and every other Court. I do not think that that is now in issue. I do not say that it is not competent for this Court to try the matter since the Judicature Act, but the Probate Division is certainly the proper Division in which to try it.'
6. In another case, however Priettman v. Thomas (1884) 9 P.D. 210 : 53 L.J.P. 109 : 51 L.T. 843 : 32 W.R. 842, Cotton, L.J. states at page 214, 'although the Chancery Division has no jurisdiction to revoke the Probate of the Will, it had full jurisdiction to decide that it was a forgery.'
7. The conclusion I have come to on the first point raised in this appeal is that having regard to the wide terms of Section 44 of the Evidence Act, it is not possible to say that it is not open to a Court, other than the Court from which a grant has issued, in cases of fraud or collusion to deal with the matter and decide whether the grant has been obtained by fraud or collusion. I think, however, that in such cases, and where it is open to the party alleging fraud to apply to the Court from which the grant issued, that the better course would be to stay the suit to enable an application to he made to revoke the grant. It is manifestly inconvenient that a Court, which has no jurisdiction to recall or revoke the grant, should deal with the matter when it can be dealt with in a Court which is both competent to pronounce on the fraud and, if necessary, revoke the grant.
8. But I think that this appeal must succeed on the second ground. The jurisdiction of a Court (other than the Court from which the grant issued) to pronounce on the validity of the grant only arises in cases of fraud and collusion and on the fasts here stated by the learned District Judge, I think that no such case is made out. With regard to the contention of the respondent that the District Judge has found that the defendant No. 1 has been recognised by the landlord and is not a trespasser, I think that the finding is erroneous and is based on a misconception of the Munsif s judgment, and that the Munsif was right in finding that he was a trespasser and that he acquired no title by obtaining a kobala from a person who had no title and thereby dispossessing the plaintiffs.
9. In the result the appeal succeeds and the judgment and decree of the Munsif will be (1884) 9 P.D. 210 : 53 L.J.P. 109 : 51 L.T. 843 : 32 W.R. 842, restored and the plaintiffs will be entitled to their costs in all Courts.
10. I agree.