O.V. Forbes Vs. V.G. Peterson - Court Judgment

Derbyshire, C.J.

1. This is an appeal from an order of Ameer Ali, J. dated 21st June 1940, whereby he stayed an application by Oswald Vernon Forbes made to this Court for the grant to him of probate of the will of his mother, Adelaide Elizabeth Forbes, and a codicil alleged to. have been made with reference to the will. The order was as follows:

The application is stayed sine die with liberty to bring it on upon notice to the other parties in the event of the probate granted by the Lucknow Court being hereafter revoked.

2. There was also an interim order restraining the. executor and executrix of the said will -- of which probate had been granted by the Oudh Chief Court at Lucknow -- from distributing the estate in such a manner that persons having rights under the codicil may be adversely affected. The interim order restraining distribution was stated to hold good until 1st July 1940. The facts leading up to this application are as follows : The deceased Adelaide Elizabeth Forbes was a widow, who died at Dehra Dun in the United Provinces whilst on her way to Mussoorie on 6th June 1939. She had resided for some time previous to her death at 'Dilkusha House', Lucknow, in the province of Oudh and had immovable property in the province of Oudh and moveable property consisting mainly of money and shares in companies. Altogether the property was stated to be valued at about ninelakhs of rupees, eight lakhs of this was situate in province of Oudh and about one lakh, consisting of money and shares in companies, was held by the deceased's banks or other agents in Calcutta. The deceased had three children, namely Oswald Vernon Forbes, the present applicant, Mrs. Violet Geraldine Peterson, a married daughter, and Mrs. Esme Earle, another married daughter. The deceased made a will on 23rd January 1938, whereby she devised and bequeathed one-third of her estate to the applicant Oswald Vernon Forbes, one-third of her estate to Mrs. Violet Geraldine Peterson, and the other one-third to her other daughter Mrs. Esme Earle for life with the remainder to her children. The applicant and Mrs. Peterson were named as executors in that will.

3. It is alleged that on 1st June 1939, that is five days before her death, the deceased executed a codicil to the said will whereby Mrs. Peterson was removed from the office of executor under the will and Mr. F.O. O'Neill a barrister substituted in her place. The codicil also purported to reduce Mrs. Peterson's share from one-third to one-sixth and increase the share of Oswald Vernon Forbes, the applicant, from one-third, to one-half. On 23rd June 1939, Mr. Stewart, an official of the Imperial Bank at Lucknow who was a witness to the will, swore an affidavit before the Commissioner of Affidavits, Chief Court of Oudh, verifying the will and stating that he saw the testatrix sign it. On 27th June 1939, Murli Dhar Raumiar and N.N. Shivpuri, who were witnesses to the codicil, swore affidavits before the Deputy Registrar of the Chief Court of Oudh stating that they saw the deceased sign the codicil. Wo are told that the will and codicil had both come into the hands of Oswald Forbes and that the codicil was 'produced' by him on 4th July 1939. On 11th July 1939, Mrs. Peterson applied to the Chief Court of Oudh at Lucknow for grant of probate of the will and on 12th July she asked for a summons against Oswald Forbes and Mr. O'Neill for production of the will and codicil. On the same date, namely 12th July, upon an application by Mrs. Peterson in the Oudh Court under Section 276, Succession Act, the following order was made:

Let citations issue to Messrs. O.V. Forbes and F.O. O'Neill, Munshi S. Aziz-un-Nabi and B. Shayama Charan. As it is said that the original will and codioil are in the possession of Mr. Forbes or Mr. O'Neill, it is ordered under Section 267(1), Succession Act, that these gentlemen be required to produce the said will and codicil. Let the citation to Mr. Forbes issue immediately.

4. The summons was served on Mr. O'Neill, who wrote on the back of it:

The two documents noted overleaf, viz., the will of Mrs. A. E. Forbes dated 23rd January 1938 and the codicil executed by Mrs. A. E. Forbes, dated 1st June 1939, were handed over to Mr. 0. V. Forbes many days ago for transmission to Calcutta and are not now in my possession....

5. On the back of summons was also written:

I regret that I am unable to produce either the will or the codicil noted overleaf as neither document is now in my possession.

Both documents are in Calcutta in connexion with my application for probate made in Calcutta.

O.V. Forbes, 17th July 1939.

6. On 25th July 1939, Mrs. Peterson applied at Lucknow for the case to be proceeded with and for the issue of citations on Oswald Forbes and Mr. O'Neill, and the Oudh Court ordered: 'Let citations issue as ordered before.' On 26th July, Mrs. Peterson filed a caveat in the Calcutta High Court. It should be noted that at that time no proceedings had been started in the Calcutta High Court in respect of the probate. On 3rd August, Oswald Forbes applied in the Calcutta High Court for grant of probate of the will and codicil; from a stamp on the face of the application it appears that it was handed in to the Court on 28th July. On 9th August Mrs. Peterson's attorneys filed an affidavit in the Calcutta High Court in support of the caveat. On 12th August, Mrs. Peterson took out a summons in the Calcutta High Court for stay of the High Court's proceedings in respect of the probate. On 23rd August, Oswald Forbes took out a summons to have the matter set down as a contentious cause and on 29th August 1939, the High Court set down the matter as a contentious cause. On 30th August 1939, Mrs. Peterson made an application before Panekridge J. in the Calcutta High Court to stay the Calcutta proceedings under Section 10, Civil P.C., and also on the ground that the application of Mr. Forbes for probate did not comply with the requirements of Section 279(1), Succession Act, in that it did not state that (to the best of his belief) no application had been made to any other Court for probate of the same will.

7. Panekridge J. dismissed the application for stay with the result that probate proceedings in the Calcutta High. Court went on. There were thus on 30th August two sets of proceedings for probate going on at the same time, namely (a) in the Oudh Court for probate of the will and (b) in the Calcutta High Court for probate of the will and codicil. On 26th September, Oswald Forbes signed a vakalatnama in favour of a Mr.Walford who is a barrister, practising in the Oudh Court. In that vakalatnama Oswald Forbe3 appointed Mr. Walford as his vakil in the Oudh Court probate proceedings and stated that as regards the acts done by Mr. Walford, 'all these when done and performed by him shall be acceptable or admissible to me as acts done by me personally.'

8. On the same date, namely 26th September, Mrs. Peterson made an application to the Oudh Court for the appointment of a receiver; this was opposed by Mr. Forbes and Mr. O'Neill who applied for a stay of the Oudh Court's proceedings under Section 10, Civil P.C. The Oudh Court made no order on the application for the appointment of a receiver but fixed an early date for the hearing of the probate proceedings. On 13th October in further proceedings at the Oudh Court Mr. Stewart, who had previously sworn an affidavit in support of the will, gave verbal evidence in Court stating that he witnessed the signature of the deceased on the will dated 23rd January 1938. Counsel for the caveator (Mr. O'Neill,); stated that he was not prepared to cross-examine the witness at that stage. On the same date, namely 13th October, Mr. O'Neill gave evidence in the Oudh Court stating that he signed a caveat dated 13th October 1939, in respect of the will and that he intended to oppose the application for probate and on that account had filed the caveat. He admitted the genuineness of the will but stated 'I propound the codicil in opposition to the will.' It must be noted that Mr. 0. V. Forbes has never been a formal party to the proceedings at the Oudh Court. On 18th October, the Oudh Court framed this issue--'Was the codicil dated 1st June 1939--propounded by the caveator--executed by Mrs. A. E. Forbes whilst of a sound disposing mind ?' On 20th November 1939, Mr. O'Neill signed a vakalatnama in favour of Mr. Walford and on the back of the vakalatnama was this endorsement:

All fees to be paid by Mr. 0. V. Forbes and not by me. I agree to this.F. Owen O'Neill. 0. V. Forbes.20th November 1939. 28th November 1939.

9. On 24th November, Mr. Walford applied to the Oudh Court for an adjournment to enable him to produce his evidence and the learned Judge appointed 30th November as the day for the hearing of the matter stating:

I shall be sitting alone on Thursday next, 30th November. The caveator must be ready with his evidence and the documents which he wishes to prove on that date. Mr. Walford draws my attention to the difficulty of getting the documents in question from the Calcutta High Court. The office will furnish Mr. Walford with any letter that he requires.

10. On 27th November 1939, Mr. Walford handed in a note to the Oudh Court stating that Mr. 0. V. Forbes had assured him that the money for procuring the attendance of witnesses from Calcutta would be sent to them. On 30th November, Mr. Walford applied to the Oudh Court for the attendance of the two witnesses to the codicil--Raumiar and Shivpuri. On 30th November 1939, Yorke J. of the Oudh Court granted probate of the will dated 23rd January 1938, to Mrs. Peterson 'with effect throughout British India' and in the course of his order he said:

As the caveator has failed to produce his evidence and there is no evidence before me which affords any support to the grounds for the refusal of grant of probate set forth in the caveat and affidavit, I must hold that the caveator has failed to satisfy the Court that the codicil said to be dated 1st June 1939, propounded by the caveator was executed by Mrs. A. E. Forbes while of a sound disposing mind. The caveator has in fact failed to prove the codicil at all, and there is nothing before the Court except the original will which it is common ground between the parties, was duly executed by the late Mrs. Forbes.

11. On 8th April 1940, there was an appeal to a Bench of the Chief Court of Oudh by Mr. O'Neill against the grant of probate of the will and that appeal was dismissed. In the course of the judgment the learned Judges said:

We may mention that on 13th October 1939, Mr. L. C. Bose, Superintendent, Testamentary Department, Calcutta High Court, brought the original will and codicil to this Court and Mr. O'Neill was present in Court and his statement was recorded on oath on that date. If he wanted to prove the codicil, it could have been detained.

12. On 30th April 1940, Mrs. Peterson applied to the Calcutta High Court for an order that the issue relating to the maintainability of the present suit in this Court in view of the proceedings and judgment of the Chief Court of Oudh be tried as a preliminary issue before any other issues are tried in the case. That application was opposed by Mr. Forbes who is the only person that has applied for the grant of probate of the will and oodicil in the Calcutta High Court and Ameer Ali J. made the order which is now appealed against. The present position is that probate of the will of Mrs. Forbes has been granted to Mrs. Peterson in the Oudh Chief Court by a Judge thereof and that grant has been confirmed by a Bench of that Court on appeal; Mr. O'Neill was a party to those proceedings and further was cited there and was present. He is clearly bound by the grant made by the Oudh Chief Court. Mr. O.V. Forbes was not a party to the Oudh Court proceedings, but was undoubtedly taking an interest in them as he was represented by his counsel and was financing Mr. O'Neill in his activities there. Moreover, he was cited like Mr. O'Neill and has acknowledged in an affidavit in these proceedings that he received the citations. We have not before us the citations to either Mr. Forbes or Mr. O'Neill, but one form of citation is mentioned in the Succession Act, viz., 'to come and see the proceedings before the grant of probate (Section 283, Sub-section (1)(c)).' The effect of the citation is set by Mookerjee and Beachcroft JJ. in Dwijendra Nath v. Goloke Nath ('15) 2 A.I.R. 1915 Cal. 393 at p. 749:

It need not be disputed that if a party is cognizant of the proceedings for probate or letters of administration and chooses to stand by and allow the proceedings to be concluded in his absence, he will not be allowed to come in afterwards and have the grant revoked or the proceedings reopened.

13. Both Mr. Forbes and Mr. O'Neill will have to face that doctrine if they go again to the Oudh Chief Court and ask for a grant of probate in respect of the will and the codicil; but the consequence of their application to that Court I leave to that Court if such an application is made. The question is; should Mr. Forbes under the citation as related above be allowed to make a similar application to this Court 1 If this Court should go further with the present application and it is decided in Mr. Forbes' favour it would mean that a grant of probate of the will and the codicil might be made to Mr. Forbes. There would then be probate in the Oudh Court of the will in favour of Mrs. Peterson and probate in this Court of the will and codicil to Mr. Forbes : in that event Mrs. Peterson could not safely execute the testatrix's will as authorized by the Oudh Court, nor could Mr. Forbes as authorized by this Court; so that the testatrix's will whether expressed in the will alone or in the will read with the codicil might never be executed. That would frustrate the testatrix's intention; it would be an absurd position. Mr. Forbes says that whatever the consequences, he is in law entitled to go on, since, the deceased left property in the jurisdiction of this Court1 and we have under Section 270, Succession Act, jurisdiction to grant probate, and that we must hear and determine this application for grant of probate, whether it results in an impasse or a conflict between this Court and the Chief Court of Oudh. I am satisfied that the Oudh Chief Court is a High Court within the meaning of Section 273, Succession Act, (see the General Clauses Act, 1897, Section 3(24), and the Oudh Courts Act, 1925) and had jurisdiction to grant probate of this will 'with effect throughout British India.' That grant can in my view only he revoked or annulled by the Oudh Chief Court or the Privy Council, and until so revoked or annulled it stands good. I also think that since part of the property of the deceased is lying in Calcutta, the Calcutta High. Court would have jurisdiction in a proper case to make a grant of probate of a testamentary document left by the deceased--see Section 270, Succession Act. Whether we are bound to exercise such jurisdiction in this case is another matter.

14. Section 271, Succession Act, provides that:

When the application is made to the Judge of a district in which the deceased had no fixed abode at the time of his death, it shall be in the discretion of the Judge to refuse the application, if in his judgment it could be disposed of more justly or conveniently in another district....

15. This Court has at least the discretion given by the Act to the Judge of a district. The deceased (testatrix resided at Lucknow in the Oudh Province. It has never been suggested that she lived at any time in Calcutta. It is contended that Panckridge J. on 30th August 1939, exercised his discretion in this application and permitted it to go on, and that it must go on. What Panckridge J. did was to exercise his discretion on the facts as they existed on 30th August. At that time both sets of proceedings--those in the Oudh Court and those in the Calcutta High Court -- were proceedings and nothing had been finally determined in either. I cannot agree that this Court is deprived of its discretion under Section 271 because Panckridge J. exercised it on 30th August 1939, so as to permit the Calcutta proceedings to go on. In my view that discretion is exercisable by the Court whenever the Court is placed in the position of having to decide what order is to be made upon the application for probate of the will and codicil. Certainly no Judge jwould exercise it to the contrary effect whilst the facts remained the same. When Ameer Ali J. heard 'the application now in question the Oudh Chief Court had granted probate of the will to Mrs. Peterson and an appellate bench of that Court had confirmed the grant after giving Mr. Forbes full opportunity to see and hear the proceedings and propound the codicil--which he failed to do. I am not sure that Mr. Forbes after his citation and consequent behaviour in the Oudh Chief Court is not estopped in this Court from proceeding further; but I will deal with the matter on broader grounds. At present there is every prospect of a conflict between the Oudh Court, which is indubitably seised of the matter, and this Court.

16. In Jopson v. James (1908) 77 L.J.Ch. 824 at pp. 828, 829 there were simultaneous proceedings in the Supreme Court of Nova Scotia and in the Chancery Court of the Palatine of Lancashire for the winding up of a partnership arranged in England to work mines in Nova Scotia. The Palatine Court restrained the plaintiff in the Nova Scotia proceedings from prosecuting those proceedings and that plaintiff appealed to the Court of Appeal in England against that injunction. The Court of Appeal dissolved the injunction and in doing so discussed the comity of Courts in such circumstances. Farwell L.J. at pp. 828 and 829 said:

The existence of concurrent jurisdiction render very necessary the observance of a comity between those jurisdictions the disregard of which would lead to most unfortunate friction. Two points appear to me to be usual in considering whether the Court should have regard and defer to a jurisdiction with which it may come into conflict or whether the Court can fairly expect that other jurisdiction to defer to it. One is priority in time, and the other is the extent of the relief asked for or obtainable in the other jurisdiction.

17. Kennedy L.J. said at p. 829:

In my opinion it is very important for the public weal to avoid, wherever it is possible to avoid, any real, and even any apparent conflict of jurisdiction between two equally competent tribunals.

18. And later--

In this case, apart from the inconvenience, I myself attach great value to a perfect exercise of comity in these matters...and speaking with great respect, I regret that the Vice Chancellor thought it right to allow any proceedings to go on in his own Court, and more than that at a certain stage to grant an injunction against the plaintiff in the Colonial Court, to restrain him from pursuing that which was the more natural and at least equally convenient Court.

19. In the present proceedings the Oudh Chief Court was the more natural and more convenient Court. The deceased never lived in Calcutta but lived and died in the jurisdiction of the Oudh Court; all her immovable property and 8/9ths of her moveable property was in that Court's jurisdiction; the other 1/9th was in Calcutta but could be transferred from Calcutta to Lucknow with very little effort and trouble. Again the Oudh Court proceedings were the first to be started and they have been finally determined as far as it was possible to determine them finally without Mr. Forbes' assistance which he deliberately withheld. By Section 2(b), Succession Act, a 'codicil' is 'an instrument made in relation to a will, and explaining, altering or adding to its dispositions and shall be deemed to form part of the will.' Probate of this will has been granted by the Oudh Court. In the goods of Miller (1883) 8 P. D. 167 gir james Hannen, the President of the Probate Court in England, dismissed an application to prove in London the codicil to a will made in Antigua by a lady who had a house in Antigua and one in England in these words:

It is the practice of this Court to require that codicils must be proved in the Court from which the probate of the will has been obtained. I must therefore refuse this motion, and leave the applicant to obtain probate of the codicil at Antigua.

20. This decision may not bind this Court which has to administer probate matters in accordance with the provisions of the Indian Statute law, but it is a good guide. Mr. Forbes could have obtained all the relief he was entitled to in the Oudh Court, but deliberately neglected to pursue his claim there. He may so far as this Court is concerned again apply to the Oudh Court: whether he is successful is a matter for the Oudh Court. I am satisfied that Ameer Ali J., exercising the discretion which he has under the Succession Act, and also exercising his right to observe the comity of Courts, was correct in making the order appealed from. This appeal must be dismissed with costs against Mr. O. V. Forbes personally. Certified fpr two counsel.

Panckridge, J.

21. I concur in the decree to be made dismissing the appeal. In my opinion the learned Judge would have been fully entitled to answer the issue : 'Are these proceedings barred by res judicata or principles analogous thereto ?' in the affirmative, and thereupon to dismiss the petition for probate of the will and codicil. Indeed I think this would have been the more logical course, in view of the opinion expressed by him that the probate granted by the Chief Court was unrevoked, and, as far as the appellant was concerned, was unrevocable. When it is sought to justify some more than usually astonishing proposition with regard to the probate law of India, the observations of Sir Arthur Wilson in Kurrutulain Bahadur v. Nuzbat-ud-Dowla Abbas Hossein Khan ('06) 33 Cal. 116 at page 129 repeated in Mt. Ramanandi Kuer v. Mt. Kalawati Kuer ('28) 15 A.I.R. 1928 P.C. 2 at page 223, are relied on. But when I asked Mr. S. M. Bose for the appellant whether he contended that in view of the latter case the statement of the law in Dwijendra Nath v. Goloke Nath ('15) 2 A.I.R. 1915 Cal. 393 at p. 749 must be considered as incorrect, he replied that such was not his contention. In that case the Court stated:

It need not be disputed that if a party is cognizant of the proceedings for probate or letters of administration and chooses to stand by and allow the proceedings to be concluded in his absence he will not be allowed to come in afterwards and have the grant revoked or the proceedings re-opened. This principle has been repeatedly recognized in this Court.

22. The learned Judges also expressed the opinion that this is in accord with the rule followed in England. I see no reason to doubt that in a case like the present one, when the situation is not complicated by the existence of an infant or of a pardanashin beneficiary, the law in India is substantially the same on this point as in England. The latter is thus summarized in Tristram and Coote's Probate Practice, Edn. 18, p. 397:

With these exceptions (the existence of a later will and fraud), probate in solemn form cannot be impeached by any person who has been a party to the action whether as plaintiff, defendant, intervener, or party cited, or who has been privy thereto. And it is to be observed that a person having an interest need not be a party to a probate action to be bound by its result. If he was cognizant of it and. was content to stand aside while others contested the action, he is precluded from re-opening the case.

23. Further, although I should hold that the Chief Court of Oudh is a High Court for the purposes of the Succession Act, and that 'civil proceedings' in Section 3(24), General Clauses Act, 1897, is used in contradistinction to criminal proceedings, and includes testamentary proceedings, yet even if the Chief Court of Oudh be not a High Court, and if accordingly the grant of the Chief Court is not covered by the proviso to Section 273, in my opinion, the grant of probate made by it is, until revoked or annulled, conclusive proof, certainly as against those cited if not against all the world, that the grantee has established his title as' executor of the deceased's last will and testament.

24. Where the Court granting the probate is not a High Court, the grant is not effective with respect to assets beyond the limits of the province in which the Court is situated; but this only means that with regard to the other assets the grantee must apply to the appropriate Court for a grant of letters of administration with the will annexed, to which in my opinion he has an indisputable right. It can never have been the intention of the Legislature to sanction a system so productive of inconvenience and embarrassment as one under which competent grants are possible.