1. This is an appeal in a suit instituted by the plaintiffs-respondents to obtain a declaration that they are 'the next reversioners to the estate of the late Babu Bachu Singh accordingly to Hindu law.' The defendant 1st party, Ramnandan Pershad Singh, obtained probate of the Will of Bachu Singh about three years after the death of the alleged testator which event took place on the 12th November 1899. The probate proceedings were contested by three sets of caveators of whom the present plaintiffs were the first. The District Judge found that the plaintiffs had no locus standi to oppose the grant, they not being the next reversioners of Bachu Singh, and the Will was thereupon proved without further contest. The decision of the District Judge was on appeal affirmed by this Court (Rampini and Mitra, JJ.,) on the 8th February 1905. The defendant No. 1, Ramnandan, who may be described, as the defendant, claimed to have been adopted by the deceased Bachu Singh so long ago, as the year 1875, and he was called the adopted son or kartaputra of the deceased in the Will of Bachu Singh which bears date the 6th November 1899. The question of adoption, however, was not investigated in the probate case, bat it has assumed importance in the present litigation because the plaintiffs cannot be the next takers if the defendant was adopted by Bachu Singh as recited in his Will.
2. The Subordinate Judge has decreed the suit. The defendant, who is now represented by his widows, appeals. Four contentions, two of law and two of fact, have been submitted before this Court. It will be convenient to deal with the matters of fact, in the first place; and, to understand the evidence a right, we have set forth the following table of descent:
Bal|---------------|--------------| |Bhim Udaikar| || --------------|-------------| | | || Deonarain Mathura Bhabeywitnesses for | |plaintiffs. | || -------------|--------------| | || Hriday ParmanandHarla (1835) | || -----------------|------------------| | | || Basti (1816) Basanti Dukha Sumbhu| | | ||Plaintiffs Nos. 1 to 14 Plaintiff No. 15. Hargen (Hargid)|[Dewan (1878) Being witness in 1874.| father of plaintiffs| Nos. 1 to 3]||Haiman|Nehal|Pheku (1790)|-------------|---------------| |Pershad and Gazani (1816)|---------------------------| |Rajkumar Sankardu (1835)| |Uditnarain Pardipnarain| |Bachu (alias Rupnarain) Two daughtersTestator (1874, 1878). And widow (1874).
3. The details in the table are admitted by both parties to a considerable extent. The real issue, on the question of the genealogy of the plaintiffs, is whether Bhabey had a son Parmanand, and whether Parmanand was the ancestor of Basti (Basanti). Certain dates and persons are fixed by the suits and proceedings of the years specified in the table (within brackets). Thus in the year 1790, Pheku, the ancestor of Bachu, was the settlement-holder of the family property. If Bhabey had a son, Parmanand, the latter must have been born about the beginning of the 18th Century. One hundred years later in the year 1816, there was a suit by 'Basti and other against Pershad and Gayani in which the genealogy now relied on by the plaintiffs was set up by Basti and his party in support of their claim to share of the family taluk Narman. That genealogy was not expressly denied by Pershad and Gayani but the suit failed on the plea of adverse possession. The judgment is as follows: Whereas the plaintiffs have set up their claim to their share on the basis of the genealogical tree and the defendants deny their claim. In the course of hearing, the plaintiffs adduced three witnesses to wit, Sri Kishan, Sheodyal Singh, and Chatur Narain. Although the said witnesses have stated that the plaintiffs and the defendants are related to each other as cousins, but from their evidence it has not been proved that the plaintiffs were ever in possession of their share. No witness deposed as to his personal know ledge of the extent of the share of the plaintiff's. From the plaint also it appears that the plaintiffs are very distantly related to the defendants. Such being the case, I do not believe the plaintiff's case. Therefore, it is ordered that the suit be dismissed and struck off from the file and the under-mentioned costs be charged to the plaintiffs.'
4. The litigation of 1816 based on the hypothesis that the parties were gotias (agnatic relation) of the same stock, raises a somewhat strong presumption that the genealogy pro-founded at that early date was correct, for, otherwise, it would have been categorically denied. Parmanand, therefore, was presumably a member of the family of the plaintiffs. It is true that his name is not to be found in the genealogy put forward in the suit of 1834-5 which was instituted by Harlal and his brother against Sankardut and others for a share of the same taluka (Narman). But the share of Parmanand had been lost as a result of the suit of 1816, and there was no necessity to specify the descendants of Bhabey through Parmanand. Harlal's suit was dismissed on appeal: the decision does not effect the present plaintiffs.
5. In the year 1874, the two daughters of Pardip Narain sued Bachu who examined as his witness, one Hargen (Hargid). If the evidence of this witness be admitted and believed, the plaintiff's position is clearly made out. We shall divert to this matter when we come to consider the oral evidence.
6. In 1878, Dewan, the father of the plaintiffs Nos. 1-3, applied for the registration of his name in respect of a share of taluka Narman. His claim was opposed by Bachu whose petition is on the record. Bachu filed with his petition the genealogy of the year 1816 but only as far as Basti (Basanti) who was the plaintiff of that year. This was all that was required in the circumstances. The case related to possession, and the substantial defence of Bachu was that Dewan had 'no possession over any portion of the property from the time of the ancestor of the applicant.' If the documentary evidence we have just examined be supplemented by the statements of the witnesses, it is highly probable that the plaintiff's are the next reversioners to the estate of Bachu and that conclusion is fortified by the view we take as to whether the defendant was adopted as a karta putra by the deceased.
7. Among the witnesses are three of the plaintiffs and some of the descendants of Bhein whose share 6 annas 8 gandas cannot be affected by the present litigation. The evidence has been placed before us. The genealogy and in particular the descent of Basti from Parmanand and Bhabey is deposed to in no uncertain terms. The salient facts of agnatic relationship, residence in the same village, common mourning and common worship have been fully spoken of. No doubt there are discrepancies between the details given by some of the witnesses and the various tables of descent and it may be that some of the persons who communicated information to the defendants derived their knowledge in part from the genealogy of 1816: An admission to that effect was made by one of the plaintiffs before the District Judge in the probate proceedings: but the witnesses must have been aware of the names of the members of their family for the purpose of making the customary offering of cake and water. Among Behari Hindus such knowledge is extremely common if not indispensable. We are unable to accept the destructive criticism of the learned Vakil for the defendant-appellant on this part of the case.
8. A copy of the deposition of Hargen (Hargid) in the suit of 1874 has been admitted subject to objection. On consideration we think it must not weigh with us in the decision of this appeal. Although the witness has been proved aliunde to be a member of the family of Bhabey through Permanand and although the deposition is not a mere memorandum of the substance of the deposition given by the witness, the copy in question was taken from some paper-book of this Court and it was filed after the defendant had closed his case. The evidence on the side of defendants is not satisfactory. Musammat Ram Kishori, the junior widow of Bachu. repudiated the written statement filed on her behalf. The performance of Sradha of Bachu by the defendant even if true does not prove much seeing that he is the nephew of the senior widow The defendant himself made the most damaging admissions in the witness box. He did net satisfactorily account for the delay in making his application under the Probate and Administration Act; his story of being absent on pilgrimage is obviously untrue. The deed of gift Exhibit V is inconsistent with the theory of adoption. The fact that the defendant described himself as the son of his natural father Ramjalum in documents executed before he applied for probate is practically conclusive against his claim to be the kartaputra of the deceased. The defendant was a minor in 1875, and so could not have accepted the status of a karta putra. The witness Ram Lochan supports the genealogy of 1816. The conduct of the defendant who left the estate in the possession of the widow alter the death of Bachu is very insignificant. The Subordinate Judge has examined the e evidence at length and we may shortly say that we think his conclusions are perfectly justified.
9. The question of fact must, therefore, be determined in favour of the plaintiffs, no other person having been shown to be more nearly related to the deceased. They are the next reversioners to the estate of Bachu and the defendant is not his karta pntra. We are aware of the contrary conclusions arrived at in the probate litigation, but it has to be borne in mind that the present investigation has been exhaustive and much light has been cast, on the difficulties involved j by the evidence on the subject of the alleged adoption of a karta putra by Bachu.
10. We next come to the contentions of law, which are these: First, that a suit cannot be maintained for a bare declaration, possibly vain and infructuous, that a person is the reversionary heir of a Hindu, the declaration being such that, in itself, it would, not entitle the plaintiff to any relief on the footing of that declaration; and, secondly, that the judgment of the District Judge affirmed, by the High Court deciding that the plaintiffs are not the next reversioners to the estate of Bachu, is res judicata inasmuch as it was the decision of a Court of competent and exclusive jurisdiction on the same issue as is raised in the present suit.
11. Viewed as an abstract proposition, the first argument of the learned Vakil for the defendant-appellant is perhaps sound, but it is otherwise on the facts of this case except in so far as it leads up to, and supports, the final plea embodied in the contention as to res judicata. We shall consider it in the latter aspect.
12. Section 42 of the Specific Relief Act provides: Any person entitled to any legal character, or to any right as to any properly, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled and the plaintiff need not in such suit ask for any further relief:
Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.
13. Now, the proviso does not stand in the way of the plaintiffs; they cannot obtain any further relief here, for they propose to apply to the District Judge for revocation of the grant of probate under Section 50 of Act V of 1881. The substantial prayer in the plaint has been amended in this Court to place their intention beyond doubt. There is, also, no question that this is a case in which a Court might properly exercise its. discretion in favour of the plaintiffs, because the Will of Bachu is seriously challenged as a forgery involving a false claim of the defendant to be the adopted son of the testator. The plaintiffs have not a mere contingent interest such as was held to be insufficient in the cases cited to us. As reversioners they can apply for revocation of the grant of probate. Their object is to avert a present danger, and to have investigated, while there is yet time, the real character of a transaction which, they assert, never took place, that is, the execution of the Will by Bachu. This object is not to validate any spes succession is personal to the plaintiffs only but personal to the reversion generally, which the Will affects. The plaintiffs, in this view of the matter, do not seek to improve their present position, or to come into any enjoyment of the estate, but to remove what they consider a fatal impediment which destroys all the reversionary interest. They have a present interest, and it has been held by this Court that such an interest suffices to found an application under Section 50 see Bepin Bihari Shaha v. Manoda Dasi 6 C.W.N. 912, (and the cases therein relied on).
14. We think, therefore, that the plaintiffs' suit wouid be maintainable bat for the bar of res judicata.
15. There remains the final argument on this appeal. The Subordinate Judge has held that the suit is not barred by Section 13 of the former Code of Civil Procedure. In our opinion, however, the general principle must be applied. If the matters in issue in the probate proceedings were the same as those in the suit tinder appeal, and if the points were formulated and a decree was passed in the probate case, the parties are now bound to that extent and cannot re-agitate the same questions. The second branch of the contention is that the Probate Court, as it may be designated, cannot be compelled to decide again any issues which it has already decided, even thorugh one of those issues was merely incidental to the determination of the legal character of the defendant and the factum of the Will.
16. The probate proceedings are before us including the judgments and decrees of the District Judge and this Court. The District Judge framed two issues on the 19th March 1903, namely, (1) whether the objectors have any locus standi to oppose the application for probate, and (2) whether the Will propounded is the genuine duly executed Will of Rup Narain Singh alias Bachu Singh deceased. That being so, the question can be considered in the manner explained by the Privy Council in Nwab Akbari Begum Mirza Kurrutulain Bahadur v. Nawab Nuzbat-ud-dowla Abbas Hossein Khan 33 C. 116 : 9 C.W.N. 938 : 1 C.L.J. 594 : 2 A.L.J. 758 : 15 M.L.J. 336 : 7 Bom. L.R. 876 : 32 I.A. 244: 'The rule in England is clear, that when once probate in solemn form has been granted, no one who has been cited, or who has taken part in the proceedings, or who was cognisant of them, can afterwards seek to have it cancelled'. In re Pitamber Girdhar 5 B. 638 at p. 641. The general rule was thus stated by Lord Penzance in Spencer v. Williams L.R. 2 P. 230 : 40 L.J.P. 45 : 24 L.T. 513 : 10 W.R. 703: 'Now, of one thing there is no doubt, and it is a principle which was clearly laid down in Barrs v. Jackson 1 Ph. Ch. R. 582 : 14 L.J. Ch. 433 : 9 Jur. 609. that when a question of fact arises in this Court as to which of two persons is next-of-kin of a deceased, and is determined, and the same question is afterwards raised between the same parties in any other Court, they may be estopped from proceeding in the latter, suit. The decision in Barrs v. Jackson 1 Ph. Ch. R. 582 : 14 L.J. Ch. 433 : 9 Jur. 609, was founded on a true principle, and supported by a sound judgment. If two parties have once, before a Court of competent jurisdiction, litigated any question of fact, and that question has been finally decided, it is not reasonable that either of them, in any other Court, should re-open it'. The principle of mutuality also avails he defendant, for if the District Judge and this Court had held that the plaintiffs were the next reversioners, and if the Will had thereupon been contested, as to the factum of execution and the status of the defendant, the result would have been conclusive, subject, perhaps, to review and not otherwise.
15. The decision in Arunmoyi Bad v. Mohendra Nath Wadadar 20 C. 88, has been relied on for the plaintiffs in support of the proposition that 'the only question which the Court (of probate) is called upon to determine is whether the Will is true or not, and that it is not the province of the Court to determine any question of title with reference to the property covered by the Will'. But it was, also, held that the general principles of res judicata, as enunciated in the English cases, were not affected in other respects. Here, the Will of Bachu has not been construed in order to ascertain any legal character, either of the plaintiffs or of the defendant. The issue decided by the District Judge and on appeal was whether the caveators (the present plaintiffs) had any locus standi, that is, whether they were agnates of the deceased. It was held that they had failed to show an interest in the estate of the testator. The caveators accepted the forum both original and appellate. The case was one of contention (section 83, Act V of 1881), and even when the caveators were defeated on the issue of locus standi, they appealed against the decree of the District Judge, which granted probate, and not merely against the order finding that they were not the next reversioners. The judgment now assailed is a judgment in rem and it cannot be disturbed by a suit involving the same issues.
16. The second branch of the contention is scarcely less weighty. Supposing the plaintiffs were to get a declaratory decree, as prayed, would not the District Judge be precluded from trying the issue whether the Will had been duly executed? He might say: 'This Court has granted probate after a contest. The estate is in the hands of the executor. No reversionary interest subsists. The case does not come within any of the circumstances constituting 'just cause' for revocation as defined in Section 50 of the Probate and Administration Act'. No legal machinery exists to compel such a Court of Probate to accept the decision of another Civil Court on a matter already heard and determined by the former Court. The declaration in favour of the plaintiffs would be infructuous, or if accepted by the District Judge, as a basis of fresh proceedings, the defendant might again revive the question of locus standi and a third contest would ensue.
17. We arrive at this conclusion with some regret, as the plaintiffs have the merits on their side. It seems to us that parties filing caveates in probate proceedings should understand their responsibilities and the logical result of their action.
18. The appeal is allowed. The suit is dismissed with costs here and heretofore. The defendant No. 2 will bear her own costs.