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1 - 5 of 5 (0.15 seconds)Section 11 in The Probate and Administration Act, 1977 [Entire Act]
The Probate and Administration Act, 1977
Nistariny Dabya, Miner, By Her Guardian ... vs Brahmomoyi Dabya on 11 July, 1890
In Nistariny Debya v. Brahmomoyi (1890) ILR 18 C 45 it was held that the mere absence of a special citation in proceedings in which probate of a will is granted is not where the person to whom a citation has not been issued is otherwise aware of the proceedings a ' just cause ' for revocation. I therefore hold that the 1st appellant was a party to the proceedings in 1908 and is bound by the decision of the Court. The learned Judge has held that the 1st appellant is debarred from reagitating the matter on account of res judicata. It is contended that it has been so held solely on the ground that 1st appellant was aware of the proceedings which were not strictly a suit. Further it will be noticed that the validity of the will has been upheld by this Court, in A. A. O. No. 275 of 1920 (Phillips, J.. and myself). There this 1st appellant put in a memo. of objections wherein he repeated his allegation that in view of the agreement the Court ought to have made him a necessary party and enabled him to call evidence. He also adopted all the grounds of appeal against the validity of the will filed by the then petitioners (his brothers). It is not disputed that these form his grounds in the present appeal. This memo. of objection was not pressed and was dismissed by us. In my opinion the 1st appellant is barred by the application of the principle of res judicata though the words of Section 11 may not be strictly applicable. The matter has previously been in issue between the same parties and the validity of the will has been fully and finally established and in my opinion it would only be encouraging this protracted litigation to proceed to further lengths to hold the opposite. It is contended that the 1st appellant has up to now not had a chance to present his case. I am unable to agree. He had every chance to attend at the original hearing in 1908. He was heard in 1910 when his application to revoke was dismissed. He did not take steps to displace the order refusing to make him a party to suit No. 5 5/17; but he filed as stated a memorandum of objections to the appeal.
G.H. Hook vs The Administrator Of Bengal on 10 February, 1921
The Privy Council has held in Hook v. Administrator General of Bengal (1921) ILR 48 C 499 that the plea of res judicata still remains apart from the limited provisions of the Code and in Sheoprasan Singh v. Ramanandam Prasad Singh (1916) ILR 43 C 694 : 31 MLJ 77 their Lordships held that the application of the rules 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. The learned District Judge has further dismissed the appellants' petition on the ground that the judgment of the Court of Probate substantiating the will is a judgment in rem.
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