Calcutta High Court
Ratan Kumar Sharma & Anr vs Jagdish Mulchandani on 8 May, 2018
Author: Soumen Sen
Bench: Soumen Sen
ORDER SHEET
GA 918 of 2018
WITH
TS 12 of 2017
IN THE HIGH COURT AT CALCUTTA
Testamentary & Intestate Jurisdiction
ORIGINAL SIDE
IN THE GOODS OF:NARAYANDAS MULCHANDANI(DEC)-AND-
RATAN KUMAR SHARMA & ANR.
Versus
JAGDISH MULCHANDANI
BEFORE:
The Hon'ble JUSTICE SOUMEN SEN
Date : 8th May, 2018.
Appearance:
Ms. Aparajita Rao, Adv.
Ms. P. Gandhi, Adv.
Ms. S. Gandhi, Adv.
The Court: This contentious cause is now sought to be
disposed of on the basis of a memorandum of settlement arrived at
between the parties.
The probate court is required to decide the validity and
genuineness of the Will. It operates as a declaration in rem.
Probate cannot be granted on the basis of the terms of settlement
arrived at between the parties. Any such grant would be defective
and contrary to law. In AEG Caripeat Vs. A.Y. Derderian reported
in AIR 1961 Cal 359 it has been categorically held that a grant of
probate cannot be made by the consent of the parties. It is the
duty of the Court to satisfy itself whether the Will proposed was
really and truly the Will of a capable testator or not. It may be
2
profitable to refer to the following passage from paragraph 28 of
the report which reads as follows :-
"28.......A Court of Probate is said to be a Court of Conscience
which is not to be influenced by private arrangements of the
parties. Either it grants probate to a Will or it rejects
such grant. For such a court, it is said, there is no middle
path for a happy compromise. The rule of law is stated to be
that there can be no probate by consent. Either it is grant
or refusal. The Court has to be satisfied in each case
whether the Will proposed is truly the Will of a capable
testator or not. It is not concerned with any other
arrangement. It has been said over and over again that there
is no such thing as conditional probate or an amended
probate. In is either all or nothing. That seems to be
sensible enough law."
What would be the duty of the probate court in a situation
where the parties have entered into a settlement to be considered
in a probate proceeding is explained in paragraph 29, 30 and 31
which read as follows :-
"29. The court, however, has a way of softening the austerity
and rigour of this procedure. The practice o the court has
discovered one such way in this regard. In England, such
terms of Settlement are allowed to be filed and are made what
is said to be a "rule of the court". See In the Estate of
Cook, (1960) 1 All ER 689 where the court pronounced for the
Will in solemn form and the terms of compromise were made a
3
Rule of Court. The testamentary rules and probate practice in
this court do not seem to indicate that there is such a
procedure available here for making such terms of settlement
a rule of the court. But nevertheless, it has formulated a
practice, consistently followed, almost without exception, of
making the terms if not a rule of the court but a record on
the file of the court. That does not mean that these terms
become a part of the grant or refusal of the probate or
executable as such. But it only means this that the records
of the court will show that the interested parties had
arranged to dispose of the property according to such
agreement when it reaches their hands, but then such
agreement does not thereby become executable as a decree of
court but can only be enforced by independent proceeding or
suit in the ordinary way as an agreement. The procedure so
adopted may be justified rationally by suggesting that this
gives a certain amount of authenticity and solemnity to the
agreement, In practical effect, the procedure helps nobody
because the filing of the agreement does not help in the
execution nor does it conclude any possible question on the
validity or enforceability of such agreement. The court only
allows to be filed with its records a Written declaration by
the parties themselves that the parties have between
themselves come to a certain arrangement and nothing more.
But this does not mean that the court makes a declaratory
decree in terms of the agreement filed. It does nothing of
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the kind. The court expresses no opinion whatever on such
agreement. The court's task is over by its judgment in
refusing or as in this case by granting the probate
independently of whatever agreement the parties may have
arrived at. The court has in this appeal independently come
to this judgment that this is the Will of which probate
should be granted. What the parties should do thereafter and
how they would dispose of the property when it reaches their
hands under the probate is a matter for them and not for the
testamentary court.
30. It is necessary to refer to certain Indian and English
cases in order to explain and clear this practice. In Boughey
v. Minor, 1893 P. 181 a testator by his Will bequeathed the
residue of his real and personal estate for the establishment
of an agricultural college. The Will was disputed by one of
his next of kin who was also heiress-at-law; but a compromise
was agreed to, by which the Will was to be proved in solemn
form without opposition. The Attorney General, as a person
interested in the disposal of the residue, was cited, and
appeared at the hearing to give his sanction to the
compromise. Curiously enough in this case also the Will was
opposed on the ground of testamentary incapacity, but after
negotiations an arrangement was made for settlement. The
court sanctioned such settlement and a probate was granted of
the Will accordingly. This, however, was a case of first
instance before any court had pronounced either for or
5
against the Will. In Saroda Kanta Dass v. Gobind Mohan Das,
12 Cal LJ 91 this procedure came up for comment. A Division
Bench of this court appears to come to the conclusion there
that when probate has actually been revoked by a court of
first instance on the ground that the will propouded is a
forgery, the parties are not entitled to bring the matter on
appeal and then by compromise obtain a reversal of the
decision and a revival of the probate without any
adjudication on the merits. It was held there that such
compromise could not be regarded as lawful within the meaning
of Order 23, Rule 3 of the Code of Civil Procedure. The ratio
of that decision proceeded on the basis that the action o a
Probate Court was in the nature of a proceeding in rem and so
long as the order remained in force, it was conclusive on the
due execution and the validity of the Will, not only upon all
the parties who might be before the Court, but also upon all
other persons Whatever, in all proceedings arising out of the
Will or claims under or in connection therewith. The argument
that the effect of the appeal was to reopen the whole matter
in controversy as to whether the application for probate
should be granted or refused apparently did not find favour
with the court. The previous case of Kamal Kumari Devi v.
Narendra Nath Mukharji, reported in 9 Cal LJ 19 has inspired
apparently the present practice of this court. This was the
decision of Woodroffe, J. sitting with Cox, J. Dealing with
the argument that there could be no agreement to take out
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probate in an amended form and that probate could not be
granted by consent of parties only and that any compromise
which excluded evidence of a Will was unlawful, Woodroffe, J.
at Page 29 of that Report observed:
"It is of course obvious that there can be no such thing as 'amended probate'. Either the Will of the testator is proved or it is not. If proved, what is proved are the provisions of the Will. Further there must be proof of the Wilt before probate is granted. The mere consent of parties without evidence in support of the Will and which satisfies the court of its due execution is insufficient. In the present case no such question arises for admittedly evidence was given before the Probate Court which satisfied in that both the Will and Codicil were duty executed.
Owing to an erroneous view of the law the parties expressed their intentions in an irregular form. There could be no 'amended probate' as stated in the ekramamah but when a testamentary instrument is propounded and a ca(sic)eat against the grant is entered, it is common practice that opposition to the grant should be withdrawn upon terms. Upon this being done, the promovent proceeds to prove the Will unless probate has already been granted in common form. In such a case and according to the practice on the Original Side of the Court the caveat is discharged and the grant made. Such an order is alone within the scope of the suit. But if a settlement has been arrived at under which 7 opposition has been withdrawn, it is recited in the decree that the parties have agreed to terms of settlement and it is ordered that such terms be recorded. The terms are then recorded in a schedule annexed to the decree. Such terms when as they ordinarily are beyond the scope of the suit are not the subject matter of the decree, and if not carried out, must be enforced by separate suit.
It is argued that in any case no settlement can be arrived at which has the effect of in any way interfering with the disposition of the testamentary instrument of which probate is sought. But in my opinion this is not so. Neither the court nor the parties can make for the testator any Will other than that which he has executed. When however all the parties beneficially interested under that Will consent they can agree to dispose of the estate in a particular manner when it reaches their hands. In that case they are really dealing with their own property. Such an agreement may ho given effect to either by a redistribution by and amongst themselves after the executor shall have made over the property in terms of the Will or without waiting for such a distribution in conformity with the Will by a direction given by all beneficially interested to the executor to give direct effect to the agreement which the parties have arrived at as to the disposition of the properties given to them by the Will."8
Finally, Woodroffe, J. at page 30 suggested the procedure in this way:
"The regular way to effect this was to obtain probate and letters of administration in terms of the Will and to merely record the agreement which if not given effect to would have been enforceable by a separate Suit. Had this been done there would have been nothing illegal in it.
"Woodroffe, J. started blessing the procedure as suggested. In course of time it became cursus curiae. In Secretary of State for India in Council v. Sm. Parijat Debi , Judicial Committee appears to have sanctified the same procedure. It is difficult to find what exactly is sanctified by the Privy Council, but it is taken generally that this procedure suggested by Woodroffe, J. was the procedure which was approved by the Privy Council. Sir Lancelot Sanderson delivering judgment of the Privy Council at p. 72 (of Ind App): (at p. 207 of AIR) said:
"Woodroffe, J. in the course of his judgment (9 Cal LJ 19) referred to the practice on the Original Side of the High Court, in a case where probate is granted and terms of settlement are recorded in a schedule annexed to the decree, and said that 'such terms when they ordinarily are beyond the scope of the suit are not the Subject-matter of the decree and if not carried out must be enforced by separate suit'. No doubt that is quite correct, and if this case were a claim by one party to the agreement of March 3, 1928, against another, 9 on the ground that the terms had not been carried out, it would properly be the subject of a separate suit."
31. Looking at this reference of the Privy Council to the case of Kamal Kumari, 9 Cal LJ 19 what was said to be the correct procedure was the procedure of filing a suit in respect of terms of settlement covering extraneous matters, but it has been understood in a wider sense as approving the procedure of recording in a schedule of the decree the terms of settlement disposing of the property of the testator whose Will for probate has been independently considered by the court. The reason why I say that it was so understood will appear from the two subsequent decisions of this court in Gouri Sankar Dutta v. Sm. Hari Bhabini Dutta, 41 Cal WN 858 (850) and Jagadish Chandra v. Upendra Chandra, 48 Cal WN 294 (300). Reference may also be made to the observations of Jenkins, C. J. in Surja Prasad Sukul v. Shyama Sundari Debi, 14 Cal Cal WN 967, where the learned Chief Justice upheld the validity of a compromise filed in this manner in a subsequent proceeding and which was enforced by a separate suit." The grant of probate is not opposed by the caveator. All objections are withdrawn by the caveator. The caveat is discharged. However, the Will has to be proved in solemn form as the conscience of the Court as to the genuineness of the Will has to be clear. In the event the Will is proved in solemn form, the 10 terms contained in the memorandum of settlement shall form part of the decree and recorded in a schedule annexed to the decree.
GA 918 of 2018 stands disposed of.
The testamentary suit being TS 12 of 2017 shall be placed in the list on May 11, 2018.
(SOUMEN SEN, J.) R.Bhar