Sitaram Shivchandrai Gadodia vs Gordhandas Shivchandrai

A.N. Mody, J.—One Shivchandrai Rampratap Gadodia died at Bombay on 29-3-1968 leaving behind a will dated 18-3-1967. He left behind him seven heirs and next-of-kins who are listed in the petition, two of them being his widow Laxmidevi and the minor son Nathmal Shivchandrai. Two caveats were filed against the said petition, one of them was filed by Nathmal who was then a minor. The said Nathmal was served with the citation through his mother, namely, the present defendant. The caveat also was filed through the mother, the present defendant. The affidavit in support of the caveat was also sworn and filed by the defendant Laxmidevi who is the present caveatrix. As admitted by her in her affidavit made on 31-3-1981 the citation was already served on her prior to 1972. She did not file any caveat then. As there were two caveats the petition was converted in two suits, being Suit No. 4 of 1970 and Suit No. 8 of 1974. By an order dated 26-8-1975 the probate was ordered to be issued by Madon J. Before the order was made certain consent terms were filed and both the caveats were withdrawn followed by the evidence of one of the attesting witnesses who was the Attorney of this Court. It appears that the probate remained to be issued in favour of the plaintiff, inter alia, because of the pendency of some litigation.

The defendant thereafter filed a caveat dated 1-9-1980. It appears that it was filed on 8-9-1980. The exact date, however, is not very material.

Mr. Kapadia for the plaintiff contends that the caveat is not maintainable now in view of the fact that the petition already having been disposed of there can be no question of filing any caveat. In any event the petition having been disposed of by a judgment which is a judgment in rem binds all the persons whether party or not, and the only remedy open will be to have the judgment set aside but no caveat can be entertained. He further contends that under the present High Court rules which came into force on 1-5-1980 the caveat ought to have been filed within 14 days from the service thereof; the same not having been filed within 14 days could not have been filed after coming into force of the rules without obtaining condonation of delay. He contends that in any event the caveat ought to have been filed within 14 days from the date of the coming into force of the High Court rules.

Mr. Shah says that the affidavit filed is possibly contrary to the actual fact. He says that the citation was probably served on the defendant after the order was made by Madon J., and that in that event the order would have been made without citation having been served on his client. He contends that in the absence of service of citation the entire procedure was contrary to law and the principle of natural justice, and the whole order was a nullity. In support of his contention he relies on Maneklal V. Shah v. Jagdish C. Shah 72 Bom. L R 719, wherein it is stated that each caveat results in separate suits and should be numbered as such. He contends that in view of that decision a judgment in one suit cannot be made binding in all the suits. He further relies on Bhagwandas Narandas Vs. D.D. Patel and Co., , headnote (f), wherein it is held that a decree in rem can be contested on the ground of fraud or collusion which does not go to the jurisdiction of a Court and that it is not necessary for the party against whom such a judgment is set up to bring a separate suit or proceedings to have it set aside; he may show in the suit or proceeding in which it is set up against him that it was obtained by fraud. He, therefore, contends that the caveat is maintainable.

As is apparent from the judgment of Aggarwal J. dated 10-12-1979 in Tribhovandas M. Rugani v. Vimal Vasantrao Dhurandhar Suits Nos. 35, 36, 37 and 38 of 1978, the order for issue of probate is a judgment in rem and binds the world. In that case the order was passed even when the other suits were pending and the following important principles were culled out from the case law cited:

"(1) The judgment of Probate Court must be presumed to have been obtained in accordance with the procedure prescribed by law and it is a judgment in rem. The objection that the respondents were not parties to it is thus unsustainable because of the nature of the judgment itself. (See Surinder Kumar and Others Vs. Gian Chand and Others, ).

(2) A judgment given in a Probate proceedings will be considered to be a judgment in rem and will bind not only the parties to the proceedings so far as the genuineness or otherwise of the will is concerned but will also bind other persons. ( Musammat Phekni Vs. Musammat Manki, ).

(3) The action of a Probate Court when it admits a Will to Probate or rejects it is in the nature of proceeding in rem and so long as the order remains in force it is conclusive as to the due execution and the validity of the Will not only upon all the parties who may be before the Court but also upon all other persons whatever in all proceedings arising out of the Will or claims under or connected therewith. Musammat Phekni Vs. Musammat Manki, .

(4) When the will has been propounded by a party interested and fairly rejected on the merits, it would defeat the policy of the law and be productive of many mischiefs if it could be propounded by the same party or by others who might be interested and the content thus renewed from time to time. The judgment or order rejecting the will is an order against all claiming under it and it stands on footing analogous to judgments in rem Musammat Phekni Vs. Musammat Manki, .

(5) The decision in an earlier testamentary suit being a judgment in rem the filing of a caveat after the said judgment will for all practical purposes be futile. (72 Bom. L R 719).

I am in respectful agreement with the principles enunciated by him. On my own I would have also taken the same view.

The judgment of Madon J. therefore binds everybody, including the defendant, and no caveat can be filed at this stage. Apart from the aforesaid position there is substance in the contention of Mr. Kapadia that the petition does not remain pending any more, it having resulted in a final order and therefore no caveat can be filed after it is so disposed of. The only remedy open to the caveator is to have the order set aside. It is true that if an order is obtained by fraud no separate suit is necessary, as held by this Court in the judgment referred to above. That judgment only says that the ground of an order being invalid can be taken up as a defence in the proceedings in which it is relied on and no separate proceeding is necessary. In the present case nothing is being taken up as a defence because the plaintiff has not taken any proceedings which are pending and which are being defended by the defendant. The only remedy that is available to the defendant is to apply for revocation of the probate if the requisite grounds exist. Even assuming, as contended by Mr. Shah, that the citation was served after the order of Madon J., the position will remain the same. Once the judgment is passed it acts in rem and binds everybody and the only remedy available will be to have set aside the order allowing the petition.

Mr. Shah contended that an order passed for grant of probate without serving of the citation would be a nullity. I do not accept that contention. The very provision of section 263 of the Indian Succession Act militates against this contention. If such a grant was a nullity there cannot be any question of revocation or annulment of the grant of probate. The section says that a grant of probate may be revoked or annulled for just cause and the explanation says that the just cause shall be deemed to exist, inter alia, where the proceedings to obtain the grant were defective in substance. Illustration (ii) mentions as one of the grounds, "The grant was made without citing parties who ought to have been cited". A separate application, therefore, has to be made for revocation or annulment and till that application is granted the probate remains effective.

In so far as the question of the caveat being beyond time is concerned it is not necessary for me to decide the contention of Mr. Kapadia.

In the circumstances the caveat is dismissed with costs.