A civil court's decision on the proof of a will is not res judicata in probate proceedings.

CHAGLA, C.J.:- (His Lordship after narrating the facts of the case and matters not material for the purpose of reporting proceeded). But it is not sufficient to dispose of this matter on this ground because there is another important aspect of the matter which has been agitated at the bar and to which in our opinion it is necessary to make a reference.

Even if the appeal was competent, in our opinion it would have been futile for this Court to hear this appeal and go into the merits of the matter when probate proceedings have been launched and are actually pending before the Probate Court. Mr. Mehervaid says that we should decide the merits of the appeal because the decision given by the learned Judge on the various issues raised before him would become res judicata as between his client and the respondents in the probate proceedings.

In our opinion, it is clear that a decision as to the proof of the will given by any civil Court can under no circumstance operate as res judicata in probate proceedings taken out in the Probate Court. In a civil suit the Court is only concerned with deciding the rights between the parties. In a Probate Court the position is entirely different.

The Probate Court is a Court of conscience and it does not decide rights between parties but it has to deliver a judgment which would become a judgment in rem and this judgment will bind not only the parties before it but the whole world. Therefore, the approach of a Probate Court to the question before it is different from the approach of a civil Court adjudicating upon the rights between the parties, and this position is made clear by the provisions of S.41, Evidence Act.

It is only 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 relevant when the existence of any such legal character, or the title of any such person to any such thing, is relevant, and such judgment, order or decree has been made conclusive proof with regard to the legal character which it declares.

Therefore, a judgment in rem, which is the judgment with which S.41 deals, is a judgment passed by a Court as the exclusive Court dealing with probate matters. A civil Court dealing with the same question, deciding the same issue, cannot pass a judgment which would bind the world and would constitute a judgment in rem. Therefore, even though the civil Court here has decided a question as to the proof of the will and the codicil and although it has held that the will and the codicil have been proved, even so its judgment will have no binding effect as a judgment in rem. From this it must follow that this decision cannot operate as res judicata and cannot bind the Probate Court. The Probate Court must apply its own mind and must satisfy its own conscience that the will or the codicil put forward as the last will or codicil of the deceased is his last will and codicil. It must be satisfied as to the execution of the document, it must be satisfied as to the testamentary capacity of the deceased, and that satisfaction cannot be influenced or affected by any decision given by any civil Court although the issue raised was identical.

Therefore, any apprehension on the part of Mr. Mehervaid that by our refusing to hear this appeal he will be confronted in the Probate Court with the decision given by the learned Judge is entirely imaginary. We wish to make it clear - and Mr. Seervai does not contest the position - that in the probate proceedings which are pending the question will have to be agitated without any reference to the decision given by the learned Judge in this suit.

2. Perhaps a reference might be made to a decision which was referred to by Mr. Seervai and that is the decisio