IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION SECOND SECOND SECOND APPEAL NO.357 OF 1990. APPEAL NO.357 OF 1990. APPEAL NO.357 OF 1990. 1. Ramchandra Baburao Apte, ) Age: 50 Yrs., Occ: Private Service, ) R/o.Khanbhag. ) 2. Shankar Baburao Apte, ) Age: 48 Yrs., Occ: Service, ) R/o.Bhuiraj Housing Society, ) Sangli. )...Appellants. Versus. Bhimrao Baburao Apte, ) Age: 40 Yrs., Occ: Service, ) R/o.C.S.No.1201, Khanbhag, Sangli. )...Respondent. --- Shri M.D.Angal for the Appellants. --- CORAM CORAM CORAM : ABHAY S.OKA, J. : ABHAY S.OKA, J. : ABHAY S.OKA, J. DATE DATE DATE ON WHICH SUBMISSION ON WHICH SUBMISSION ON WHICH SUBMISSION ARE ARE ARE HEARD. HEARD. HEARD. : 10th JANUARY, 2008. 10th JANUARY, 2008. 10th JANUARY, 2008. DATE DATE DATE ON WHICH JUDGMENT ON WHICH JUDGMENT ON WHICH JUDGMENT IS IS IS PRONOUNCED. PRONOUNCED. PRONOUNCED. : 05th MARCH, 2008. 05th MARCH, 2008. 05th MARCH, 2008. JUDGMENT: JUDGMENT: JUDGMENT: 1. The Second Appeal is by the original defendants. The respondent is the original plaintiff. According to the case of the respondent, the suit property was originally owned by one Baburao Laxman Apte. The appellants and the respondent are the sons of said Baburao. Baburao had six sons and two daughters. Baburao died on 03rd February, 1975. The respondent is relying upon the registered Will dated 13th January, 1975 allegedly executed by late Baburao. The respondent : 2 : 2 : 2 : had filed Misc. Civil Application No.69 of 1976 praying for grant of letters of administration on the basis of said Will. By order dated 15th June, 1980 the learned Civil Judge, Senior Division, Sangli declined to grant letters of administration on the ground that there was no property of deceased which was required to be administered. However, the learned Judge held that execution of Will has been established. The respondent filed a suit for possession of the suit property on the ground that under the said Will there is a bequest of the suit property made in his favour. 2. The appellants contested the suit by contending that as Misc. Civil Application No.69 of 1976 was dismissed, they had no opportunity to challenge the order passed on the said application. Their contention is that the respondent has taken undue advantage of mental and physical weakness of deceased Baburao and he got executed the Will from deceased Baburao. The contention of the appellants is that there are suspicious circumstances under which the alleged Will was executed and there was no free consent of the deceased Baburao. 3. The learned trial Judge held that the respondent has proved that he has become the exclusive owner of the suit property in view of the Will dated 13th January, : 3 : 3 : 3 : 1975 executed by the deceased Baburao. The trial Court held that the findings recorded in Misc. Civil Application No.69 of 1976 were binding on the appellants. It must be stated here that both the parties had filed a pursis in the trial Court stating that they were not desirous of leading the oral evidence. 4. An appeal was preferred by the present appellants. The District Court has dismissed the said appeal by holding that the issue regarding validity of the Will has been finally decided while deciding Misc. Civil Application No.69 of 1976 and therefore, the respondent has established the Will and he is entitled to inherit the property of deceased Baburao. The Second Appeal has been preferred against the judgments and decrees of the courts below. 5. The Second Appeal has been admitted by this Court on 21st November, 1990 by observing that grounds (a) and (b) raise substantial questions of law. Grounds (a) and (b) read thus: "(a) Whether the judgment in Misc Civil Application No.69/1976, passed by Civil Judge (S.D) Sangli, dismissing the application for letter of : 4 : 4 : 4 : administration operates as Resjudicata? (b) When the application for letters of administration was dismissed and so when the opponents therein could not challenge the findings by preferring the appeal, whether such findings can operate as Res judicata? 6. The submission of the learned advocate for the appellants is that as Misc. Civil Application No.69 of 1976 was dismissed, the appellants had no opportunity to challenge the said decision by preferring an appeal and therefore, the same will not operate as res judicata. He submitted that even section 41 of the Indian Evidence Act, 1872 will have no application in as much as there is no declaration of status granted by the decision in Misc. Civil Application No.69 of 1976. He submitted that if probate or letters of administration was granted by the Court in said application, the same would have been conclusive in view of section 41 of the Indian Evidence Act. He submitted that, however, in the present case the application for grant of letters of administration made by the respondent was dismissed and therefore, section 41 of the Indian Evidence Act will not apply. None appeared for the respondent. : 5 : 5 : 5 : 7. I have given careful consideration to the submissions made by the learned advocate for the appellants. It will be necessary to refer to the judgments of the courts below. The respondent claimed title to the property held by deceased Baburao on the basis of the Will dated 13th January, 1975 allegedly executed by the deceased Baburao. The execution of the Will has been disputed by the appellants. The respondent did not lead any evidence and placed reliance only on the decision in Misc. Civil Application No.69 of 1976. The learned trial Judge observed that in the said decision it was held that the respondent has proved the execution of the said Will by deceased Baburao. However, the letters of administration were not granted by the Court by holding that there was no property to be administered. Referring to the said decision the learned trial Judge in the impugned judgment has observed as under: "18. While given reasons to issue No.3, the learned Joint Civil Judge (S.D.) observed that there is no property for issuing the letters of administration in favour of the applicant. In fact, the applicant should have asked for the probate instead of letters of administration. Hence, the application will not be competent as there is no estate to be : 6 : 6 : 6 : administered and it seems to there is device for obtaining the decision of probate court on the question of the title in the guise of this application. Hence, he answered this issue in the negative and further observed that the application for letters of administration will have to be dismissed for want of propriety." 8. In paragraph No.19 of his judgment, the learned trial Judge referred to a decision in the case of J.R.Garda Vs. P.M.Mehta (1975 Bombay Law Reporter Page 884). The learned Judge considered the submission that the judgment in the said Misc. Civil Application operated in rem. In paragraph No.25 of the judgment, the learned trial Judge held that the said judgment in Misc. Application operated in rem and therefore, the same was conclusive. Therefore, the learned Judge came to the conclusion that the finding recorded in the said judgment regarding the proof of Will has become conclusive and thus accepted the case of the respondent as regards the proof of Will. 9. The Appellate Court has not specifically dealt with either the plea of res judicata or the plea that the said judgment was a judgment in rem. In paragraph No.5 of the judgment, the learned Judge observed as under: : 7 : 7 : 7 : "Under such circumstances, it is clear that the point with respect to validity of the Will in question is once and finally decided by the competent Court, hence it is not necessary to adduce the evidence again on the point of Will in the present proceeding". 10. In paragraph No.6 of the judgment, the learned Appellate Judge referred to the decision in the case of Venkateshwara Prabhu Vs. Krishna Prabhu (AIR 1977 SC Page 1268). In the said decision Apex Court held that the judgment of the Probate Court is a judgment in rem. 11. It will be necessary to refer to section 41 of the Indian Evidence Act which reads thus: "41. 41. 41. Relevancy Relevancy Relevancy of certain judgments in of certain judgments in of certain judgments in probate, probate, probate, etc., jurisdiction- etc., jurisdiction- etc., jurisdiction- A final judgment, order or decree of a competent Court, in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction which confers upon or takes away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing, not as against any specified person but absolutely, is : 8 : 8 : 8 : relevant when the existence of any such legal character, or the title of any such person to any such thing, is relevant. Such judgment, order or decree is conclusive proof- that any legal character which it confers accrued at the time when such judgment, order or decree came into operation; that any legal character, to which it declares any such person to be entitled, accrued to that person at the time when such judgment, [order or decree] declares it to have accrued to that person; that any legal character which it takes away from any such person ceased at the time from which such judgment, [order or decree] declared that it had ceased or should cease; and that anything to which it declares any person to be so entitled was the property of that person at the time from which such judgment, [order or decree] declares that : 9 : 9 : 9 : it had been or should be his property." 12. In case of R.Vishwanathan & Ors Vs. Rukn-ul-Mulk Sayed Abdul Wajid (AIR 1963 SC Page 1) the Apex Court considered the concept of judgment in rem. In paragraph No.17 of the said decision, the Apex Court observed that a proceeding in relation to a personal status is also treated as a proceeding in rem. The Apex Court observed that such a judgment is conclusive evidence for and against all persons whether they are the parties or strangers to the matter actually decided. These are the observations made in the majority judgment of the Apex Court. However, a dissenting view was recorded by M.Hidayatullah, J. In the dissenting judgment M.Hidayatullah, J observed that the conclusiveness from the point of view of the law of evidence will apply to a judgment only if it falls within the categories mentioned in section 41. 13. Perusal of section 41 shows that the same applies to a final judgment of a competent Court delivered in exercise of probate jurisdiction which confers upon or takes away from any person any legal character, or which declares any person to be entitled to any such character or to be entitled to any specific thing, not as against any specified person but absolutely, is relevant when the existence of any such : 10 : 10 : 10 : legal character or the title of any such person to any such thing is relevant. Such judgment is a conclusive proof of any legal character which it confers or any legal character to which it declares to have accrued to that person. 14. It must be stated here that for the applicability of section 41 of the Indian Evidence Act, the judgment must be delivered in exercise of probate, matrimonial, admiralty or insolvency jurisdiction and the judgment must be such which confers upon or takes away from any person any legal character or which declares any person to be entitled to any such character or to be entitled to any specific thing. Such judgment becomes relevant when the existence of any such legal character or the title of any such person to such thing is relevant. Such a judgment becomes conclusive proof of any legal character which it confers. It becomes conclusive proof of any legal character to which it declares any such person to be entitled. Such a judgment is conclusive proof of the fact that any legal character is taken away if such legal character is taken away by the judgment. 15. In this context, it will be necessary to refer to a decision of the Apex Court in the case of Chand Dhawan (Smt) Vs. Jawaharlal Dhawan [(1993) 3 Supreme : 11 : 11 : 11 : Court Cases Page 406). The issue which arose for consideration was whether a wife is entitled to permanent alimony under section 25 of the Hindu Marriage Act, 1955 in a case where a petition for divorce is disposed of without passing a decree of divorce. In paragraph No.24 of the said decision the Apex Court held thus: "24. Section 41 of the Evidence Act inter alia provides that a final judgment, order or decree of a competent court in the exercise of matrimonial jurisdiction, which confers upon or takes away from any person any legal character, or which declares any person to be entitled to such character, is relevant. And that such judgment, order or decree is conclusive proof as to the conferral, accrual, or taking away of such legal character from a point of time as declared by the court. Such judgments are known as judgments in rem, binding the whole world. But the judgment of But the judgment of But the judgment of that that that kind must have done something positive, kind must have done something positive, kind must have done something positive, onwards. onwards. onwards. This provision is indicative of the quality of matrimonial jurisdiction".(Emphasis supplied) The Apex Court proceeded to hold that unless there was a : 12 : 12 : 12 : decree of dissolution of marriage passed, wife is not entitled to alimony under section 25 of the said Act of 1955. 16. It will be necessary to refer to a decision of Full Bench of the erstwhile Nagpur High Court in the case of D.G.Sahasrabudhe Vs Kilachand Deochand & Co and others (AIR (34) 1947 Nagpur Page 161). The question which was referred to in the decision of the Full Bench was "When an act of insolvency which forms the basis of the order of adjudication consists of a certain transfer, can the transferee question the correctness of the order in the subsequent proceedings for annulment and contend that the transfer is good when he was not a party to the adjudication proceedings?" In paragraph No.7 of the majority judgment it is held thus: "The order of adjudication under that section is conclusive proof that any legal character which it confers or takes away accrued or ceased as stated in the order. It does not It does not It does not however, however, however, appear to me that the order is appear to me that the order is appear to me that the order is conclusive conclusive conclusive proof of anything more than that proof of anything more than that proof of anything more than that the the the insolvent has been so adjudged. It seems insolvent has been so adjudged. It seems insolvent has been so adjudged. It seems to to to me that a judgment in rem is conclusive me that a judgment in rem is conclusive me that a judgment in rem is conclusive only only only as regards status but not as regards the as regards status but not as regards the as regards status but not as regards the grounds grounds grounds on which the order is based. on which the order is based. on which the order is based. see : 13 : 13 : 13 : (1896) 65 L.J.Q.B.616, AIR 1928 Sind 121 and 54 Mad.601 and that therefore the order adjudging the debtor insolvent is inadmissible in evidence as between third parties to prove that the act on which the order was based was an act of insolvency".(Emphasis supplied) Another decision which is relevant is of a Special Bench of Madras High Court in the matter of P.C.Venkataramanayya Pantulu (AIR 1931 Madras Page 441). The Special Bench of the Madras High Court considered section 41 of the Indian Evidence Act. The Special Bench was of the view that the description "legal character" used in section 41 of the Evidence Act should receive a strict and limited construction. The Special Bench noted that the section 41 does not use the words "legal rights" but uses the words "legal character". The issue before the Special Bench was whether a finding of fact which is required to be recorded in a judgment for conferring legal character will operate in rem. The view taken by the Special Bench was that the finding will not bind third parties in subsequent proceedings. 17. In the present case, it must be stated that the application made by the respondent for grant of letters of administration was rejected though a finding was recorded that the Will was proved. The court held that : 14 : 14 : 14 : the respondent was not entitled to letters of administration. Thus, the said judgment has not conferred any legal character on the respondent. The said judgment does not declare that the respondent is entitled to the legal character sought by him. There is no positive thing done by the judgment in the said Misc. Civil Application for letters of administration. Thus, section 41 of the Indian Evidence Act will not apply to the said judgment. 18. Therefore, the finding recorded in Misc. Application filed by the respondent regarding proof of Will will not be conclusive as section 41 will have no application. As pointed out earlier, the decision in Misc. Application confers no legal character on the respondent and therefore necessary ingredients of section 41 are not satisfied. 19. The only other aspect which needs to be considered is whether principles of res judicata will apply. As pointed out earlier, the application for letters of administration was dismissed by the Probate Court. If letters of administration would have been granted, the respondent could have claimed right of inheritance on the basis of the letters of administration. It must be borne in mind that the respondent has not led any evidence in the present suit : 15 : 15 : 15 : to prove the Will. As held by the Apex Court in the case of Mrs Hem Nolini Judah (since deceased) through legal representative Mrs Marlean Wilkinson Vs. Mrs Isolyne Sarojbashini Bose & Ors (AIR 1962 SC Page 1471) questions of title are not decided in such testamentary proceedings. In paragraph No.8 of the said decision the Apex Court observed thus: "As we have already said questions of title are not decided in proceedings for grant of probate or letters of administration. Whatever therefore might have happened in those proceedings would not establish the title to the house either of the appellant or of Mrs. Mitter". Therefore, on the basis of the said judgment in Misc Application, the respondent cannot claim to have established the title to the property of the testator. 20. There is one more reason why the finding regarding proof of Will in the Misc. Application will not operate as res judicata. The application for grant of letters of administration was rejected. By the said decision there was no adverse decree or order passed against the appellants but there was an adverse finding recorded against the appellants. As held by the Privy : 16 : 16 : 16 : Council in the case of Midnapur Zamindari Company Ltd Vs. Neresh Narayan Roy (AIR 1922 Privy Council Page 214) a plea of res judicata cannot be founded upon such a decision because the opponent in the said decision had no occasion to go further in appeal against the adverse finding as there was no decree passed against him. The same view is reiterated by the Apex Court in the case of Most.Rev.P.M.A.Metropolitan and others Vs. Moran Mar Marthoma and another (AIR 1995 Supreme Court Page 2001). 21. Thus, the sum and substance of the aforesaid discussion is that the finding regarding proof of Will in the earlier decision is neither conclusive nor the same will operate as res judicata. In any event in testamentary proceedings issue of title to immovable property can never be decided. 22. In the present case apart from the said decision, no other evidence has been adduced by the respondent for proving the Will. In absence of any evidence led to prove the Will, the Courts below could not have accepted the case made out by the respondent of exclusive ownership. 23. Hence, appeal must succeed. The impugned judgments and decrees are quashed and set aside and Regular Civil Suit No.63 of 1985 filed by the : 17 : 17 : 17 : respondents stands dismissed with no orders as to costs. Judge. Judge. Judge.