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Report No. 69

III. Orders Refusing Probate

16.33. Section 41-Negative Orders regarding probate.-

Some controversy exists on the question how far an order refusing the grant of probate falls under section 41, which provides that final judgment etc. of a competent court in the exercise of probate etc. jurisdiction which "confers upon or takes away from any person any legal character " is relevant, where the existence of any such legal character etc. is relevant. The difficulty seems to have been caused by certain observations in a Madras case,1 which are as follows:-

"The judgment of the probate court refusing probate takes away from the executors named in the will the legal character of executors, and from the legatees and beneficiaries their legal character as such, and such result is final as against all persons entrusted under the Will."

1. Chinnasami v. Harihara Badra, 1893 ILR 16 Mad 380 (383).

16.34. It may, however, be noted that the actual question in that case was not one directly concerning section 41. There was no previous judgment of a probate court which came for interpretation. The facts of the case were, that an application had been made previously under the Guardians and Wards Act, 1890 on behalf of the widow of a person, for a declaration that she was the guardian of the person and property of the minor son of that person. The application had been opposed by X and Y, who claimed to be testamentary guardians of property appointed by the will.

The court found the will to be a forgery, and made orders accordingly. Thereafter, X and Y, filed the present application for probate of the will under the Probate and Administration Act, 1881. which was opposed by the widow. One of the contentions was that the question of the genuineness or otherwise of the will was res judicata. The court rejected the contention, on the general principle of probate in support of the plea of res judicata is a judgment of a competent probate court. In the courts of the observations which led to this conclusion, the court observed:-

"In our opinion, the judgment of a probate court granting or refusing probate is a judgment in rem and therefore the judgment of any other cour in a proceeding inter partes cannot be pleaded in bar of an investigation in the probate court as to the factum of the will propounded in that court."

16.35. Bombay cases.-

In a Bombay case,1 a judgment had dismissed an application for probate on the ground that the execution of the will was not proved. The judgement was held not to bar a suit by the same applicant as a person who was a beneficiary under the will, for a declaration that the property of the deceased belong to them. The court observed: "From a refusal to grant probate, it, by no means, follows that in the opinion of the court, the will propounded is not a genuine will of the testator.""

1. Ganesh v. Ram Chandra, 1887 ILR 21 Born 563 DB.

16.36. The correct position seems to have been clearly laid down in a subsequent Bombay case,1 In that case, the probate court had refused the probate of the will on the ground that the testator was not of sound mind. (See the facts given in the Order of Reference.) The question was, whether this finding was conclusive against the defendants (claiming to be executors under the will), against whom the widow of the testator brought the present suit as executor de son tort. The Full Bench gave its answer to the question in the following words:-

"With regard to the first question referred, we are of opinion that section 41. Evidence Act, is not applicable to the judgment of the Appellate Court. The finding of a court that an attempted proof has failed is not a judgment such as is contemplated in that section. The only kind of negative judgment which is contemplated is that which expressly takes away from a person the legal character which has up to that time subsisted. That is not the case with the judgment in question here."

1. Kalyan Chand v. Sita Bai, ILR 38 Born 309: AIR 1914 Born 8 (15) FB.

16.37. Recommendation as to refusal of probate.-

It appears to be desirable to make the position clear, and to adopt the view expressed in the later Bombay case.1 We recommend that section 41 should be amended for the purpose.

1. Kalyan Chand v. Sita Bai, (para. 16.36, supra).



Indian Evidence Act, 1872 Back




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