Sm. Usharani Roy v. Sm. Hemlata Roy — 1945 DIGILAW 178 (CAL)

JUDGMENT B.K. Mukherjea, J. - The petitioner in this rule is the defendant in a probate suit now pending before the District Judge at Rajshahi and the rule is directed against an order of the District Judge dated 15th May 1945, by which he directed the striking off of an issue raised in the probate suit. To appreciate the point in controversy between the parties, it would be necessary to state certain facts. 2. The opposite party in this rule, Sm. Hemlata Roy is the widow of Kumar Hemendra Kumar Roy of Digapatia who died on 11th March 1943, leaving behind him a registered will said to have been executed on 8th July 1939. On 11th June 1943, the opposite party, as the sole executrix under the will, presented an application for grant of probate of the same in the Court of the District Judge at Rajshahi. The application was resisted by Himadri Sekhar Roy, the only son of the testator and the husband of the present petitioner and the proceeding being a contested one was registered as probate Case No. 54 of 1943. Himadri Sekhar Roy died since then and the petitioner who is his wife and sole heiress under the Hindu law has been substituted and brought on the record as defendant in the probate suit in place of the deceased. The petitioner adopted the written statement already filed by her deceased husband and also put forward certain additional objections of her own. Among other points the contention raised on her behalf was that the will propounded was not the last will and testament of the testator and it was in fact superseded by a subsequent will which was executed in the year 1942. On the pleadings of the parties, issues were framed by the Court on 13th September 1944 and issue 2 stands as follows: Is the will propounded by the petitioner the last will and testament of the testator or was the will revoked by the execution of the second will in 1942? 3. It appears that on 21st November 1944, the propounder administered several interrogatories to the petitioner with the object of eliciting information as regards the time and place of execution of the subsequent will set up by the latter and the names of the scribe and attesting witnesses of the same. 3. It appears that on 21st November 1944, the propounder administered several interrogatories to the petitioner with the object of eliciting information as regards the time and place of execution of the subsequent will set up by the latter and the names of the scribe and attesting witnesses of the same. In answer to these interrogatories, the petitioner stated that she herself had no personal knowledge of the will but had heard from her husband that it was executed at Rajshahi probably in the first Part of 1942 and that the document was in possession of the propounder or her brother. Her husband had also mentioned to her the names of certain persons who were connected with the execution of the will but she did not know which of them, if any, were the scribe or the attesting witnesses. Thereafter, on 3rd May 1945, the propounder applied to the District Judge for striking out issue 2 framed in the suit as mentioned above on the ground that the caveatrix was not entitled to raise this issue in this proceeding without propounding the subsequent will set up by her and that the subsequent will should be proved after issue of necessary citation as required by law. The learned District Judge by his order dated 15th May 1945 granted this prayer of the propounder and directed the expunging of issue 2 framed in the suit. It is against this judgment that the present rule has been obtained. 4. In making the order complained of the learned District Judge followed a rule of procedure which was indicated and approved of by Rangnekar J. in 53 Bom. 829 Venidas Nemchand v. Bai Champavati ('30) 17 A. I. R. 1930 Bom. 29 : 53 Bom. 829 : 122 I. C. 126. The facts of the Bombay case were similar to those of the present one. There, an application was presented by the plaintiff for probate of the last will and testament of one Vanmali Virji. According to the plaintiff, this last will was executed on 14th April 1925. A caveat was filed in the proceeding by the widow of the testator and she contended inter alia that the last will left by the deceased was one dated 23rd December 1926 and that the will propounded by the plaintiff was superseded by the latter will set up by her. A caveat was filed in the proceeding by the widow of the testator and she contended inter alia that the last will left by the deceased was one dated 23rd December 1926 and that the will propounded by the plaintiff was superseded by the latter will set up by her. Of the issues framed in the suit, issues 2 and 3 stood as follows: (2) Whether the writing dated 23rd December 1926, Ex. 1 to the defendant's affidavit is the last genuine will of the deceased? (3) Whether probate should be granted of both the writings or either of them; and if so, of which? On objection being taken by the plaintiff to the framing of the above issues, it was held by Rangnekar J. that where in a petition for probate the caveator sets up another will of the testator, it is obligatory on the latter to file a separate petition to propound the will set up by him. On such petition being filed there would be really two separate proceedings for obtaining grant in respect of two different wills alleged to have been left by the same testator and the parties interested in opposing the grant would have to file respective caveats in each case. The two suits could then be heard together or consolidated. According to the learned Judge, this procedure was quite in conformity with the provisions of the Succession Act, read with the Rules of the Original Side of the Bombay High Court and was supported by a number of precedents of that Court. The result of the decision was that issues Nos. 2 and 3 as framed in the suit were struck off and liberty was given to the caveatrix to apply for probate of the will set up by her. The question for our consideration is as to whether the procedure indicated by Rangnekar J., is the correct procedure and should be followed in the case before us. The point so far as this Court is concerned is not covered by any previous authority and requires careful examination. 5. Now in a probate suit the point for consideration undoubtedly is whether the document propounded by the plaintiff is the last will and testament of a free and capable testator. The point so far as this Court is concerned is not covered by any previous authority and requires careful examination. 5. Now in a probate suit the point for consideration undoubtedly is whether the document propounded by the plaintiff is the last will and testament of a free and capable testator. The caveator in opposing the grant may not only plead want of execution and attestation or absence of capacity and free will in the testator but can also aver that the document propounded by the plaintiff even if it was otherwise a valid will had been revoked by a subsequent will executed by the testator. According to the procedure that is followed in English Courts whenever the defendant in a probate proceeding sets up a subsequent will which, he avers, has superseded the earlier will, the subsequent will has got to be propounded by way of counterclaim. The substance of the case should then state: "The substance of the defence is contained in the counter claim." (Vide, Tristram and Coote's Probate Practice 18th, Edn. 476. Mortimar on Probate Law and Practice, 2nd End. 601). A counter claim is to be headed separately so as to distinguish it from a defence and under the rules of the Supreme Court a counter claim is governed by the same rules of pleading as a statement of claim and the reply to it by the same rules as defence. Under S. 268, Succession Act, the proceedings in a probate suit are to be regulated, so far as the circumstances of the case permit, by the Civil Procedure Code. Section 295 further lays down that in any case before the District Judge in which there is contention, the proceedings shall take, as nearly as may be, the form of a regular suit according to the provisions of the Code of Civil Procedure, 1908, in which the petitioner for probate or letters of administration as the case may be, shall be the plaintiff and the person who has appeared to oppose the grant shall be the defendant. It is quite true as Rangnekar J., points out that the CPC by which the proceedings in the probate suit are to be governed does not recognise any such thing as a counter claim and consequently if the defendant in the probate suit has got to propound the latter will set up by him, the only way open to him is to file a separate petition praying for probate or letters of administration in respect to the same and the two proceedings might then be amalgamated and heard together. The question, however, still arises as to whether it is at all obligatory upon the defendant to propound the subsequent will set up by him? Under S. 213, Succession Act, it is only when a party wants to assert his right as an executor or a legatee under a will that he has got to produce a probate or letters of administration in respect to the same granted by a competent Court. The defendant in a probate suit may not claim anything under the subsequent will set up by him. Is it not enough, therefore, for him to say that as the earlier will was revoked by a subsequent one, the plaintiff's application for probate must fail, no matter whether a grant in respect of the subsequent will can be made in favour of the defendant or anybody else? It must be held that there is no express provision in the Succession Act, which imposes upon the caveator an obligation to propound a subsequent will which he might set up. 6. Dr. Roy appearing on behalf of the opposite party argues that although no definite rule of procedure has been laid down by the Legislature as being directly applicable to a case like this, the Court has got to formulate a procedure which is consistent with the provisions of the Succession Act and the Code of Civil Procedure; and his argument is that it would not be possible to give effect to the material provisions of either of these enactments unless the procedure indicated by Rangnekar J., is adopted. We will have to see whether this contention is sound. Mr. Ganguly appearing for the caveatrix concedes that it is not enough for his client to prove that a subsequent will exists which contains a clause revoking the earlier will propounded by the plaintiff. We will have to see whether this contention is sound. Mr. Ganguly appearing for the caveatrix concedes that it is not enough for his client to prove that a subsequent will exists which contains a clause revoking the earlier will propounded by the plaintiff. The will set up by her has got to be proved by the valid testamentary document executed by a capable testator and duly attested and it would be open to the plaintiff to allege and prove that it was obtained by fraud or undue influence or that any other circumstance existed which would make it inoperative as a will. There seems to be some substance in Dr. Roy's contention that unless the plaintiff is allowed to plead these facts specifically and issues are raised on these pleadings he cannot possibly be entitled to adduce evidence on these points. As there is no provision in the CPC under which the plaintiff can aver these facts by way of reply to the written statement filed by the defendant, these matters can strictly speaking be agitated only by way of defence to a separate proceeding that the defendant might be obliged to start in respect of the latter will set up by her. Quite apart from this it seems to us that Rangnekar J., is right when he holds that certain anomalous consequences of a rather serious nature would ensue if the defendant is allowed to defeat the plaintiff's claim for probate on an adjudication of the will set up by him without propounding and proving it in the manner contemplated by the Succession Act. Suppose that the Court holds that the subsequent will set up by the defendant is a valid testamentary document and consequently the plaintiff is not entitled to probate of the will propounded by him. As this adjudication is not made on a proper application for probate filed by the defendant after issue of citations to all interested persons as required by low it would not be a final adjudication at all. The same matter can be re-agitated in any future probate proceeding started in connexion with the subsequent will and the result would certainty be anomalous if the Court in that proceeding pronounces against the validity of this will. 7. The same matter can be re-agitated in any future probate proceeding started in connexion with the subsequent will and the result would certainty be anomalous if the Court in that proceeding pronounces against the validity of this will. 7. It further appears to us that when a second will purporting to be executed by the same testator is set up by a caveator there is a duty cast upon the probate Court to see, quite irrespective of what the parties might choose to allege, how far the latter will has superseded the earlier one and whether probate has to be granted of one of the two wills to the exclusion of the other or both of them together. This duty the probate Court cannot discharge unless the second will is proved in the proper way after issuing of necessary citations. The fact that the caveator may not be interested in obtaining a probate of the second will is, in our opinion, really immaterial. A will may be revoked in various ways as laid down in S. 70, Succession Act. If the caveator relies upon a subsequent instrument of revocation executed by the testator no difficulty arises and he can prove execution and attestation of the document in the ordinary way. Where, however, the will set up by the propounder is said to have been revoked by a subsequent will, the situation becomes entirely different. The latter will cannot be looked upon merely as an instrument of revoking the earlier one and nothing else. To amount to a will it must be the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death. As we have said above, if the probate Court is apprised of the existence of more than one testamentary document in respect to a dead man's property it is its clear duty to decide as to which of the documents, if any, should be admitted to probate and whether or not probate should be granted of all of them together. 8. It is argued on behalf of the petitioner that it may be that the caveator is neither the executor nor a universal or a residuary legatee under the will set up by him. 8. It is argued on behalf of the petitioner that it may be that the caveator is neither the executor nor a universal or a residuary legatee under the will set up by him. In such cases it cannot be proper to compel him to propound the will and in fact he might not have the requisite legal authority to do so. Of course, the right to apply for probate belongs only to the executor. If the caveator is not the executor under the later will, a citation would be necessary as is provided for by S. 229, Succession Act, calling upon the executor to accept or renounce his executorship and if the executor renounces or fails to accept the executorship within the time limited for acceptance or refusal thereof, the will may be proved and letters of administration with a copy of the will annexed may be granted to the person who would he entitled to administration in cases of intestacy. (Section 231, Succession Act.) The caveator must ex hypothesi be a person entitled to administration in cases of intestacy; otherwise he would have no locus standi to come and contest the probate proceeding. Consequently, there is no bar to his getting letters of administration with a copy of the will annexed as laid down in S. 231, Succession Act. If on the other hand, the executor chooses to apply for probate the proceeding may be commenced at his instance and the two proceedings might be consolidated and heard together. 9. It has been argued by Mr. Ganguly that the caveator's case might be that the subsequent will which revoked the earlier one was itself revoked and he might rely upon the presumption that the will was destroyed by the deceased animo revocandi by reason of the fact that the will was last known to be in possession of the deceased and was not found at his death. We do not think that in such cases it is at all necessary for the caveator to propound the second will which itself being revoked has got no existence in law. In such cases it is enough for the caveator to prove that there was a will subsequent to the one propounded by the plaintiff and revoking the same. We do not think that in such cases it is at all necessary for the caveator to propound the second will which itself being revoked has got no existence in law. In such cases it is enough for the caveator to prove that there was a will subsequent to the one propounded by the plaintiff and revoking the same. There is no-question here of propounding a will, for there is no will at all declaring the intention of the testator regarding the distribution of his property after his death. The revoked second will can only take effect as an instrument of revocation and the fact that it contained a clause revoking the earlier will could be proved by secondary evidence: see in this connexion (1858) 8 El. & Bl. 876 : 120 E. R. 327 William Brown v. Amelia Brown (1858) 8 El. & Bl. 876 : 27 L. J. Q. B. 173 : 120 E. R. 327 and (1928) 138 L. T. 526 Barkwell v. Barkwell (1928) 1928 Pro. 91 : 97 L.J.P. 53 : 138 L. T. 526. 10. On the whole, it seems to us that the procedure indicated by Rangnekar J. is a convenient one and has the merit of avoiding future uncertainties and conflict of decision with regard to one and the same testamentary instrument. There may be exceptional circumstances where this procedure cannot be followed, e. g., when the later will set up by the caveator is alleged to have been revoked. But save and except such extraordinary circumstances, we do not think that there is any difficulty in adopting this procedure. In the case before us, it appears to us clear from the written statement filed or adopted by the petitioner that her husband was one of the executors appointed under the alleged second will and he was also the sole residuary legatee under it. It is not the case of the caveatrix that the subsequent will was in any way revoked by the testator. On the other hand, in reply to the interrogatories served upon her by the propounder she expressly stated that after the death of the testator the will was last seen with the propounder herself or her brother who have been secreting it since then. On the other hand, in reply to the interrogatories served upon her by the propounder she expressly stated that after the death of the testator the will was last seen with the propounder herself or her brother who have been secreting it since then. Both as a residuary legatee as well as a person interested in the administration in case of intestacy the caveatrix is certainly entitled to apply for letters of administration with a copy of the will annexed in case the executor, if any, is unwilling to apply for probate. On these facts, it seems to us that no objection can be taken to the procedure adopted by the learned District Judge. The result is that we discharge the rule but make no order as to costs. Sharpe, J. 11. I agree.