Judgement

Appeal from a judgment and decree of the High Court (April 19, 1910) reversing a judgment and decree of the Subordinate Judge of Mozufferpur (December 21, 1907).

Under circumstances which are fully stated in the judgment of their Lordships the appellants instituted a suit in the Court of the Subordinate Judge of Mozufferpur against the first respondent, to whom probate of the will of one Bachu Singh had been granted by the District Judge of Mozufferpur under the Probate and Administration Act (V. of 1881), and against the two widows of Bachu Singh. The appellants by their plaint alleged that the will was a forgery, and prayed for a declaration that they were next reversioners to the estate upon the deaths of the widows, and that they were, as such, entitled to apply to the Court having probate jurisdiction for revocation of the probate. The appellants had opposed the grant of probate, claiming to be next reversioners, but the District Judge had held that they were not next reversioners and had no locus standi; this decision and the grant of probate were affirmed upon appeal to the High Court.

Ramnandan Singh, by his written statement in the present suit, again denied that the appellants were the next reversioners ; he pleaded further that that question was res judicata under s. 13 of the Code of Civil Procedure, 1882, and that the suit for a declaratory decree was not maintainable having regard to s. 42 of the Specific Relief Act, 1877.

The Subordinate Judge held that the suit was maintainable, and that there was no estoppel under s. 13 of the Code of Civil Procedure, 1882. In his opinion the proceeding under the Probate and Administration Act, 1881, was not a suit within the meaning of that section, and the question whether the appellants were the next reversioners was not directly or substantially in issue therein. Upon the facts he found that the appellants were the next reversioners and that Ramnandan Singh was not, as he claimed to be, the adopted son of the deceased. He accordingly made a declaration that the appellants were the next reversionary heirs to the estate of the deceased.

On appeal to the High Court the decision of the Subordinate Judge was reversed and the suit dismissed. The learned judges (Caspersz and Chatterjee JJ.) agreed with the findings of the Subordinate Judge that the plaintiffs were the next reversioners and that the first respondent was not the adopted son of Bachu Singh. They were of opinion that the plaintiffs, as next reversioners, had not merely a contingent interest, but a present interest, which, apart from the question of res judicata, rendered them competent to maintain the suit under s. 42 of the Specific Relief Act, 1877. They held, however, that the decision of the District Judge, affirmed by the High Court, raised an estoppel by res judicata under s. 13 of the Code of Civil Procedure. In any case the declaration prayed for would probably be infructuous, as the District Judge, having granted probate, would be entitled to hold that there was no just cause for revocation under s. 50 of the Probate and Administration Act, 1881. The appeal is reported, 11 Calc. L. J. 623.

1916. Feb. 21, 22, 23, 24. De Gruyther, K.C., and Sir W. Garth, for the appellants. Both Courts in India held that the suit was maintainable under s. 42 of the Specific Relief Act, 1877. It was within the discretion of the Subordinate Judge under that section to make the declaration. There was no estoppel under s. 13 of the Code of Civil Procedure, 1882. The proceeding before the District Judge under the Probate and Administration Act, 1881, was not a suit within the meaning of that section Mirza Kurratulain v. Nawab Nazhat-ud-dowla. (( 1905) L. R. 32 Ind. Ap. 244.) If a contentious matter under the above Act is a suit, ss. 53, 55, 83,"and 86 of the Act are unnecessary. The object of the proceeding was to provide a representative of the estate; the question of the appellants title was not directly or substantiall