Walter Rebells and another vs Maria Rebells and others

Maclean, C.J.—The question and the only question which has been argued before us, and which we have now to decide upon this appeal, is whether the grant of probate and the grant of letters of administration with the Will annexed of Francis Rebells, the testator in the matter, ought to be revoked. The applicants are his only two sons, who at the date of the Will, which was in the year 1880, were infants, aged ten and six years respectively. The Petitioner, Walter, is the elder of these two infants, and he attained his majority in the year 1888. The younger brother, Peter, the other applicant before us, attained his majority some time in 1892. The history of this case is shortly this:- The testator died in the year 1880 having made a Will, dated a few days before his death, and under that Will he gave his three infant children, for he had a daughter, now one of the Respondents, Mrs. Lucas, a certain share of his property, and he gave to his mother and his sisters what has been described, and I do not think the description has been challenged, as the most valuable portion of his estate, and he gave other properties to other persons other than his three children. He died, as I have said, a few days after making his Will, on the 5th October 1880, the Will having been made on the 26th of the preceding September. He appointed Nawab Khajah Absanullah and W.S. Dias, executors under his Will. Mr. Dias was a step-son. On the 12th September 1880, Mr. Dias alone petitioned the District Judge of Dacca for probate of the Will, and he asked that a citation should be served or issued upon his co-executor only. He said, nothing in that petition about issuing a citation upon the heirs or upon any of the beneficiaries under the Will.

It appears from the order issued in relation to that application, that a notice was directed to be duly issued, and I take it the notice there referred to, must be taken to be the notice which Mr. Dias asked should be issued, viz., a citation on his co-executor. But for some cause which remains unexplained, that application was not proceeded with, and on the nth May 1881, it was dismissed by the Judge for want of prosecution. Why that application was not proceeded with remains unexplained, and although we have invited the vakil, for the Respondents to afford us some explanation, they are not in a position lo do so. But on the 22nd September 1881, Mr. Dias made a fresh application for probate. He did not ask in his petition on that application that service should be effected on any body, but he suggested that his co-executor was not willing to act and so he made the application alone. What took place on that application, as appears from the order-sheet, is that on the 26th October 1881, it was ordered that a certain day be fixed for the hearing and "that notice do duly issue, and after copies of petition are filed, Ittalanama do issue and affidavit in respect of service be taken.

That application was proceeded with, and on the 30th December 1881 probate was granted to Mr. Dias alone. That was in 1881. Mr. Dias died in September 1887, and in the same year letters of administration with the Will annexed were granted to Petitioner''s sister, Mrs. Lucas. There is nothing to show, at least no evidence has been adduced before us to show, that when that application was made, there was any citation upon the two infant Petitioners, both of whom at that period were infants. In the year 1888, as I have said before, Walter attained his majority, and he seems to have recognised the Will to the extent that he has been dealing with his share under it. In the year 1892, the younger brother Peter attained his majority, and he also appears to have dealt, to some extent, with his share under the Will; but having received information, whether well-founded or not, it is not necessary for us to consider on the present occasion, he and his brother on the 13th July 1894 instituted this suit for the revocation of the probate, and the ground on which they ask for such revocation is that the Will is not genuine; for the purposes, however, of the present appeal, their contention is that they are entitled to have probate revoked, on the ground that the case falls under sec. 234 of the Indian Succession Act.

That sec. is in these terms:-"The grant of probate or letters of administration may be revoked or annulled for just cause." And "just cause" is explained in this wise:-"that the proceedings to obtain the grant were defective in substance, that the grant was obtained fraudulently by making a false suggestion or by concealing from the Court something material to the case," and so forth.

The only ground for contending that there is just cause to have these letters of administration revoked in the present case, is that the probate was granted to Mrs. Dias without any citation having been served on the infant heirs. Now, no doubt, according to the practice in England if a Will be proved by the executors in common form, it is open to the next of kin, unless, by their conduct or by acquiescence or for some reason of that nature, they have barred themselves of their remedy to call upon the executors to prove their Will in solemn form.

It is stated that according to the law in India there is no distinction between proving a Will in "common" as opposed to "solemn" form. But I think that the sections of the Indian Succession Act point clearly to this that there is a difference between cases which are contested and cases which are not contested; and that if the proper persons be cited and appear and desire to contest the validity of a Will, sec. 261 points out the procedure in contentious cases as opposed to cases where there is no contest. Here, inasmuch as apparently no one was served except the co-executors, the grant of probate was not contested and would be regarded in England as a grant of probate in common form only. The first question we have to decide is whether these infants, as a matter of fact, were served with a citation in this case. The only Respondents who appear here are certain purchasers form Mr. Dias. Mrs. Lucas, the testator''s only daughter, and at present his legal personal representative, does not contest the present proceeding, but the Respondents suggest that she is acting in collusion with the Petitioners.

The only Respondents who appear before us to day, are two of the purchasers from the executor and the grandmother and sister.

Now, the first question we have to decide is whether, in fact, the infants were served with this application of the executor Mr. Dias.

It appears that according to practice the process papers in suits of this nature are, after a certain time, destroyed, and the Respondents say it is impossible for them to prove whether these minors were served upon the evidence, we must take it that in point of fact they were not served.

If we look at page 40 of the additional paper-book, we find that the District Judge directs that notice do issues without specifying the individuals upon whom the notice was to be served.

In the previous petition the executor only suggested that his co-executor should be served, and the clerk who was called says (p. 48) he cannot remember who were served with special notices. He says in his deposition-''I remember well that a special notice was issued to Nawab Khajah Ahsanullah. I do not remember to whom special notices were issued in this case. According to my practice I cannot say to whom special notices ought to have been issued, at least I don''t remember.'' Then, if the minors were not served, the question arises whether the absence of such service Would be "just cause" for revoking the probate within the meaning of sec. 234 of the Indian Succession Act. I think it would. One of the illustrations of "just cause" is that the grant was made without citing parties who ought to have been cited. The executors in this case would have got rid of all the difficulties which have now been created by simply serving the minors, and by having a proper guardian ad litem appointed for them in the probate proceedings. At this time apparently Mr. Dias was acting as their quasi guardian. It would have been a simple matter to have had citations issued on the minors and also to have asked the Judge as evidence of the procedure adopted to record upon his order-sheet that citations had been issued and had been properly served upon the minors.

In my opinion where infants are concerned, where their interests are affected, and where a Will is produced for probate, the effect of which is to lake away from them property to which but for such Will they would be entitled as heirs, it is imperatively necessary that Such probate should not be granted behind their backs or without their having an opportunity of contesting its validity. If there were no genuine Will, in this case these three children of the testator would have taken the whole of the estate. They were not served. I think they ought to have been served, and they are now entitled to come to the Court and say "all we ask is that if this is a genuine Will, it may be proved in our presence." Were it otherwise, an opening would be afforded for fraud, and infants, by fraudulent Wills admitted to probate on ex-parte applications, would run grave risk of losing property to which, as heirs, they are entitled. I think that if a Will, which disinherits an infant, be admitted to probabe without the infant being cited, when he attains his majori he is entitled to require the executor to prove the Will in his presence.

There have been various cases cited by the learned vakil for the Appellant which appear to support the view I have just expressed. Of course we say nothing as to whether the Will is or is not genuine. The only question we are now deciding is whether the infants are entitled to have the Will proved in their presence.

The case will go back with this indication of our opinion.

As to costs, each party will pay his own costs in the Court below. The costs of this appeal will abide the result.

We assess the hearing fee at Rs. 300.

Future costs in the Court below will be dealt with by the Judge in the Court below.

Banerjee, J.

I agree with the learned Chief Justice in thinking that this case ought to go back. The question raised before us is whether there is just cause within the meaning of sec. 234 of the Indian Succession Act, for revocation of the probate granted to Mr. Dias, and the letters of administration with Will annexed to Mrs. Lucas after the death of Mr. Dias.

The learned vakil for the Appellants contends that there is just cause within the meaning of the section, it being "just cause" of the first description referred to in the explanation to that section, viz., that "the proceedings to obtain the grant were defective in substance," by reason of the grant having been made without citing the Petitioners who ought to have been cited. In support of this contention, illustration "b" of that section is relied upon; and it is argued that, as a matter of principle, the Petitioners, heirs-at-law of the alleged testator whose interests have been materially affected by the Will ought to have been cited before the grant (sic) probate.

On the other hand, the learned vakil for the Respondents contends that there was general citation in this case; that no one was entitled to special citation, that the absence of special citation does not render the proceedings defective in substance, so as to entitle anyone to ask for revocation of the grant of probate and letters of administration, and that illustration "b" relied upon by the other side, relates to cases coming under sec. 199 of the Indian Succession Act, which renders the issue of citation on the next of kin necessary before the grant of letters of administration with the Will annexed to any legatee other than a universal or residuary legatee. And the case of Nistarinee Debya v. Brahmamoyee Debya I. L. R. 18 Cal. 45, which is relied upon in the judgment of the lower Court, is also referred to in the course of the Respondents'' argument.

After considering the arguments on both sides, I am of opinion that just cause has been made out for the revocation of the probate and letters of administration in this case. It is quite true that sec. 250 of the Indian Succession Act, which provides for the issue of citations, does not render it obligatory on the Court to issue any special citation, but merely declares that it shall be lawful for the District Judge or District. Delegate "to issue citations calling upon all persons claiming to have any interest in the estate of the deceased (sic) to come and see the proceedings before the grant of probate or letters of administration.

But as has been observed in several cases, it is very desirable that District Judges should exercise the power vested in them by sec. 250 whenever they have any reason to think that the interest of any party is likely to be affected if no special citation is issued; and it is not only desirable but necessary for the ends of justice that this power should be exercised largely in issuing special citations, when it appears that some of the heirs whose interests arc affected by the Will arc minors.

It is argued that illustration "b" of sec. 234 only refers to cases where, as in the class of cases contemplated under sec. 199, it is imperative on the Court to issue a special citation.

I do not think that is the meaning of the illustration. The case contemplated by the illustration is one in which the grant is made without citing the parties who ought to have been cited, that is, who ought, in the opinion of the Court to which the application for revocation of probate is made, to have been cited.

It may be that on the materials placed before the Court which granted probate at the time when the application for the probate was made, the Court did not see any sufficient reason for issuing citations on particular persons, and yet it may be that upon fuller materials the Court finds reason to think that the applicant for revocation was a party who ought to have been cited. The present case is an illustration in point.

It appears clear on the evidence that the Petitioners, the minor sons of the alleged testator, had been living under the guardianship of Mr. Dias, one of the executors, who was the applicant for probate, and so it was clearly necessary that the minors should have been represented in the probate proceedings by some one appointed as guardian ad litem whose interests were nut adverse, as those of the applicant for probate were, to the interests of the minors. That matter now appears clear before us; and if for no other reason, for that one reason, we think that the minors, the sons of the testator, are persons who ought to have been cited before probate was granted, and the absence of citation upon whom is a reason for thinking that the proceedings for obtaining the grant of probate were defective within the meaning of the explanation to sec. 234. But even if illustration "b" were to bear the limited construction sought to be put upon it by the Respondents, I do not think that that would improve the Respondent''s position or affect our decision in this case. For in the present case the application is for revocation, not only of the probate granted to Mr. Dias, but also of the letters of administration with the Will annexed subsequently granted to Mrs. Lucas; and for the grant of those letters of administration, at any rate, on the Respondent''s own contention, citation on the next-of-kin was absolutely necessary. If that is so, and if the letters of administration granted to Mrs. Lucas are revoked, the Will of the late Francis Rebells will have to be proved in the presence of the Petitioners if fresh grant of letters of administration with the Will annexed is applied for.

Then, as regards the case of Nistarinee Debya v. Brahmamoye Debya I. L. R. 18 Cal. 45, one or two detached sentences in the judgment might apparently lend some support to the Respondent''s contention; but the real point decided in that case does not go to help the Respondents in any way. The facts of that case were very different from those of the present case. There what was found was this that though no special citation had been issued to the applicant for revocation of probate, still she was aware of the probate proceedings, and her paternal uncle opposed the grant of the probate apparently in his own name, yet really in the interests of the applicant for revocation of probate. And in that state of things what this Court held was, that the mere absence of special citation could not of itself be sufficient to entitle a party to require the Will to he proved in his presence if it has once been proved in solemn form and if he was aware of the proceedings. That is not the case here, and I do not think that that case can help the Respondents in any way.

It was last of all contended that having regard to the length of time that has elapsed since the giant of probate, we should presume that citations had been issued as required. Upon that point the materials before us do not enable us to say that any citation was issued to the present Petitioners, and under the circumstances to which I have already referred, viz, that the Petitioners, who were minors at the time, had been living under the guardianship of the applicant for probate and had no guardian ad litem appointed for them, they ought not to be held to have had sufficient notice even if, nominally, special citation had been issued to them. The issue of special citations could not have had any real effect considering the ages of the Petitioners at the time, one being ten and the other six years old unless a proper guardian ad litem had been appointed for them. For all these reasons I agree in the order of remand that has been made by the learned Chief Justice.