Judgement

Appeal from a judgment and decree of the High Court (April 19, 1910) reversing a judgment and decree of the Subordinate Judge of Mozufferpur (December 21, 1907).

Under circumstances which are fully stated in the judgment of their Lordships the appellants instituted a suit in the Court of the Subordinate Judge of Mozufferpur against the first respondent, to whom probate of the will of one Bachu Singh had been granted by the District Judge of Mozufferpur under the Probate and Administration Act (V. of 1881), and against the two widows of Bachu Singh. The appellants by their plaint alleged that the will was a forgery, and prayed for a declaration that they were next reversioners to the estate upon the deaths of the widows, and that they were, as such, entitled to apply to the Court having probate jurisdiction for revocation of the probate. The appellants had opposed the grant of probate, claiming to be next reversioners, but the District Judge had held that they were not next reversioners and had no locus standi; this decision and the grant of probate were affirmed upon appeal to the High Court.

Ramnandan Singh, by his written statement in the present suit, again denied that the appellants were the next reversioners ; he pleaded further that that question was res judicata under s. 13 of the Code of Civil Procedure, 1882, and that the suit for a declaratory decree was not maintainable having regard to s. 42 of the Specific Relief Act, 1877.

The Subordinate Judge held that the suit was maintainable, and that there was no estoppel under s. 13 of the Code of Civil Procedure, 1882. In his opinion the proceeding under the Probate and Administration Act, 1881, was not a suit within the meaning of that section, and the question whether the appellants were the next reversioners was not directly or substantially in issue therein. Upon the facts he found that the appellants were the next reversioners and that Ramnandan Singh was not, as he claimed to be, the adopted son of the deceased. He accordingly made a declaration that the appellants were the next reversionary heirs to the estate of the deceased.

On appeal to the High Court the decision of the Subordinate Judge was reversed and the suit dismissed. The learned judges (Caspersz and Chatterjee JJ.) agreed with the findings of the Subordinate Judge that the plaintiffs were the next reversioners and that the first respondent was not the adopted son of Bachu Singh. They were of opinion that the plaintiffs, as next reversioners, had not merely a contingent interest, but a present interest, which, apart from the question of res judicata, rendered them competent to maintain the suit under s. 42 of the Specific Relief Act, 1877. They held, however, that the decision of the District Judge, affirmed by the High Court, raised an estoppel by res judicata under s. 13 of the Code of Civil Procedure. In any case the declaration prayed for would probably be infructuous, as the District Judge, having granted probate, would be entitled to hold that there was no just cause for revocation under s. 50 of the Probate and Administration Act, 1881. The appeal is reported, 11 Calc. L. J. 623.

1916. Feb. 21, 22, 23, 24. De Gruyther, K.C., and Sir W. Garth, for the appellants. Both Courts in India held that the suit was maintainable under s. 42 of the Specific Relief Act, 1877. It was within the discretion of the Subordinate Judge under that section to make the declaration. There was no estoppel under s. 13 of the Code of Civil Procedure, 1882. The proceeding before the District Judge under the Probate and Administration Act, 1881, was not a suit within the meaning of that section Mirza Kurratulain v. Nawab Nazhat-ud-dowla . (( 1905) L. R. 32 Ind. Ap. 244.) If a contentious matter under the above Act is a suit, ss. 53, 55, 83,"and 86 of the Act are unnecessary. The object of the proceeding was to provide a representative of the estate; the question of the appellants title was not directly or substantially in issue Rajah Run Bahadoor v. Lachoo Koer . (( 1884) L. R. 12 Ind. Ap. 23.) There is no res judicata under s. 13 unless the District Judge could have entertained the present suit Gokul Mandar v. Pudmanund Singh (( 1902) L. R. 29 Ind. Ap. 196.) ; Misir Raghobardial v. Sheo Baksh Singh . (( 1882) L. R. 9 Ind. Ap. 197.) He could not have done so, since by s. 15 of the Code of Civil Procedure, 1882, it could only be instituted in the Court of the Subordinate Judge. The decisions of the High Courts in India support the appellants contention Arunmoyi Dasi v. Mohendra Nath Wadahar (( 1893) I. L. R. 20 Calc. 888.); Jagannath v. Run jit Singh (( 1897) I. L. R. 25 Calc. 354.); Ganesh Jagannath v. Ramchandra (( 1896) I. L. R. 21 Bomb.); Lalit Mohan Das v. Radharaman Singh . (( 1911) 15 Calc. W. N. 1021.) In the last-named case it was sought to distinguish the present case, but no valid distinction exists.

Dunne, for the representatives of the deceased first respondent. The suit was not one in which a declaratory decree under s. 42 of the Specific Relief Act, 1877, should have been made. The only purpose for which the decree could be used was to support an application to the District Judge to revoke the probate. That application could have been made direct to the District Judge, but would have been barred by reason of his previous decision. But even if the suit was maintainable, the appellants were estopped under s. 13 of the Code of Civil Procedure, 1882. The proceeding before the District Judge was a suit within the meaning of s. 13. A contentious matter under the Probate and Administration Act, 1881, is given by that Act all the incidents of a suit under the Civil Procedure Code. The particular jurisdiction which the District Judge was exercising when he determined the issue is not material see Code of Civil Procedure, 1882, s. 12. The question whether the appellants were next reversioners was directly and substantially in issue in, and was vital to, the proceeding before him. A Court of competent jurisdiction referred to in s. 13 cannot be confined to the Court in which the particular suit could be instituted, but includes any Court whose jurisdiction extends to the matter of the suit having regard to its nature and value. This appears from explanation 6 to s. 13 of the Code ; ss. 15 and 16 (a) show that more than one Court may be competent to entertain a suit. Under s. 25 the District Judge had power to transfer the suit to his own Court. The decisions upon English law are not strictly relevant Rajah of Pittapur v. Row Buchi Sittaya . (( 1884) L. R. 12 Ind. Ap. 16.) So far as they are in point they support the respondents Barr v. Jackson (( 1845) 1 Phill. 582.) ; Spencer v. Williams . (( 1871) L. R. 2 P. & D. 230.) Concha v. Concha (( 1886) 11 App. Cas. 541.) is distinguishable, since a decision of the question of domicil there in issue was not necessary to the decision of the Probate Court.

De Gruyther, K.C., replied.

March 16. The judgment of their Lordships was delivered by Sir Lawrence Jenkins. This is an appeal against a decree of the High Court at Calcutta, dated April 19, 1910, reversing the decree of the Subordinate Judge of the First Court, Mozufferpur, dated December 21, 1907.

The expressed purpose of the litigation is to obtain a declaration that the plaintiffs are the next reversioners to the estate of Bachu Singh according to Hindu law, and, as such, entitled to apply for a revocation of probate.

The facts my be shortly stated. On November 12, 1899, Bachu Singh died, leaving two widows, the defendants Mussamut Ram Rachan Kunwar and Mussamut Ram Kishori Kunwar, but no male issue. On September 22, 1902, the defendant Ramnandan Singh applied in the Court of the District Judge of Mozufferpur for probate of a writing alleged by him to be the last will of Bachu Singh. In that writing he is described as Bachu Singhs kartaputra. The two widows, though heiresses of the deceased Bachu Singh, did not oppose the application. Caveats, however, were lodged by three groups of persons, and the plaintiffs in this suit were the members of one of these groups. There thus arose a contention as to the grant of probate, and the proceedings thenceforth took, as nearly as might be, the form of a suit according to the provisions of the Code of Civil Procedure, in which the petitioner, Ramnandan Singh, was the plaintiff, and the plaintiffs in this suit, with others, were the defendants. In due course issues were framed, and they raised the two material and essential questions, first, whether the present plaintiffs, as persons by whom the caveat had been entered, had, as it was termed, any locus standi to oppose the application for probate, and, secondly, whether the will propounded was the genuine and duly executed will of Bachu Singh.

After evidence, oral and documentary, it was held on the first issue that the caveators had failed to prove their interest, and on the second issue that the will was proved. In accordance with this finding it was ordered that "probate be granted to Ramnandan Singh, petitioner, executor." From the order sheet it appears that Ramnandan was held to be an executor by implication. The present plaintiffs preferred an appeal to the High Court. The appeal was heard and dismissed with costs on February 8, 1905. No appeal was preferred to His Majesty in Council.

On August 7, 1905, the present suit was instituted in the Court of the First Subordinate Judge of Mozufferpur. The plaint states the material facts, save that it erroneously alleges that letters of administration with the will attached were granted to Ramnandan. It is then averred in paragraph 9 as follows " These plaintiffs have been advised that so long as these letters of administration are in force they have no claim to the reversionary right to the estate of the deceased; and, furthermore, that they cannot apply for the revocation of the said letters of administration until what time they obtain a declaratory decree from the civil Court to the effect that they are the nearest reversioners according to Hindu law of the deceased Bachu Singh, and therefore entitled to his estate in case of an intestacy after the death of the defendants second party." The defendants second party were the two widows. The prayer of the plaint as originally framed was in these terms "that it be declared that the plaintiffs are the next reversioners to the estate of the late Bachu Singh according to Hindu law." By a subsequent and significant amendment these words were added " and as such are entitled to apply to the Probate Court to get the probate or letters of administration granted to Ramnandan Singh revoked."

Before the hearing Mussamut Ram Rachan Kunwar died, and by an order of February 4, 1907, her co-widow was substituted in her place as legal representative.

On November 6 the following issues were framed —(1.) Is the suit maintainable ? (2.) Is the suit barred by s. 13 of the Code of Civil Procedure ? (3.) Is the suit bad for non-joinder of parties ? (4.) Is the suit barred by limitation ? (5.) Are the plaintiffs the nearest reversionary heirs of Rup Narayan Singh, alias Bachu Singh ? (6.) Is the defendant No. 1 the kartaputra of the said Rup Narayan Singh ? On these issues the findings of the Subordinate Judge were in the plaintiffs favour, and by the decree it was declared that the plaintiffs were the gotias of and reversioners to the estate of Bachu Singh. In the plaint there was no prayer as to their being gotias.

An appeal to the High Court was preferred by Ramnandan Singh. It succeeded on the ground that the suit was barred by the rule of res judicata. But though the High Court held that the case was governed by s. 13 of the Code of Civil Procedure, 1882, it tried the issue, which, in that view, was withdrawn from its consideration by the terms of the section.

From this decree the plaintiffs have preferred the present appeal. The contest before their Lordships has been confined to the two issues (1.) Is the suit maintainable ? (2.) Is the suit barred by s. 13 of the Code of Civil Procedure ? The first of these problems takes the more specific form of an inquiry whether in the circumstances of this case the plaintiffs are entitled to claim from the Court a mere declaratory decree of the character proposed.

The Courts power to make a declaration without more is derived from s. 42 of the Specific Relief Act, and regard must therefore be had to its precise terms. It runs as follows " Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief Provided, that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so."

A plaintiff coming under this section must therefore be entitled to a legal character or to a right as to property. Can these plaintiffs predicate this of themselves ? Clearly not; and this is, in effect, stated in the plaint, where they described themselves as entitled to Bachu Singhs estate in case of an intestacy after the death of the defendant widows (paragraph 9). But as things stand there is no intestacy. Bachu Singhs will has been affirmed in a Court exercising appropriate jurisdiction, and the propriety of that decision cannot in the circumstances of this case be impugned by a Court exercising any other jurisdiction. It is not suggested that in this litigation the testamentary jurisdiction is, or can be, invoked, and yet there can be no doubt that this suit is an attempt to evade or annul the adjudication in the testamentary suit, and nothing more. This is apparent from the plaint, from the amendment made in. the High Court after Ramnandan had died, and from the very circumstances of the case.

This use of a declaratory suit illustrates forcibly the warning in Sree Narain Mitter v. Sreemutty Kishen Soondory Dassee (( 1873) L. R. Sup. Vol. Ind. Ap. 149, 162.), where it was said " There is so much more danger in India than here of harassing and vexatious litigation that the Courts in India ought to be most careful that mere declaratory suits be not converted into a new and mischievous source of litigation."

Here, however, no question of discretion arises ; the suit fails at the very outset, for the plaintiffs, while the will stands, as stand it must for the purposes of this suit, are not clothed with a legal character or title which would authorize them to ask for the declaratory decree sought by their plaint. The suit therefore should be dismissed

because it is misconceived and incompetent.

Some reference was made in the course of the argument to a reversioners right to sue where a widow with the particular interest was committing acts of waste to the prejudice of those who might succeed to the inheritance on her death. But such a position of necessity assumes the absence of an immediate and absolute testamentary disposition. In this connection there is an instructive comment in Kathama Natchiar v. Dorasinga Tever (( 1875) L. R. 2 Ind. Ap. 169, 191.), where it was said in reference to such suits " Suits of that kind form a very special class, and have been entertained by the Courts ex necessitate rei. It seems, however, to their Lordships that if such a suit as that is brought it must be brought by the reversioner with that object, and for that purpose alone, and that the question to be discussed is solely between him and the widow; that he cannot, by bringing such a suit, get, as between him and a third party, an adjudication of title which he could not get without it."

There has been much discussion at the Bar as to the application of the plea of res judicata as a bar to this suit. In the view their Lordships take the case has not reached the stage at which an examination of this plea and this discussion would become relevant. But in view of the arguments addressed to them their Lordships desire to emphasize that the rule of res judicata, while founded on ancient precedent, is dictated by a wisdom which is for all time. " It hath been well said," declared Lord Coke, " interest reipublicae ut sit finis litium, otherwise great oppression might be done under colour and pretence of law " 6 Coke, 9a. Though the rule of the Code may be traced to an English source, it embodies a doctrine in no way opposed to the spirit of the law as expounded by the Hindu commentators. Vijnanesvara and Nilakantha include the plea of a former judgment among those allowed by law, each citing for this purpose the text of Katyayana, who describes the plea thus " If a person though defeated at law sue again he should be answered, You were defeated formerly. This is called the plea of former judgment." (Seethe Mitakshara (Vyavahara), bk. IL, ch. i., edited by J. R. Gharpure, p. 14, and the Mayuka, ch. i., s. 1, p. 11 of Mandliks edition.) And so the application of the rule 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.

Their Lordships have not failed to observe that Ramnandan Singh died before the hearing in the High Court, but they refrain from pronouncing any opinion as to its legitimate consequence in this suit, for this formed no part of the discussion before them. They have dealt with this litigation, as it was presented to them, apart from the possible effect of Ramnandans death.

Their Lordships will, therefore, humbly advise His Majesty that the appeal should be dismissed. The appellants will pay the costs of such of the respondents as have appeared.