BISHUNATH RAI Vs. SARJU RAI

JUDGEMENT

(1.) This is an objector's appeal from an order granting probate but not annexing to the probate a copy of a compromise entered into between the parties. At first the proceeding was a contested one but the parties filed a compromise under which they admitted the genuineness of the will and the existence of a sound disposing mind of the testator. The compromise proceeded to divide up the estate into two portions and to put the parties into separate possession of them with power to get mutation of names effected through the Revenue Court. The request was that the Court should decide the case in terms of the compromise and should embody the compromise in its decree.

(2.) The learned Judge came to the conclusion that inasmuch as the genuineness of the will and the power of the testator to execute it were admitted and. inasmuch as he was satisfied on the evidence produced by the applicants that the will had been validly executed he ordered that a probate with a copy of the will annexed be granted to the applicant. He did not direct that the compromise should either be incorporated in the probate or be annexed to it in the form of a schedule. The objector comes up in appeal and it is contended on his behalf that the Court below should have disposed of the dispute between the parties in strict accordance with the terms of the compromise.

(3.) In the first place, it is quite clear that as a proceeding in a contested case will result in a judgment in rem the Court cannot act merely upon the consent of. the parties before it so as to shut out an inquiry into the genuineness and due execution of the will itself. The main issue before the Court is the question of the proof of. the valid execution of the will and all other matters are outside that inquiry. The Court has to be satisfied as to this issue before it grants probate and it is wholly immaterial whether the parties desire to compromise their dispute or not.