The next question is about the maintainability of an application for review at the instance of a person who was not party to the appeal. The decision relied upon by Mr. Basu opines that a person aggrieved by an order can only file an application for review and if he is not a party to the proceedings, he cannot be aggrieved. In our view, the principle laid down in that decision cannot have any application to testamentary jurisdiction where the final decision passed is a judgment in rem and is binding against the whole world unlike the ordinary cases where the judgment is only binding upon the parties or their representatives. The Probate Court is vested with power under Section263 to revoke a probate even suo motu if it appears that there is a just cause for revocation and the Court's attention is drawn to such fact by even a third party. Therefore, simply because the present applicants were not parties to the appeal, that fact cannot stand in their way in applying for review when they are undisputedly heirs and legal representatives of the deceased testator in case of intestate succession having coveatable interest in the probate proceedings.
IN THE HIGH COURT OF CALCUTTA
R.V.W. 2116 of 2005 in F.A. No. 311 of 1988
Decided On: 21.04.2006
Hon'ble Judges/Coram:B. Bhattacharya and P.N. Sinha, JJ.
Citation: AIR 2006 Cal 200
1. This is an application for review of a judgment and decree passed by a Division Bench of this Court by which an appeal preferred against the revocation of grant of probate has been disposed of in terms of the compromise between the parties. Mr. Roy, the learned Advocate appearing on behalf of the applicant, at the very outset, submits before us that there is an error apparent on the face of the decree sought to be reviewed herein, inasmuch as, an Appellate Court dealing with an appeal against revocation of the grant of probate cannot dispose of such an appeal and set aside the order of revocation on the basis of the compromise effected by some of the natural heirs of the testator. Mr. Roy submits that the learned trial Judge having revoked the grant of probate on sufficient cause and an appeal having been preferred against such order of revocation, the Appellate Court could set aside such order only on being satisfied that the order of revocation was unjustified. Mr. Roy draws attention of this Court to the fact that some of the heirs of the deceased testator made a compromise during the pendency of the appeal thereby deciding to divide the properties among themselves and on the basis of such compromise, the Division Bench disposed of the appeal after setting aside the order of revocation without entering into the merit of the appeal and the said agreement formed part of the decree. Mr. Roy further submits that once the Division Bench set aside the order of revocation, the original probate revived and even in such a case, there was no valid reason for passing the order in terms of compromise effected among some of the natural heirs of the testator. Mr. Roy further submits that his clients being admittedly heirs of deceased testator cannot be bound by the compromise arrived at among some of the heirs of the deceased. He, therefore, prays for review of the order.
2. Mr. Basu, the learned Advocate who appeared on behalf of the appellant before the Division Bench vehemently opposed the aforesaid contention of Mr. Roy and contended that according to the present trend in the field of jurisprudence, there is no bar in effecting compromise even in respect of probate proceedings. Mr. Basu contends that the present review application is not maintainable as the applicants were not parties to the appeal preferred against the order of revocation and as such, they cannot be said to be "aggrieved" by the order sought to be reviewed. In support of the question raised by him as to whether an application for review is maintainable at the instance of the persons who are not parties to the appeal in which the order sought to be reviewed is passed, Mr. Basu relies upon a Division Bench decision of the Delhi High Court in the case of Bharat Singh v. Firm Sheo Pershad Giani Ram, reported in MANU/DE/0071/1977 : AIR 1978 Delhi 122. Mr. Basu, thus, prays for dismissal of the present application for review.
3. Before we proceed to consider the questions involved in this application for review, it will be appropriate to quote the entire order passed by the Division Bench:
The compromise as tendered in the petition signed by all the parties at present alive and their Advocates is accepted on record and such compromise be recorded in this proceeding.
It appears that the Will was probated in 1967 but a revocation was obtained in 1986.
The appeal before us is from the order of revocation.
We are of the opinion that in probate matters, it is legal for the parties to adjust the Court proceeding amongst themselves, so that probate issues; however, such adjustment must not in any manner shock the conscience of the Court or leave any doubt in the Court's mind about the genuineness of the Will which is being probated by it.
Similar principles apply in the matter of adjustment of revocation.
We are satisfied that the Will having been probated nearly 33 years ago, it will not serve any useful purpose for the parties to have a long drawn battle over the revocation matter, which will result merely in an attempt to prove the Will once again.
It is on record that the judicial conscience of the lower Court was once satisfied about the grant and that is quite enough to lend sufficient legality to this compromise.
The appeal is therefore allowed and the revocation order is set aside. However, it is clarified that the probate as per the initial grant will issue with a copy of the compromise annexed and in the records of the Court the compromise shall be similarly preserved along with the original Will itself.
The ladies who have married and changed their surnames from Mondal to Naskar will be permitted to file a separate affidavit showing their change of names and such affidavit shall be treated as part of the compromise itself. The affidavit might be filed in this Appeal within a period of four months from the date hereof. As soon as the affidavits are filed, papers as might be necessary will be transmitted to the Court below for issue of grant.
It appears that the revocation was obtained in the Court below not by way of an application but by way of a regular suit. Thus, the order in the Appeal will be treated as an appellate decree passed by us and will be drawn up accordingly.
4. After hearing the learned counsel for the parties and after going through the aforesaid order we find that initially probate was granted but subsequently, the respondents of the appeal filed an application for revocation and the learned Probate court being satisfied that there was just cause of revocation, revoked the probate earlier granted.
5. Being dissatisfied the propounder preferred the aforesaid appeal.
6. During the pendency of the appeal the applicants for revocation of grant and the appellant in whose favour the probate was granted made compromise along with some other heirs by which properties which were the subject-matter of the Will were divided among themselves in a way which is in deviation from the terms of bequest and the Court has accepted such compromise and set aside the order of revocation without considering whether the order of the probate Court impugned before it was correct or not, and at the same time, has passed specific order that the probate as per initial grant will be issued with a copy of compromise annexed and in the record of Court, the compromise shall be preserved along with the original Will itself. Ultimately, the Division Bench held that the order in appeal should be treated as appellate decree passed and would be drawn up accordingly. Therefore, the compromise was made part of the decree and the decree has been drawn up in terms of the compromise and approved by the Division Bench.
7. After hearing the learned counsel for the parties and after going through the aforesaid materials, we find that there was an error on the face of the order sought to be reviewed in setting aside the order of revocation without arriving at its own conclusion as regards the legality and propriety of the order impugned in the appeal and making the compromise a part of probate originally granted.
8. It is now settled law that the Probate Court is a Court of conscience and the duty of the Probate Court is only to adjudicate whether the Will in question was the last Will and testament of the deceased, whether the same was duly executed and attested, whether the same was executed without being vitiated by force, fraud, undue influence, etc. and whether the testator had the required mental capacity to execute the Will. Apart from those questions, a Probate Court cannot go into the question of title of the testator nor can the Court grant a probate which is at variance with the terms of the Will.
9. Of course, a practice has grown up in India in recognising compromise between the heirs after the grant of probate, but in such a case, such compromise is merely recorded and kept with the record but such compromise is never made part of decree. The Courts in India have all along maintained that it is for the parties to compromise so arrived at, to enforce that agreement by way of suit and not in execution proceedings; therefore, such agreement is never formed part of probate. (See A.E.G. Carapiet v. A.Y. Darderian reported in AIR 1961 Cal 559 where the Division Bench has taken note of all the earlier decisions on this point).
10. In the case before us, the Probate Court after initial grant of probate being satisfied that there was just cause of revocation revoked the same and the Appellate Court, if satisfied that there was no such just cause, could set aside the order of revocation and in that case, the original probate would have revived. We have already pointed out that there was no argument on the merit but parties came to compromise and on the basis of compromise alone, the Court set aside the order of revocation without being satisfied whether the order of revocation was right or wrong. The procedure followed by the Division Bench was beyond the province of the Court dealing with an appeal against the order of revocation of grant.
11. We, thus, find that there was definitely an error apparent on the face of record. It is now settled by the Apex Court in the case of C.S.T. v. Pine Chemicals Limited reported in MANU/SC/0573/1995 : (1995) 1 SCC 58; (1995 AIR SCW 1718) that if a Court passes a decision over-looking a binding precedent and such decision is in conflict with the principles laid down in the said binding precedent, the order can be reviewed on the ground of error apparent on the face of record. In this case, the decision taken by the Division Bench is, on the face of it, at variance with the decisions of this Court as mentioned in the case of A.E.O. Carapiet (AIR 1961 Cal 559) (supra), and other mentioned therein, and those decisions are in vogue for about a century.
12. The next question is about the maintainability of an application for review at the instance of a person who was not party to the appeal. The decision relied upon by Mr. Basu opines that a person aggrieved by an order can only file an application for review and if he is not a party to the proceedings, he cannot be aggrieved. In our view, the principle laid down in that decision cannot have any application to testamentary jurisdiction where the final decision passed is a judgment in rem and is binding against the whole world unlike the ordinary cases where the judgment is only binding upon the parties or their representatives. The Probate Court is vested with power under Section263 to revoke a probate even suo motu if it appears that there is a just cause for revocation and the Court's attention is drawn to such fact by even a third party. Therefore, simply because the present applicants were not parties to the appeal, that fact cannot stand in their way in applying for review when they are undisputedly heirs and legal representatives of the deceased testator in case of intestate succession having coveatable interest in the probate proceedings.
13. Mr. Basu lastly, relied upon a decision of the Supreme Court in the case of K. Venkata Seshaia v. Kanduru Ramasubbamma reported in MANU/SC/0599/1991 : (1991) 3 SCC 338: (1991 AIR SCW 808) and contended that even in probate proceedings, there is scope of compromise and such practice has been recognised by the Supreme Court in the said case. After going through the said decision, we find that in a Special leave application arising out of a suit relating to immovable property, a compromise was effected among the parties although two of the parties initially claimed absolute title in respect of share of one of the parties who died during the pendency of the Special leave application by virtue of two different Wills alleged to have been executed by the lady. They ultimately, however, did not press their claim on the basis of those Wills and came to compromise with the other parties to the litigation. In such circumstances, the Supreme Court accepted the terms of the compromise as lawful. In our opinion, the said decision is of no assistance to Mr. Basu's clients. First, the said Special leave application did not arise out of a suit for grant of probate or revocation of the grant and as such, the Court had no occasion to deal with the question involved herein. Secondly, if a beneficiary under an alleged Will decides not to apply for probate and is satisfied with the share available to him according to intestate succession and enters into compromise with regards to his share, there is no wrong in accepting such concession as lawful in the absence of any probate or letters of ad-ministration. Even after obtaining a larger share by virtue of a Will than the one available to him according to intestate succession, such a beneficiary may relinquish his larger share by way of compromise. But the question before us is whether a Probate Court dealing with an appeal is entitled to dispose of the appeal by setting aside the order of revocation of grant not on merit but on compromise of some of the heirs of the testator. Therefore, the said decision does not answer the question raised before us.
14. We thus, find that the order sought to be reviewed should be recalled on the ground of error apparent on the face of record and the matter should be placed for hearing for considering the appeal on merit.
15. We thus, allow the application for review, in the facts and circumstances, there will be, however, no order as to costs.
P.N. Sinha, J.