RALLABANDY VENKATARATNAM Vs. YANAMANDRA SATYAVATI

JUDGEMENT

(1.) This is an appeal against the order of the District Judge of Godavari whereby he dismissed the appellant's petition to revoke a probate under Section 50 Probate and Administration Act. The previous history of the case is set out in the learned District Judge's order. The only facts we need consider are the following an application was made by the widow of one Appa Rao, deceased, in 1908 for letters of Administration to his estate with the will annexed. The will is printed at page 17 of the documents in A. A. O. No. 275 of 1920 and it is to be noted that the only property of the testator on which it could take effect was a sum of insurance money Rs. 1,000. The father of the testator entered a caveat to the proceedings of 1908 but withdrew it apparently in consequence of an agreement (printed at page 5 of the documents in appeal No. 110/115 ) to which this (1st) appellant inter alias was a party. The agreement shortly provided that the widow should take the Rs. 1,000, should adopt the son of the 1 appellant, (authority to her to adopt was given in the will) and withdrew her application for letters of Administration The 1 appellant was a respondent to the application for Letters of Administration though he was not cited The agreement fell through, the father of the testator did not appeal in the proceedings and the widow obtained Letters of Administration. It appears that she subsequently adopted another boy. The present 1 appellant thereupon petitioned for a revocation of the Letters of Administration granted to the widow. This was dismissed both by the District Judge and by the High Court (Ayling and Napier, JJ.,) in A. A. O. No. 132/11 the learned Judges held that no just cause was shown for revoking the Letters of Administration. Several years afterwards two brothers of the 1 appellant in 1916 filed revocation proceedings. Their petition was allowed and the Letters of Administration to the widow were recalled the 1 appellant was along with the widow a respondent to the proceedings. The matter being contentious took the form of a suit (No. 55 of 1917). The 1 appellant was not a party in his own right and applied to be brought on in I. A. No. 609/19. This was dismissed by the District Judge as he had not objected to the grant originally and his subsequent petition for revocation had been dismissed. He was held not to be a proper or necessary party as he had no power in himself to ask for revocation. In the result the will was upheld and Letters of Administration were ordered to be re-issued to the widow. As a matter of fact this was never done as there was nothing left for the Letters of Administration to operate upon. Further the 1 appellant, as representing the widow would be the person or one to the persons to whom the Letters of Administration would be issued. The question is can the 1 appellant be now heard to reagitate the whole matter for his own purposes. It has first to be premised that the 1 appellant is clearly not interested in upsetting the will qua will. His grievance has nothing to do with the disposal of the Rs. 1,000 but with the power of adoption given by the will. He wants to use this means to upset the adoption made by the widow and which was not in accordance with the agreement above referred to. It is perfectly clear that the authority to adopt could have been given to the widow otherwise than by the testator's will. The present application is based on Section 50 Probate and Administration Act and the particular just cause relied on is the 2nd--the fraud alleged being the concealment of the agreement. I am by no means convinced that it was a duty incumbent on any of the parties to bring this agreement to the notice of the Court in 1908-nor am I convinced on the evidence that is before us that the testator's father failed to appeal in the proceedings of 1908 because the agreement was then subsisting. The judgment in No. 132/11 (page 7) shows to my mind that 1 appellant was aware of the proceedings and also that the agreement had by that time fallen through. The learned Judge there found as follows: "The respondent's 4 witness's deposition clearly shows that the petitioner was aware of the proceedings during their pendency and such evidence receives support from the unimpeachable evidence of the other witnesses though the latter cannot fix the dates accurately; the compromise attempted and referred to by these witnesses clearly shows that the petitioner was aware of the proceedings while they were pending. " In Nistariny Debya V/s. Brahmomoyi (1890) ILR 18 C 45 it was held that the mere absence of a special citation in proceedings in which probate of a will is granted is not where the person to whom a citation has not been issued is otherwise aware of the proceedings a just cause for revocation. I therefore hold that the 1 appellant was a party to the proceedings in 1908 and is bound by the decision of the Court. The learned Judge has held that the 1 appellant is debarred from reagitating the matter on account of res judicata. It is contended that it has been so held solely on the ground that 1 appellant was aware of the proceedings which were not strictly a suit. Further it will be noticed that the validity of the will has been upheld by this Court, in A. A. O. No. 275 of 1920 (Phillips, J.. and myself). There this 1st appellant put in a memo. of objections wherein he repeated his allegation that in view of the agreement the Court ought to have made him a necessary party and enabled him to call evidence. He also adopted all the grounds of appeal against the validity of the will filed by the then petitioners (his brothers). It is not disputed that these form his grounds in the present appeal. This memo. of objection was not pressed and was dismissed by us. In my opinion the 1 appellant is barred by the application of the principle of res judicata though the words of Section 11 may not be strictly applicable. The matter has previously been in issue between the same parties and the validity of the will has been fully and finally established and in my opinion it would only be encouraging this protracted litigation to proceed to further lengths to hold the opposite. It is contended that the 1 appellant has up to now not had a chance to present his case. I am unable to agree. He had every chance to attend at the original hearing in 1908. He was heard in 1910 when his application to revoke was dismissed. He did not take steps to displace the order refusing to make him a party to suit No. 5 5/17; but he filed as stated a memorandum of objections to the appeal. The Privy Council has held in Hook v. Administrator General of Bengal (1921) ILR 48 C 499 that the plea of res judicata still remains apart from the limited provisions of the Code and in Sheoprasan Singh V/s. Ramanandam Prasad Singh (1916) ILR 43 C 694 : 31 MLJ 77 their Lordships held that the application of the rules by the Courts in India should be influenced by no technical considerations of form but by matter of substance within the limits allowed by law. The learned District Judge has further dismissed the appellants petition on the ground that the judgment of the Court of Probate substantiating the will is a judgment in rem. So long as this is in force it is conclusive not only upon all the parties who may be before the Court but also upon all other persons whatsoever in all proceedings arising out of the will or claims under or connected therewith Sarodakanto Dass V/s. Gobind Mohand Das (1910) 12 CLJ 91 at 97. It is contended by Mr. Venkatachariar that his conclusive character cannot apply to an attempt to set it aside. He further contended that the argument has no force as the Letters of Administration having been recalled and not re-issued there is in fact no such judgment in existance. In my view this is a fallacy; the letters were recalled, but the validity of the will was finally established in suit No. 55/17 and Letters of Administration were ordered to be re-issued. The will must therefore be treated as having been valid all through and it is this judgment in No. 55/17 which has the force of a judgment in rem. It may be that a judgment in rem proved to have been obtained by fraud can be set aside. In my opinion there is no such evidence here. The validity of the will has been considered over and over again and has been finally established and the appellant is under the circumstances of this case bound by that decision. The appeal fails and must be dismiss-eel with costs throughout. Wallace, J.

(2.) The original petition is in substance, though not in terms, an application to revoke the grant of a probate. The first appellant contends that the order granting probate on 13--3--1909 is not res judicata against him because first, it was not passed after contention and therefore the proceedings are not of the nature of a suit and therefore Section 11 of the C. P. Code does not apply, and secondly that, in any case, that grant was set aside by an order of the Court on the petition of his minor brothers, and that thereby the order of the Court was revoked. As to the first point it is clear law that any order passed after contention in a probate proceeding is res judicata in any subsequent proceeding of any sort against the caveators who contested it, see Nuzhatud Dowla Abbas Hussain V/s. Mirza Kurratuland (1903) ILR 31 C 186, Sheoparsan Singh V/s. Ramanandan Prasad Singh (1916) ILR 43 C. 694 : 31 MLJ 77 and Hook V/s. The Administrator-General of Bengal (1921) ILR 48 499, and it would come within the purview of Section 11 of the Civil Procedure Code. Now, the appellant was aware of the probate proceedings, had an opportunity to contest but did not choose to contest them so that, it was owing to his own neglect that the proceedings did not become contentious. It appears to me that he is barred from re-opening the matter any more and this conclusion is based not so much on Section 11 of the C. P. Code itself but on the general principle of the Probate and Administration Act that the grant of probate by a competent Court is binding on all persons who had an opportunity of putting forward their objection before it was passed unless they can make out a good case under Section 50 for setting it aside. Section 50 lays down that for " just cause " the grant of probate of Letters of Administration may be revoked or annulled. There is no period of limitation for putting forward such a cause, since obviously the cause may only appear long after the grant; but it is an elementary principle that, where the party had an opportunity to put forward a particular just cause and had not chosen to put it forward, he cannot be heard to agitate the same cause later. No Court would, in my opinion, allow a " just cause " already agitated and decided upon before the grant of probate to be again made the subject of an application to revoke that grant, and I see no difference in principle between disallowing such an application on the ground of res judicata and disallowing it on the ground that the party already had a full opportunity of putting forward his just cause and omitted to do so. So that the question before us, as I view it, is whether the 1 appellant had an opportunity before the grant was made of urging the very grounds he now puts forward, or whether he urges any new grounds that have arisen since he had that opportunity which he refused to utilise.

(3.) I find that he urges nothing new. His petition does not arrange clearly his points of attack or state under which clause of Section 50 he appeals; but although he does not ask for the revocation of the order of 13--3--1909, his main points of attack seems to me to be (a) that the will was forged, (b)that there was fraudulent conduct of the widow in reference to an agreement, (c) his ignorance of the probate proceedings, (d) the non-service of summons or citation on him, (e) attacks on the conduct of O.S. No. 55 of 1917 into which the petition of his minor brothers was converted after their I. A. No. 383 of 1916 was allowed, and (f) the plea that the High Court by recalling the grant in C. M. A. No. 305 of 1917 vacated the original order, so. that the whole proceedings are open in this Court. The first four points should have been made grounds of attack before the first grant of probate, for, though no citation was served on him, he was aware of the proceedings. The citation was properly issued and the first appellant had sufficient knowledge of the proceedings--vide High Court's findings in A. A. O. No. 132 of 1911 and in Appeal No. no of 1915--and such knowledge was enough to render it incumbent upon him to put forward then any case he had. As to the attack on the conduct of O.S. No. 55 of 1917, it is an irrelevant matter in this petition, as such conduct would have no retrospective effect on the probate proceedings, which the 1 appellant now seeks to reprobate.