Case Note & Summary
The appeal arose from a consent order passed by a Single Judge of the Bombay High Court in a testamentary matter. The respondent had filed Testamentary Petition No.432 of 2000 seeking probate of the will of her deceased brother, who died in Texas. The will named the respondent as executor and sole beneficiary. The probate was granted by the court on 24 July 2000. Subsequently, the appellant, who was the brother of the deceased and the respondent, filed Miscellaneous Petition No.29 of 2001 for revocation of the probate. Evidence was led, and arguments were heard. Before the judgment could be delivered, the respondent, who was represented by counsel, sought leave to withdraw the probate petition and agreed to the probate being cancelled and the will declared null and void. The respondent also agreed to pay Rs.50,000 as compensation to the appellant. The Single Judge passed the consent order on 10 July 2003, revoking the probate, declaring the will null and void, and accepting the undertaking to pay compensation. The appellant challenged this order by filing the present appeal, alleging that the Single Judge had made adverse observations that forced him to consent to the order. The appellant also contended that the probate being a judgment in rem could not be revoked by mere consent of the executor. The Division Bench dismissed the appeal, holding that a litigant cannot consent to an order and later allege he was forced by the court, especially when represented by counsel and advised not to consent. Judges are entitled to express views during hearing, but until judgment is delivered, they can change their mind. If the appellant disagreed with the observations, the remedy was to argue against them or to await the judgment and file an appeal. On the issue of probate being a judgment in rem, the court held that while probate is conclusive of the validity of the will until revoked, it can be revoked in proceedings taken for that purpose. The miscellaneous petition for revocation was maintainable, and since the appellant was the executor and sole beneficiary, no third party interests were affected, making consent revocation permissible. However, as a matter of indulgence considering the appellant's age, the court modified the consent order by deleting the clause requiring payment of Rs.50,000 compensation. The appeal was dismissed with this modification.
Headnote
A) Civil Procedure - Consent Orders - Challenge to Consent Order - Code of Civil Procedure, 1908 - Allegation that consent order was obtained under judicial pressure is not a valid ground for appeal; a litigant represented by counsel who consents to an order despite contrary advice cannot later claim coercion. Held that it is not open to a litigant to consent and then allege force; if adverse views are expressed, the remedy is to argue or appeal after judgment (Paras 8-10). B) Succession Law - Probate and Administration - Revocation of Probate by Consent - Indian Succession Act, 1925, Section 263 - Where executor is the sole beneficiary, he can consent to revocation of probate; the in rem nature does not preclude consent when no third parties are affected. Revocation can be done in proceedings taken for that purpose, and the miscellaneous petition was maintainable. Held that the order revoking probate based on consent was valid (Paras 11-15). C) Contempt of Court - Undertaking - Compensation - Code of Civil Procedure, 1908 - Appellant undertook to pay Rs.50,000 as compensation; court modified the consent order by deleting this compensation clause as a matter of indulgence considering appellant's age. Held that appeal dismissed but compensation clause deleted (Para 17).
Issue of Consideration
Whether a consent order revoking a probate can be challenged on the ground that it was obtained under judicial pressure; Whether the appellant, as executor and sole beneficiary, could consent to revocation of probate which operates in rem
Final Decision
Appeal dismissed; the impugned order is modified only to the extent of deleting clause 3 which required the appellant to pay Rs.50,000/- as compensation.
Law Points
- Consent order cannot be challenged on ground of judicial pressure
- Probate is judgment in rem
- conclusive until revoked in revocation proceedings
- Executor and sole beneficiary can consent to revocation
- Allegations against judge for expressing views during hearing are unwarranted
