Does the doctrine of res judicata apply in probate proceedings? Give reasons and also refer to case law, if any, on the point.  

Question: Does the doctrine of res judicata apply in probate proceedings? Give reasons and also refer to case law, if any, on the point.

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Answer

Probate is defined under the Indian Succession Act, 1925 as – “A copy of will certified under the seal of the court of competent jurisdiction with a grant of administration of the estate of the testator”.

The person who makes a will expresses his wishes to be executed after his death by certain persons named in the will. The persons named in the will to execute it are called its executors.

In the case of Kalyanchand Lalchand v. Sitabai Dhanasa (1914) 16 BOMLR 5, the court observed that Under the Probate and Administration Act, a grant is final and conclusive under Section 59 there is no corresponding section making the refusal to grant final and conclusive. As to res judicata, probate proceedings are a suit within the ordinary meaning of the term “suit.”

Even supposing they are not a suit within the meaning of Section 11 of the Civil Procedure Code, still if the section does not apply totidem verbis, the principle underlying the section does apply.

There is no definition of the word ‘ suit’ either in the Civil Procedure Code or in the General Clauses Act, and we are of opinion that as contentious probate proceedings must take the form of a suit, they constitute a suit within the meaning of Section 11 of the Civil Procedure Code.

Hence, in view of the above-referred decision, it can be easily established that the doctrine of res judicata applies to ‘Probate Proceedings’ also.

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