Chatterji, J.@mdashThis application in revision is directed against an order disallowing some evidence sought to be adduced by defendant 1 in the course of hearing of a suit. The suit was instituted by the plaintiffs on 5th September 1941, substantially for recovery of Rs. 31,011-6-0, as annuity said to be payable to them under the terms of two wills dated 1st February 1914 and 14th August 1920, left by their maternal great grand-father Rai Bahadur Idal Singh who died on 17th August 1920. After his death probate was granted to defendant 2 Mt. Sham Sunder Kuer who was an executrix mentioned in the last will. She is the widow of a predeceased grandson of the deceased testator. Defendant 1 is the son of the deceased testator who was a minor at the time of his death and has since attained majority.
2. Defendant 1 filed his written statement on 20th February 1942 setting forth various defences. In para. 5 ho alleged that the grant of probate was not binding on him as the wills were proved during his minority when he could not challenge the due execution or legality thereof, that the probate was
vitiated in law on account of the fact that this defendant was not properly and effectively represented in the proceedings before the District Judge and the so-called testamentary guardian who cited this defendant through herself as his guardian was the very identical person who in her own interest and in the interest of her daughter-in-law was working in concert with almost all the servants of the estate with a view to suppress the real genuine last will of the late Rai Bahadur Edal Singh which is dated 5th Sawan Awal 1327 Fasli,
and that the will dated 14th August 1920 of which probate was obtained was a forgery. The hearing of the suit commenced on 27th January 1943. On that day, documents on both sides apparently including the probate were marked as exhibits without formal proof. Examination of witnesses commenced on the next day and the plaintiff''s oral evidence was closed on 1st February. On 2nd February, when the defendants'' witnesses were being examined some questions were sought to be put regarding the allegations made in para. 5 of the written statement. Objection on behalf of the plaintiffs was taken to the relevancy and admissibility of those questions and the matter was heard the next day. On the following day, that is, 4th February the learned Subordinate Judge passed his order disallowing the questions which were sought to be put on behalf of defendant 1. It is this order which is sought to be revised by the present application.
3. It has been argued by Mr. P.R. Das on behalf of the petitioner that having regard to the provisions of Section 44, read with Section 41, Evidence Act, it is permissible for defendant 1 to show that the grant of probate which was produced and proved by the plaintiffs in this suit was obtained by fraud, and for that purpose to prove that the will dated 14th August 1920, is a forgery. Section 44 is in these words:
Any party to a suit or other proceeding may show that any judgment, order or decree, which is relevant u/s 40, 41 or 42, and which has been proved by the adverse party, was delivered by a Court not competent to deliver it, or was obtained by fraud or collusion.
It is said that the grant of probate is a decree which is relevant u/s 41, Evidence Act. The relevant portion of that section is as. follows:
A final judgment, order or decree of a competent Court, in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction, which confers upon or takes away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing not as against any specified person but absolutely, is relevant when the existence of any such legal character, or the title of any such person to any such thing, is relevant.
4. It is obvious that unless the probate is a judgment, order or decree, Section 44 can have no application. "Probate" is defined in Section 2(f), Succession Act (39 of 1925), as follows:
Probate'' means the copy of a will certified under the seal of a Court of competent jurisdiction with a grant of administration to the estate of the testator.
In Komollochun Dutt v. Nilruttun Mundle (1999) 4 Cal. 360 it was held by Markby J., that the grant of probate is a decree of a Court. On the other hand, it was observed by Banerjee J. in Rajib Panda v. Lakhan Sendh Mahapatra (1900) 27 Cal. 11 that probate is not a judgment, order or decree. The special characteristic of a probate is that it is made over by the Court granting it to the party to whom it is granted and in case the grant is revoked, the probate has to be surrendered to the Court which granted it (Section 296, Succession Act). This characteristic is hardly consistent with the probate being regarded as a decree. Then, does the grant of probate satisfy the definition of decree as given in Section 2(2), Civil P.C.?
Decree'' means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final.
5. The order granting the probate is an adjudication which conclusively determines the rights of the parties. That order is a decree and as such is appealable. An appeal from this decree is in no way dependent on the grant of probate being actually made. The actual grant of probate may be delayed until the payment of the requisite court-fee. An appeal from the decree will lie though the grant of probate has not yet been made. The grant of probate may be held up till the disposal of the appeal from the order granting the probate. Suppose the appeal is dismissed and the grant of probate is made thereafter, will any further appeal lie from this grant of probate? Certainly not. The obvious reason is that it is not a decree. If we look to the form of probate prescribed in Schedule 6, Succession Act, it will also appear that probate is not a decree. Section 289 of the Act provides that the probate shall be granted in this prescribed form. The form is as follows:
I, Judge of the District of hereby make known that on the day of in the year, the last will of, late of, a copy whereof is hereunto annexed, was proved and registered before me and that administration of the property and credita of the said deceased, and in any way concerning his will was granted to, the executor in the said will named, he having undertaken to administer the same, and to make a full and true inventory of the said property and credits and exhibit the same in this Court within six months from the date of this grant or within such further time as the Court may, from time to time, appoint, and also to render to this Court a true account of the said property and credits within one year from the same date, or within such further time as the Court may, from time to time appoint.
6. The words "hereby make known" make it clear that the probate does not amount to any adjudication, but it only recites the fact that the adjudication was already made. Then looking to the grant of probate in this particular case, it appears that the order granting the probate was passed on or about 3rd January 1922, and that the grant was made bearing date 80th July 1924. On the face of it this grant does not look like a decree. A decree bears the date of the judgment, but that is not the case here. I am inclined to think that the grant of probate is not a decree. It has not been suggested that it is a judgment or order. Consequently, Section 44 will have no application. But assuming that it does apply, it is manifest that the grant of probate cannot be revolted in the present suit. It cannot be revoked except by the Court which granted it. Defendant 1 wants to adduce evidence to prove that the will dated 14th August 1920 is a forgery. But unless the probate is revoked no useful purpose will be served by going into the question as to whether the will is a forgery. So long as the probate stands, no effective relief can be obtained by the defendant in this suit. It has been suggested that if in this suit the Court comes to a finding that the will is a forgery, it will be open to defendant 1 to apply to the probate Court for revocation of the grant of probate on the basis of that finding. But why should such finding be given when the defendant cannot get effective relief in this suit? Mr. Das relies on the cases in Rakshab Mondal v. Srimati Tarangini Devi AIR 1921 Cal. 332 ,
having regard to the wide terms of Section 44, Evidence Act, it is not possible to say that it is not open to a Court, other than the Court from which a grant has issued, in cases of fraud or collusion to deal with the matter and decide whether the grant has been obtained by fraud or collusion.
But at the same time he said:
I think, however, that in such cases, and where it is open to the party alleging fraud to apply to the Court from which the grant issued, that the better course would be to stay the suit to enable an application to be made to revoke the grant. It is manifestly inconvenient that a Court, which has no jurisdiction to recall or revoke the grant, should deal with the matter when it can be dealt with in a Court which is both competent to pronounce on the fraud'' and, if necessary revoke the grant.
7. The appeal, however, was decided on a different ground, namely, that no fraud was proved. This case, therefore, is really of no assistance to the petitioner. In the Bombay case, which was decided by a Single Judge, the question was raised as to whether in a proceeding u/s 476, Criminal P.C., concerning the forgery of a will of which probate was granted evidence was admissible u/s 44 to prove that the will was a forgery. The learned Judge was of opinion that Section 44 would apply if the probate decree were relied upon by the accused. But his actual decision was this:
As regards the present application u/s 476 although Section 44, Evidence Act, does not apply, I think that evidence of forgery is admissible in the same manner as it would be admissible in a criminal case, the applicant admitting the validity of the probate decree and the title of the executors.
8. On the merits he rejected the application u/s 476. This case, therefore, cannot be regarded as an authority on the question of applicability of Section 44 to a case like the present. In the Patna case all that was held was that where a divorce decree of a foreign Court has been proved, evidence may be adduced to show that it was pronounced by a Court having no jurisdiction. But the case of a probate which, even though it might have been obtained by fraud, can be revoked only by the Court which granted it stands on a different footing. In my opinion the learned Subordinate Judge was right in disallowing the evidence sought to be adduced.
9. I would accordingly dismiss the application with costs. Hearing fee, three gold mohurs.
Sinha J.
I agree.
