Chintaman Vyankatrao Ghadge vs Ramchandra Vyankatrao Ghadge

N.G. Chandavarkar, Kt., J.—This appeal was filed at first in the form of an application for leave to appeal in forma pauper is, from the decree passed on the 19th of February 1908, by the Subordinate Judge, First Class, at Satara, in Civil Suit No. 354 of 1907. The application, presented on the 13th April 1908, was beyond time, having been made more than thirty days after the period prescribed by the Limitation Act, and the appellant, a minor, by his guardian prayed that the delay might be excused. The application for the excusing of delay came on for ex parte hearing before a Division Court on the 2nd of October 1908 and it was allowed. But it having been brought to the Court''s notice that it had no jurisdiction to excuse delay, it cancelled the order on that ground on the 20th of November 1908. An appeal against that order, presented under the Letters Patent, was allowed on the ground that, the applicant being a minor, Section 7 of the Limitation Act of 1877, Applied and the case was governed by the principle of the Privy Council ruling in (1876) L.R. 3 I.A. 7 (Privy Council) . Leave to appeal in forma pauperis was also granted.

Mr. Kelkar, appearing for the respondents, argues that an application for permission to appeal in forma pauperis, must be treated as an appeal, and that, if it is so treated, Section 5, and not Section 7 of the Limitation Act, must apply here. Whether we treat the application as falling u/s 5 or u/s 7, the result is the same. If it falls u/s 5 and is an appeal, as contended by Mr. Kelkar, then, under the second paragraph of that section, which applies to appeals, the Court has jurisdiction to excuse delay.

If, on the other hand, it is treated as an application and falls u/s 7 of the Limitation Act, it is clearly within time and there is no need of excusing delay, because the section provides that a minor can apply even after he has attained the age of majority but within a period prescribed.

Dealing with the appeal on the merits, the suit was brought to recover possession on the ground that the plaintiff was the adopted son of one Vyankatrao. The defendant resisted the claim upon the ground that Vyankatrao had left the property to him by a will; that he had proved the will and obtained pro. bate. Issues were raised involving the question of title and of res judicata.

The Subordinate Judge has disposed of the case only on the ground of res judicata. He has held the claim barred, because, in his opinion, the grant of probate concludes the parties as to title. That is clearly an error in law. The probate " is only conclusive as to the appointment of executors and the validity and the contents of the will: Williams on Executors, page 452, (4th Edition): and on the application for probate it is not the province of the Court to go into the question of title with reference to the property of which the will purports to dispose, or the validity of such disposition " : Hormusji Navroji v. Bai Dhanbaiji Jamsetji Dosabhai ILR (1887) 12 Bom. 164. See also Barot Purshotam Kalu v. Bai Muli ILR (1893) 18 Bom. 749. As the suit was wrongly disposed of on a preliminary point, we reverse the decree and remand the case for disposal on the merits according to law.

All costs, including those of the Court fees of this pauper appeal, in which Government are interested, must be costs in the cause.