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2001 DIGILAW 527 (CAL)

VICTOR MEHRA v. GLORIA MEHRA WALKER

2001-08-21

ASOK KUMAR GANGULY, PRANAB KUMAR CHATTOPADHYAY

body2001
A. K. GANGULY, J. ( 1 ) BOTH the appeals were assigned before this bench. ( 2 ) WE heard counsel for both the sides on the preliminary point about the maintainability of the appeals since Mr. Dutta the learned senior counsel for the respondent raised the question of maintainabilty. Mr. Chatterjee, the learned senior counsel for the appellant tried to answer those objections on maintainability. Both the learned counsel cited quite a few decisions. We hold that both the appeals are not maintainable. ( 3 ) BUT since detailed arguments were advanced before us we feel that the Court should deal with them and we propose to do so in this judgment. ( 4 ) A few facts may be noted. One Mrs. Josephine Diewty Mehara, a Christian lady died on 28. 03. 1998 leaving a will dated 15. 01. 1998, registered on 23. 03. 1998. ( 5 ) IN respect of the said will an application for probate was filed along with an affidavit of assets by the first and third respondent. In respect to the said probate proceedings special citation was issued and the appellant was served with the said citation. Thereafter, the appellant filed a caveat in the testamentary and intestate jurisdiction of this Court and through his advocate requested the advocate of the first and third respondent for a copy of the application for grant of probate and also a copy of the Will. The appellant duly received those documents. ( 6 ) IT is not in dispute that despite two extensions of time the appellant did not file any affidavit in support of the caveat as such the matter was treated as a non-contentions cause and by an order dated 17. 05. 1999, the Hon'ble Mr. Justice Sujit Kumar Sinha discharged the caveat filed by the appellant by treating the application for probate as a non-contentions cause and granted the probate and thus disposed of the application for the grant of probate. It may be noted that the said order of grant of probate by this Hon'ble Court was not brought about by any compromise between the parties. ( 7 ) THE case of the appellant is that he came to know for the first time on 16. 09. 1999 of the said order passed by the Hon'ble Mr. Justice Sujit Kumar Sinha dated 17. 05. 1999. ( 7 ) THE case of the appellant is that he came to know for the first time on 16. 09. 1999 of the said order passed by the Hon'ble Mr. Justice Sujit Kumar Sinha dated 17. 05. 1999. Immediately his advocate made a prayer before the Registrar in Insolvency on 17. 09. 1999 for postponing the drawning up of the order to enable him to file an application before the Hon'ble Mr. Justice Sujit Kumar Sinha for recalling the order dated 17. 05. 1999. ( 8 ) THEREAFTER, on 21. 09. 1999 the appellant filed an application for recalling of the order of 17. 05. 1999 passed by the Hon'ble Justice Sujit Kumar Sinha. On the said application an ad interim order of status quo was issued by the Hon'ble Justice Sujit Kumar Sinha on 21. 09. 1999. Thereafter, the said application came up for hearing before the Hon'ble Justice Ronojit Kumar Mitra on 17. 05. 2000. ( 9 ) UPON a contested hearing, the Hon'ble Justice Ronojit Kumar Mitra passed an order dated 17. 04. 2000 by dismissing the recalling application with costs. While doing so, the learned Judge made the following observations: "the petitioner (the appellant herein) clearly chose not to make any enquiry or take any step in respect to its caveat or the probate proceedings. No reason had been ascribed in the petition as to why the affidavit in support of the caveat had not been filed, in spite of the Court allowing extension of time in that respect and the fact that the petitioner had been reminded by the advocate on record, for one of the legatees in no uncertain terms that the petitioners had not filed his affidavit, till that date. " ( 10 ) HIS Lordship also made the following observations:"the allegations contained in the petition were mere assertions made frivolously and without any respect to the last wishes of the testatrix. The petition was an after thought containing incorrect and baseless allegations. The order dated May 17, 1999 had been settled in the presence of the advocate for the petitioner (the appellant herein) and there was no allegation that the advocate did not have the instructions from the petitioner (the appellant herein) to attend and approve the settlement. For those reasons this application is dismissed. The order dated May 17, 1999 had been settled in the presence of the advocate for the petitioner (the appellant herein) and there was no allegation that the advocate did not have the instructions from the petitioner (the appellant herein) to attend and approve the settlement. For those reasons this application is dismissed. The petitioner shall pay costs of this application assesed at 300 GM to each of the two legatees. " ( 11 ) AGAINST the said order passed by Hon'ble Mr. Justice Ronojit Kumar Mitra, an appeal was filed before this Hon'ble Court. An appeal was also filed against the order of Justice Sujit Kumar Sinha dated 17. 05. 1999 by which probate was granted. ( 12 ) ON 15. 05. 2000 the appeal, filed against the order passed by Hon'ble Mr. Justice Mitra, came up for hearing. When the said appeal, came up for hearing, the learned counsel for the respondent Mr. Dutta raised the maintainability of the said appeal on the basis of the decision reported in AIR 1982 SC 1397 . The learned counsel for the appellant took time to consider the said objection and the matter again appeared before the Hon'ble Division Bench of this Court and the learned Advocate for the appellant, upon instructions, withdrew the said appeal on 17. 05. 2000. The other appeal filed against the order of the Hon'ble Mr. Justice Sujit Kumar Sinha granting probate was also dismissed for non-prosecution on the instruction of the appellant. ( 13 ) NOW presently these two appeals have been filed againt those two orders namely order dated 17. 05. 1999 passed by Hon'ble Mr. Justice Sujit Kumar Sinha being Appeal No. APOT 1 of 2001 and also against the order dated 17. 04. 2001 passed by Hon'ble Mr. Justice Ronojit Kumar Mitra being Appeal No. APOT 204 of 2001. ( 14 ) THE learned counsel for the respondent obviously raises the preliminary objection to the extent that the present appeals are not maintainable in view of the fact that previous appeal against the very same order was filed and was previously withdrawn by the appellant without any leave to file afresh on the same cause of action. So it has been urged that both the present appeals are not maintainable in view of the provision of Civil Procedure Code. So it has been urged that both the present appeals are not maintainable in view of the provision of Civil Procedure Code. In other words, it has been urged that since leave has not been granted, the provisions of Order 23 Rule 3 of the Civil Procedure Code are applicable also in the case of appeals in view of section 107 of Civil Procedure Code and the instant appeals are not maintainable. ( 15 ) IN answer to the said submission, the learned counsel for the appellant has cited various judgments and contended that Order 23 Rule 3 is not applicable in the case of probate proceedings. ( 16 ) IN support of this contention, the learned counsel has first relied on the decision in the case of Indrajit Singhji Vijay Singhji v. Rajendra Singhji, reported in AIR 1956 Bombay page 45. In the said case of Indrajit Singhji (supra) the facts are that the appellant filed a petition for letters of administration with the will annexed. Citations were served amongst others upon the respondent. The respondent (ex-ruler of former Indian State) filed a caveat and filed an affidavit in support of that caveat and under the Rules of the Bombay High Court (R. 692), the petition was converted into a suit and a summons in the suit were served upon the respondent. When the suit came up for hearing, the respondent raised a contention that the suit was not maintainable in the absence of the consent of the Central Government by reason of the provisions of section 87-B of the Civil Procedure Code. ( 17 ) IN the background of those facts it was held that the petition is maintainable without the consent of the Central Government in view of the fact that the immunity which the ruler of a former Indian State enjoyed under section 86 (1) of the Code was still enjoyed by a ruler of the former Indian State by virtue of section 87-B of the Code. The Division Bench of Bombay High Court also considered the effect of section 141 of the Code, as it existed prior to its amendment in 1976. The said unamended section 141 is as follows:"the procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of Civil jurisdiction. The said unamended section 141 is as follows:"the procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of Civil jurisdiction. " ( 18 ) UPON construing section 141 of the Code the Division Bench in Indrajit Singhji (supra) held that in the case of probate proceedings the question of substantive rights and the question of imposing disabilities can only be dealt with under the Succession Act which deals with those proceedings. But when those proceedings come to a Court of law, the Court has to consider what procedure can apply to such proceedings and section 141 lays down that the procedure, which should be applied, is the same that the Court would apply if it was trying a suit. Therefore, the aforesaid principles which have been laid down in para 6 in Indrajit Singhji (supra) do not support the contention of the appellant. Here the controversy with which this Bench is concerned is what procedure should be followed when matters have come before Court at the appellate stage against order passed not on compromise but on contest. So once matters are before Court in a contested form, the procedural part of the Code will apply. ( 19 ) THIS is also made clear by section 268 of the Succession Act. In fact section 268 does nothing more than voice the principles of section 141 of the Code by attracting the procedural provisions of the Code to probate proceedings. ( 20 ) THE next decision cited by the learned counsel for the Appellant is in the case of Jugeshwar Nath Sahai and Another v. Jagatdhari Prosad and Others reported in AIR 1917 Patna 41 (2 ). The learned counsel cited the said judgment for the purpose of canvassing before us that the principle of Order 23 Rule 1 of the CPC does not apply to an application for probate. This Court has considered the said Patna judgment where the learned Judges made it clear that an application for probate cannot be disposed of by compromise. The learned Judges held that the law imposes on the Court the duty of determining whether the will is genuine or not. This Court has considered the said Patna judgment where the learned Judges made it clear that an application for probate cannot be disposed of by compromise. The learned Judges held that the law imposes on the Court the duty of determining whether the will is genuine or not. Therefore, the Court held that in the facts of that case the Court acted improperly by allowing executors to withdraw the application for probate merely by reason of compromise. ( 21 ) IN so far as the application of Order 23 Rule 1 of the CPC is concerned, the learned Judges held whether the said provision will apply to a probate proceeding or not has to be determined by reference to section 55 of the Probate and Administration Act, 1881. section 55 of the Probate and Administration Act, 1881 is similar to section 268 of the Indian Succession Act and section 238 of the Indian Succession Act, 1865. Therefore, there is no hard and fast rule laid down in the said Patna High Court judgment as to the applicability or otherwise of the provisions of Order 23 Rule 1 of Civil Procedure Code to probate proceedings. While referring to the provisions of Order 23 Rule 1 of the CPC, the learned Judges held that duties of the applicant for probate is to obtain the opinion of the Court upon the genuineness or otherwise of the will. In the instant case, the aforesaid propositions have no application. Here the probate on the Will was not granted on compromise nor did anyone withdraw the application for grant of probate. The application for grant of probate was filed and the appellant was served with citation. Pursuant thereto the appellant filed his caveat but thereafter, despite opportunities, did not file his affidavit before the learned Judge who granted the probate. There is no compromise on any body's part. There may be default on the part of the appellant. But it is nobody's case that the said default is even induced by compromise or even the chance of a compromise. That there was default on the appellant's part is established in the order of Justice Ronojit Mitra. As such the learned Judge in view of such admitted default on the part of the appellant rightly treated the application for grant of probate as a non contentious cause. That there was default on the appellant's part is established in the order of Justice Ronojit Mitra. As such the learned Judge in view of such admitted default on the part of the appellant rightly treated the application for grant of probate as a non contentious cause. ( 22 ) THE next judgment which was cited by the learned counsel was in the case of Sakuntala Dasi v. Kusum Kumari Sarkar, reported in AIR 1970 Orissa 103. In that judgment also the learned Judge after noting the decision of the Patna High Court in the case of Jugeshwar Nath Sahai (supra) held in para 15 that relating to procedure on a probate application the provisions contained in the CPC have to be applied. Since the forum where these proceedings are to be taken is admittedly the Civil Court, and the subject matter is admittedly a civil dispute but as no detailed procedure is prescribed in the Indian Succession Act, it is clear that the CPC would be applicable and the Court, which in seisin over the matter relating to a will should have all the powers of a Court under the Code of Civil Procedure. [see para 15]. These observations do not at all help the case of the appellant. ( 23 ) THE learned counsel also relied on the judgment in the case of Jamuna Dasya v. Kailash Chandra Chowdhury, reported in 49 CWN page 636 for the purpose of contending that Order 23 Rule 1, CPC is not applicable to probate proceedings. The learned Judges held that the provisions of the Code are to be followed in contentious probate proceedings so far as that may be applicable. In the facts of that case, the learned Judges held that the second application for probate was maintainable in view of the fact that the first application was not proceeded with. In the instant case, the factual position as pointed out above is totally different. Here the application for probate filed by the first and third respondent was entertained and an order was passed not on compromise but after it was heard by the competent Court by properly exercising its jurisdiction. In the instant case, the factual position as pointed out above is totally different. Here the application for probate filed by the first and third respondent was entertained and an order was passed not on compromise but after it was heard by the competent Court by properly exercising its jurisdiction. ( 24 ) RELIANCE was also placed by the learned Judge on an old Division Bench judgment of the Calcutta High Court in the case of Saroda Kanta Dass v. Gobindo Mohan Dass reported in 12 Calcutta Law Journal, 91 (1910 ). In the said judgment the learned Judges held that when an order granting probate was revoked by the Court of first instance on the ground that the Will is forged one, the parties cannot, by bringing the matter on appeal and then by a compromise, obtain a reversal of the decision and the obtain the probate without any adjudication. The learned Judges held that such a compromise could not be regarded as lawful within the meaning of Order 23 Rule 3 of the Code of Civil Procedure. The learned Judges further held that when a Probate Court of competent jurisdiction grants probate to a Will or rejects it, the proceedings assume the character of a proceeding in rem. If the probate is granted, such a proceeding is valid and conclusive on the due execution and validity of the Will not only between the parties who are before the Court but also upon all other persons and in all proceedings arising out of the Will or claims made thereunder or in connection therewith. The learned counsel very much relied on the observation of Justice Sir Ashutosh Mookherjee that a probate proceeding assumes the character of a proceeding in rem so long as the order granting probate remains in force. ( 25 ) NOBODY can doubt those weighty observations of the learned Judge. But they have no application to the facts of the present case. ( 26 ) IN the instant case, there is already a proper order passed by the learned Judge granting probate and the said order is not as already noted, passed on compromise. ( 25 ) NOBODY can doubt those weighty observations of the learned Judge. But they have no application to the facts of the present case. ( 26 ) IN the instant case, there is already a proper order passed by the learned Judge granting probate and the said order is not as already noted, passed on compromise. After the grant of probate, there was an application by the appellant for recalling the said order for grant of probate and that was disposed of on the basis of a proper contest and there was no compromise at any stage between the parties. The question arose whether at the stage of appeal against both the orders, namely the order granting probate and the order rejecting the application for recalling the grant, the appellant can, after withdrawing those appeals, again file fresh appeals against those very orders. It may be noted that the order of non-prosecution of appeals was not passed on the basis of compromise either, but those orders were obtained by the appellant's counsel unilaterally and on instruction. In such a situation on the procedural aspect, the principles of Order 23 and section 107 of the CPC must apply. ( 27 ) IN the instant case, this Court holds that once the appeals filed by the appellant, against both the orders pointed out above, have been unconditionally withdrawn by him on his own and not on the basis of compromise, the appellant cannot again file appeal against those orders just because the appeals arise out of probate proceedings. ( 28 ) IN view of the provisions of section 107 of the Code, the provisions relating Order 23 Rule 1 and 3 of the Code also apply to appeals. [kindly see the decision of the Supreme Court in the case of Bijoyananda v. Satrugna Sahu, reported in AIR 1963 SC 1566 at 1571 (para 7) and the judgment of Allahabad High Court in Kanhya Lal v. Pratap Chand, reported in 29 Allahabad Law Journal 232]. ( 29 ) IN our view the learned counsel for the respondent rightly placed reliance on two judgments of the Division Bench of this Hon'ble High Court, namely the case of Smt. Anima Dutta v. Sm. Bhanumati Dutta and Anr, reported in 1984 (1) CHN, page 182. ( 29 ) IN our view the learned counsel for the respondent rightly placed reliance on two judgments of the Division Bench of this Hon'ble High Court, namely the case of Smt. Anima Dutta v. Sm. Bhanumati Dutta and Anr, reported in 1984 (1) CHN, page 182. In that case it was held by the learned Judges that in view of the clear provisions of section 268 and 295 of the Indian Succession Act and section 141 of the Civil Procedure Code, the Court has to follow the procedure laid down in the Civil Procedure Code for the purpose of granting probate. The Court further held that substantive rights are governed by Indian Succession Act but the procedure is controlled by the Civil Procedure Code and the Court further held that there is no question of conflict between the provisions of section 263 of the Indian Succession Act and the provisions of Civil Procedure Code. similar view has also been expressed by another Division Bench judgment of the Hon'ble High Court in the case of Bimala Kanta Sengupta v. Sarojini Koner, reported in AIR 1985 Calcutta 275. There also the learned Judges held that the provisions of Order 9 Rule 9 of Civil Procedure Code are applicable to probate proceedings in view of section 141 of Civil Procedure Code and section 268 and section 295 of Indian Succession Act. This Court is in respectful agreement with the aforesaid view which has been expressed by the learned Judges of the Division Bench. ( 30 ) IN that view of the matter this Court is of the opinion that the present appeals, which have been filed by the appellant after a conscious withdrawal of appeals against the very same orders, are not maintainable. As such both the appeals are dismissed as not maintainable and with costs, assessed at 300 Gold Mohurs, in respect of each of the appeal. P. K. Chattopadhyay, J.-I agree. Appeal dismissed.