No probate can be granted with regard to joint family property

In the case of Smt. Radhika Devi and Another Vs. Ajay Kumar Sharma and Others [ (2011) 1 PLJR 845 : (2010) 66 RCR(Civil) 445 PATNA HIGH COURT]and submitted that no probate can be granted with regard to joint family property. From perusal of the aforesaid decision, it appears that in that case, a partition suit was pending between the father and sons and their mother. There was dispute between the father mother and sons about as to which of the property is self-acquired property of father and which are their ancestral property. In such circumstances, it was found that in the list all the joint family properties were mentioned and application was filed for the grant of probate. The property of the testator was yet to be decided in the partition suit and in the probate application, all the properties which were the subject matter of partition suit were included.

In the case of Addagada Raghavamma and Another Vs. Addagada Chenchamma and Another[AIR 1964 SC 136 : (1964) 2 SCR 933], the Hon’ble Apex Court has held that Will could not be executed with respect to undivided share of the joint family property.

What is Probate proceeding?

Whether a person was incapable of executing a will by reason of any physical and / or mental incapacity is certainly a relevant point and, in fact, the most relevant point which is to be decided in Probate/Letters of Administration proceeding and in this case also I would deal with this aspect later in this judgment. As regards the use of the words “his property?, it is clear and, if I may say so, implicit that a person can execute a will, like any transfer deed, only with respect of his own property and not someone else’s property and, therefore, nothing much turns on use of those words in Section 59 as to confer jurisdiction on the probate Court to decide any dispute relating to title, ownership etc. of the testator/testatrix in the property which is the subject matter of the will. It is settled legal position that it is not the duty of the probate Court to consider any issue as to title of the testator to the property with which the will propounded purports to deal or to the disposing power the testator may have possessed over such property or as to the validity of the bequeaths made. See, for example, the case of Kashi Nath Singh Vs. Dulhin Gulzari Kuer, Proceeding for grant of probate or letters of administration is not suit in the real sense, it only takes the “form” of a regular suit according to the provisions of the Code of Civil Procedure”as early as may be” vide Section 295 of the Act. Reference may be made to a Division Bench decision of this Court in Sidhnath Bharti (Objector) Vs. Jai Narayan Bharti a Full Bench decision of the Allahabad High Court in Mrs. Panzy Fernandas Vs. Mrs. M.F. Queoros and Others, and a Division Bench decision of the Calcutta High Court in Balai Lall Banerjee and Others Vs. Debaki Kumar Ganguly and Others, The grant of probate or letters of administration is decisive only of the will propounded and not of the title etc. of the testator to the property. As the issues relating to title, ownership etc. are not to be gone into in such proceeding, it follows that even a favourable decision in favour of the Petitioner/Plaintiff granting probate or letters of administration in his favour does not operate as res judicata in any future suit which the Objector is at liberty to bring seeking declaration of his right, title, interest etc. in the property.

  • In this connection, reference may be made to the case of Ishwardeo Ishwardeo Narain Singh Vs. Sm. Kamta Devi and Others[AIR 1954 SC 280], wherein it was held that “the Court of Probate is only concerned with the questions as to whether the document put forward as the last will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution the testator had sound disposing mind. The question whether a particular bequeath is good or bad is not within the purview of the Probate Court”. Thus whether a particular property had gone in favour of the beneficiaries on bequeathing is a matter to be decided by the Civil Court. The Probate Court is not in a position to decide that fact and as such the said objection raised from the side of the Appellants-Defendants had not been considered by the Probate Court rightly.

What is the legal position in the matter of proof of Wills

It is well established and it stands reiterated by the Apex Court in Bharpur Singh and Ors. vs. Shamsher Singh (2009) 3 SCC 687 and the suspicious circumstances, which are likely to surround the execution of a Will, highlighted are as under:-

(i) The signature of the testator may be very shaky and doubtful or not appear to be his usual signature.

(ii) The condition of the testator’s mind may be very feeble and debilitated at the relevant time.

(iii) The disposition may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provisions for the natural heirs without any reason.

(iv) The dispositions may not appear to be the result of the testator’s free will and mind.

(v) The propounder takes a prominent part in the execution of the Will.

(vi) The testator used to sign blank papers.

(vii) The Will did not see the light of the day for long.

(viii) Incorrect recitals of essential facts.

The circumstances narrated hereinbefore are not exhaustive.

It is an established rule of law that the propounder of the Will has to prove its due execution, as provided under Section 63 of the Indian Succession Act, 1925.

Obtaining of probate is not a condition precedent for filing a suit, though the executor is not entitled to recover the decree without producing the probate.

Calcutta High Court  in Prabhat Nath Das v. Ramendra Kumar Saha, ILR 61 1081[division Bench]

 Division Bench of this Court held as follows:

‘……..The grant of a probate is not a condition precedent to the institution of the suit by the executor. See Chandra Kishore Roy v. Prasanna Kumari Dasi (1). There cannot be any doubt that the appellant had right to institute the present suit as executor before he obtained the probate. Whether as executor he would be entitled to recover the decree or to maintain the same passed by the trial Court without producing the probate is an entirely different matter. It is well established on authorities that he will be entitled to get a decree, if he produces the probate before the passing of the final decree…..’ [Calcutta High Court in Sibaji Mitra Vs. Smt. Prakashwati Chopra and anr. (2004)2CALLT555(HC) decided on Mar-11-2004 , clarified the matter .]

Yash Vardhan Mall Vs. Tejash Doshi [SC 2017 November]

Keywords : will-Calcutta High court rule

Capture

The existence of a caveatable interest would depend upon the fact situation of each case.

DATE : November 23, 2017.

SUPREME COURT OF INDIA

Yash Vardhan Mall Vs. Tejash Doshi

[Civil Appeal Nos.19635-19636 of 2017 arising out of S.L.P. (Civil) Nos.28643-28644 of 2017]

L. NAGESWARA RAO, J.

1. Leave granted.

A Will was executed by Smt. Shrutika Doshi on 01.03.2013 by which she appointed her husband, the sole Respondent herein, as the executor and trustee. Her minor daughters were made the beneficiaries. It was mentioned in the Will that in case the Respondent is unable to carry out or act as the sole executor by giving effect to the Will and testament, the Appellant shall become the sole executor.

The Will dated 01.03.2013 was registered with the Sub-Registrar of Assurance at Calcutta on 25.05.2013. Smt. Shrutika Doshi died on 26.05.2013. Another Will executed by Smt. Shrutika Doshi on 22.04.2013 surfaced wherein the Respondent was appointed as the sole executor and in case he is unable to act as the sole executor his father would replace him. As the Respondent did not apply for grant of probate of the Will dated 01.03.2013 for two and half years, the Appellant applied for a probate of the Will.

Thereafter, the Respondent filed P.L.A. No.123 of 2016 for grant of probate of the Will dated 22.04.2013 before the High Court at Calcutta. The Appellant filed a caveat on 15.06.2016 and on receipt of a notice of the filing of the P.L.A. No.123 of 2016, the Appellant filed an affidavit in support of the caveat on 10.01.2017. The Respondent filed an application G.A. No.888 of 2017 in P.L.A. No.123 of 2016 for discharge of the Appellant’s caveat.

2. The petition filed by the Appellant for grant of probate of the Will dated 01.03.2013 was dismissed by the District Judge, Alipore on 17.04.2017. An appeal has been filed against the said order which is pending in the High Court at Calcutta.

3. A learned Single Judge of the High Court at Calcutta heard G.A. No.888 of 2017 in P.L.A. No.123 of 2016 for discharge of caveat. By an order dated 28.06.2017, the learned Single Judge allowed the application filed by the Respondent and discharged the caveat. The appeal filed against the said order dated 28.06.2017 was disposed of by a Division Bench of the High Court holding that there was no reason to interfere with the order of the learned Single Judge, though the Appellant had a caveatable interest. Aggrieved thereby the Appellant has approached this Court.

4. The learned Single Judge referred to Chapter XXXV of the The Rules of The High Court At Calcutta (Original Side), 1914 (hereinafter referred to as the ‘Rules’) to hold that the affidavit filed in accordance with Rule 26 thereof did not disclose legal grounds of objection to the grant of probate. The learned Single Judge further held that the Appellant did not have caveatable interest and discharged the caveat. The Division Bench held that an executor of a previous Will cannot be denied a right to lodge a caveat in respect of a subsequent Will of the same testator.

Even if the executor is not a legatee under the Will, his obligation is to obtain a probate of the Will and to administer the estate in accordance with the terms of the Will. As the execution of the Will dated 01.03.2013 was not disputed by the Respondent, the Division Bench held that the Appellant has sufficient interest in the estate and was entitled to lodge a caveat by virtue of his position as a trustee in respect of the trust created by the first Will. Having held that the Appellant has a right to object to the grant of probate of the Will dated 22.04.2017, the Division Bench refused to interfere with the order of the learned Single Judge for the reason that the affidavit filed in support of the caveat did not disclose any ground to doubt the due execution of the Will dated 22.04.2013.

5. The Rules relevant for the purpose of adjudication of the dispute in this case are as follows:

“24. Caveat. – Any person intending to oppose the issuing of a grant of probate or letters of administration must either personally or by his Advocate acting on the Original Side file a caveat in the Registry in Form No.12. Notice of the filing of the caveat shall be given by the Registrar to the petitioner or his Advocate acting on the Original Side. (Form No.13).

“25. Affidavit in support of caveat.- Where a caveat is entered after an application has been made for a grant of probate or letters of administration with or without the will annexed, the affidavit or affidavits in support shall be filed within eight days of the caveat being lodged, notwithstanding the long vacation. Such affidavit shall state the right and interest of caveator, and the grounds of the objections to the application.”

“30. Trial of preliminary issue.- The Court may, on the application of the petitioner by summons to the caveator before making the order mentioned in Rule 28, direct the trial of an issue as to the caveator’s interest. Whereupon the trial of such issue, if it appears that the caveator has no interest, the Court shall order the caveat to be discharged, and may order the issue of probate or letters of administration, as the case may be.”

6. An affidavit filed in support of the caveat according to Rule 25 shall state the right and interest of the caveator and 5 the grounds of the objections to the application. The affidavit filed in support of the caveat by the Appellant mentions that Smt.Shrutika Doshi executed her last Will and testament on 01.03.2013 which was registered on 22.05.2013. There is a reference to the Will dated 22.04.2013 alleged to have been executed by Smt.Shrutika Doshi as her last Will and testament. It was further mentioned in the affidavit that the Will dated 01.03.2013 being registered on 22.05.2013 has to be treated as the last Will and testament of Smt.Shrutika Doshi. The Appellant did not doubt the execution of the Will dated 22.04.2013, but asserted that the Will dated 01.03.2013 which was registered on 22.05.2013 was her last Will.

7. After holding that the Appellant has a caveatable interest to object to the grant of probate of the Will dated 22.04.2013, the High Court refused to interfere with the order of the learned Single Judge on the basis that the affidavit filed in support of the caveat did not doubt the execution of the Will. As per Rule 25, the right and interest of the caveator and the grounds for objection to the application have to be mentioned in the affidavit filed in support of the caveat. The right and interest of the 6 caveator as the executor of rival Will dated 01.03.2013 have been mentioned in the affidavit filed in support of the caveat and the High Court rightly upheld the contention on behalf of the Appellant that he has caveatable interest. The grounds for objection to the application for grant of probate have also been mentioned in the affidavit.

On a detailed scrutiny of the affidavit filed in support of the caveat, we are satisfied that the Division Bench went wrong in not permitting the Appellant to contest the proceeding of probate of the Will dated 22.04.2013, especially after holding that he has a caveatable interest. It is relevant to mention that the petition filed by the Appellant for grant of probate of the Will dated 01.03.2013 was rejected by the District Judge, Alipore on the ground that the application for probate of the Will dated 22.04.2013 was pending and that the Appellant had lodged a caveat in that proceeding. It was further held in the said order passed by the District Judge on 17.04.2017 that the Appellant will have sufficient opportunity to prove his allegations against the Respondent in the said proceeding.

8. This Court in Krishna Kumar Birla v. Rajendra Singh Lodha and Ors. (2008) 4 SCC p.300 considered the point of caveatable interest in a detailed manner and held that no hard and fast rule can be laid down. The existence of a caveatable interest would depend upon the fact situation of each case. In the instant case, the High Court found that the Appellant has caveatable interest, but the caveat filed by the Appellant was discharged on the ground that the affidavit filed in support thereof was bereft of an averment doubting the due execution of the Will dated 22.04.2013. For the reasons stated supra, we are satisfied that the affidavit filed in support of the caveat fulfils the condition of Rule 25.

9. The appeals are allowed and the judgment passed by the Division Bench of the High Court is set aside. No order as to costs.

 [ARUN MISHRA]

 [L. NAGESWARA RAO]

Anil Behari Ghosh Vs Smt. Latika Bala Dassi and others

15-04-1955

Supreme Court-min


AIR 1955 SC 566 : (1955) 2 SCR 270

(SUPREME COURT OF INDIA)

Anil Behari Ghosh Appellant
Versus
Smt. Latika Bala Dassi and others Respondent

(Before : Vivian Bose, B. Jagannadhadas And B. P. Sinha, JJ.)

Civil Appeal No. 106 of 1953, Decided on : 15-04-1955.

Succession Act, 1925—Section 70—revocation of Will—Proof of—Intention to revoke the Will is not sufficient to seek revocation of probate.

Counsel for the Parties:

Mr. P. N. Sen, Senior Advocate, (Mr. A. K. Dutt and Mr. S. Ghose, Advocates, with him), for Appellant

Mr. M. C. Setalvad, Attorney-General for India, (Mr. A. N, Sinha, Advocate, with him) and ‘Mr. D. N. Mukherji, Advocate, for Respondent Nos. 1 and 2 respectively.

Judgment

Sinha, JThis is an appeal against the judgment and order dated 4-9-1951 of the Calcutta High Court in its appellate jurisdiction reversing those dated 29-8-1950 of a Judge of that Court sitting on the Original Side granting the appellant’s prayer for revoking and annulling the probate granted in respect of the last will and testament dated 29-7-1912 of one Binod Lal Ghosh, deceased, whom we shall call the testator in the course of this judgment.

2. The testator is said to have executed a will on 29-7-1912 which was registered on the same date at the Calcutta registry office. By the said will the testator appointed the following five persons as executors or executrices:

1. Anil Nath Basu, Attorney-at-Law

2. Brindaban Chandra Mitter (These two also figure as attesting witnesses to the will).

3. His adopted son Charu Chandra Ghose (whom we shall call Charu for the sake of brevity) a minor on his attaining majority.

4. His wife Haimabati Dasi, and

5. His brother’s widow Muktakesi Dasi.

He also directed that on the death of the said Anil Nath Basu, his son Achintya Nath Basu, and on the death of Brindaban Chandra Mitter, his son Debi Prosad Mitter will take their places respectively as executors; and on the death of his wife Haimabati Dasi, Charu’s wife Latikabala Dasi, and on the death of Muktakesi. Dasi, his nephew’s wife Sushamabala Dasi will take her place respectively as executrix. It is not necessary to set out in detail the legacies created by the will except to state that he created annuities in favour of a number of persons including his wife, his brothers widow Muktakesi Dasi, his daughter-in-law, his niece-in-law aforesaid and Charu.

He also made provision in his will for annual payments in respect of the expenses of certain deifies and festivals, as also for the funeral expenses of himself and the annuitants aforesaid. He directed his executors to accumulate ` 12,000/- a year out of the balance left after meeting the annuities and the other annual expenses aforesaid to be paid over to Charu upon the death of the said Latikabala Dasi and Sushama Bala Dasi who were to share the residue, if any, after paying the annuities and other outgoings referred to above. It would thus appear that though the testator intended Charu to be the owner of his entire estate including the accumulations after meeting the annuities and the other annual expenses, he did not trust him to the extent of putting that estate into his hands immediately on his attaining majority. He trusted Charu’s wife and the other ladies in his family more than Charu himself, though he specifically stated in the will-

“Provided always that the said adopted son shall be deemed to have a vested interest in the said estate immediately on my death.”

He appointed his wife Haimabati Dasi as the guardian of the parson and property of Charu and of his wife Latikabala Dasi aforesaid.

3. On 5-3-1920 the testator is said to have been murdered by Charu who was placed on his trial, convicted for murder and sentenced to transportation for life. Charu served his term of imprisonment and was released from jail some time in 1933.

4. On 30-9-1921 an application for probate of the will aforesaid was made on the Original Side of the Calcutta High Court on behalf of Anil Nath, Muktakesi Dasi and Latikabala Dasi aforesaid. The application stated that the testator died on 5-3-1920 at Baranagar, leaving him surviving his adopted son Charu and his widow Haimabati Dasi. The will dated 29-7l912 was recited and the five persons named above were said to have been appointed executors and executrices of the will. It also stated that Brindaban Chandra Mitter, one of the executors named in the will, had died in July 1913 and his son Debi Prosad Mitter was a minor.

It also recited the death of Haimabati Dasi on 22-5-1921, thus explaining why out of the five executors and executrices named in the will the application had been made only on behalf of the surviving three persons. The assets of the testator’s estate were stated not to exceed a sum of ` 4,75,780 /-. The prayer was

“that probate of the said will may be granted to your petitioners limited without the Province of Bengal reserving power of making the like grant to the said charu Chandra Ghose and the said Debi Prosad Mitter (when he comes of age) when they will come and pray for the same”.

The grant was made the same day (i.e., 30-9-1921)which fell during the long Vacation and the Judge in charge passed the order -”Order as prayed” no citations being issued. ‘ This is material in view of what has been ) alleged subsequently about this grant, as will presently appear.

5. Nothing was heard about these proceedings until 24.7.1933 when ‘ an application was made by Debi Prosad Mitter aforesaid for the grant of probate to him along with Anil Nath Basu and Latikabala Dasi. In that application, the previous grant of probate dated 30-91921, the death of Muktakesi Dasi some time in October 1932 and the fact of his attaining majority some time in January 1924 are recited. On 16-9-1933 Debi Prosad Mitter’s application was granted.

6. It appears that Latikabala Dasi and Sushamabala Dasi applied to the Calcutta High Court on 4-12-1933 for an order for discharging the executors appointed previously and for a direction to hand over the entire estate of the testator to the applicants. In answer to the summons Debi Prosad Mitter made an affidavit on 7-12-1933 in which he recited the previous grants of the probate made in 1921 and 1933; and stated that the testator Binod Lal Ghosh was murdered on 5-3-1920 by Charu and that on the death of Haimabati in May 1921, the testator’s. first cousin Girish Chandra Ghosh became entitled to the residue of the estate of the testator. In that affidavit he set out the genea logical table of the family of the testator showing how Girish Chandra Ghosh was related to the deceased.

He also made pointed reference to the fact that -the surviving grantees of the probate, Anil Nath Basu and Latikabala Dasi, after the death of Haimabati had not filed any account of the testator’s estate in their capacity as executor and executrix respectively and that on his obtaining probate of the will those persons had not complied with his request of furnishing a statement of accounts about their dealings with the testator’s estate. He also set out the text of the letter sent by his solicitor to Anil Nath Basu and Latikabala Dasi. The letter is dated 4-12-1933.

7. It does not appear from the record as to what attitude had been taken by the executor and the executrix aforesaid in answer to the call made by Debi Prosad Mitter for submission of accounts of their dealings with the testator’s estate after the grant of probate in 1921 as aforesaid. Ultimately, on 16-5-1934 the High Court dismissed the application for discharging the persons who had been granted the probate. Girish Chandra Ghosh aforesaid died in December 1940 without having taken any steps in Court claiming his rights, whatever they were, in the testator’s estate. Anil Nath Basu also died in July 1948. He does not appear from the record to have rendered any accounts in respect of his dealings as the managing executor of the will of the deceased,

8. it was not until 17-9-1949 that the appellant, who is one of the four sons of the said Girish Chandra Ghosh, made an application to the Calcutta High Court on the Original Side praying that the probates dated 30-9-1921 and 16-9-1933 in respect of the will dated 29-7-1912 be revoked, annulled and/or set aside and that an administrator ‘pendente lite’ be appointed. The petition runs into about twenty printed pages setting out the petitioner’s relationship with the testator, the will and the grant of the probates as aforesaid, the murder of the testator by Charu, his trial, conviction and sentence for that murder. It was also averred that the testator had “intended to revoke his said will of 29-7-1912.” Then follows a long recital of facts tending to that conclusion. Then follows para, 19 which is in these terms:

“From the said correspondence and papers it is absolutely clear that the said testator revoked his will of 29-7-1912. Your petitioner submits that arrangements were being made for handing over the estate of the said Binod Lal Ghosh, deceased, in the hands of the Administrator General of Bengal for the purpose of charity but the said purpose did not mature and under the circumstances your petitioner submits that the said will of 29-7-1912 has been revoked by the said testator and no further will was executed in its place or stead.”

Paragraph 23 is a statement of the grounds on which the case for revocation of the grants is founded. That paragraph is in these terms:

“Your petitioner submits that the probates herein should be revoked as a just cause for doing so exists ‘inter alia’, on the following grounds:

(a) That no notice of either application for probate was served on your petitioner’s father, although he was the nearest male relative alive at the time when the said Binod Lal Ghosh was murdered;

(b) That the grants were obtained fraudulently;

(c) That the grants were obtained by means of an untrue allegation of a fact essential to justify the grant.

(d) That the grants were obtained by making a false declaration that the property was valued only at ` 4,75,780/-, although the High Court in its Criminal-Jurisdiction had stated in 1920 that the estate of the said Binod Lal- Ghosh was over ` 40,00,000;

(e) That the grants in any event, are useless and inoperative;

(f) That there was no filing of accounts;

(g) That the grants were issued by concealing the facts of the intention of the said testator to revoke the will; .

(h) That the deceased never lived within the Ordinary Original Civil Jurisdiction of this Hon’ble Court”.

9. The application was opposed by LatikaBala Dasi chiefly on the ground that no citation to Girish Chandra Ghosh was necessary, that in any event, he was cognisant of the probate proceedings and of the estate being administered by the executors and that he stood by. It was denied by her that the said Girish Chandra Ghosh was the nearest male relative of the testator or that Charu had murdered his adoptive father. It was also denied that the testator had revoked his will and that he died intestate as a result of which the petitioner and his, three brothers became entitled to succeed to his estate. Achintya Nath Basu took similar grounds in opposition to the application for revocation. Debi Prosad Mitter by an affidavit of his own denied that there had been any just cause for revoking the probate but added that he had been discharged on his own application from further acting as one of the executors of the testator’s will.

10. Though no issues were framed, the main grounds for revocation or annulment of the probates were as stated in para. 23 set out above. P. B. Mukherjee J. who dealt with the case on the Original Side, after an elaborate consideration of the facts and circumstances of the case, passed orders revoking and annulling the grants aforesaid and directing “that the will be proved in solemn form on notice to the applicant and the other sons of Girish and also after a general citation to all persons interested in the estate”. He also appointed the applicant, the appellant before us, as an administrator ‘pendente lite’ with usual powers to take charge of the estate, with costs to the applicant to be paid out of the estate. He directed the other opponents-respondents to bear their own costs.

On the points in controversy he came to the conclusion that Girish was related to the testator as a cousin, that there was no acquiescence on the part of Girish barring the appellant from pursuing his remedy, that the non-citation of Girish was by itself not sufficient to invalidate the grant, but that circumstance in conjunction with other facts, viz., of material concealment of the fact that Charu had murdered the testator and that the testator had entertained an intention to revoke the will, though it had not actually been revoked, was sufficient ground for revoking the grant. He held further, on the authority of the decision in -’Mokashadayini Dassi vs. Karnadhur Mandal’, AIR 1915 Cal 421 (A) that the question whether the will had as a matter of fact been revoked would form the subject-matter for final determination after the revocation of the grants when fresh proceedings will be taken after due citation.

He also held that in the circumstances of this case, though there was no averment of wilful default in exhibiting an inventory and accounts of the testator’s estate, the executors were actually guilty of such a default and there was thus just cause for revoking the grant, He did not hold the other grounds of attack against the grant made out by the applicant; that is to say, he did not find it established that the estate was worth over ` 40,00,000/and that the declaration of the value of the testator’s estate at ` 4,75,780/. was false or fraudulent or that the grant had become useless or inoperative otherwise, or that the case could not be heard by the Calcutta High Court, on the Original Side.

11. On appeal by Latikabala Dasi, the Appellate Bench consisting of Sir Trevor Harries C. J. and Banerjee J., allowed the appeal and dismissed the application for revocation. of the probate with costs of both the courts, They held that the will in question was genuine and valid in view of the evidence and of the fact that its genuineness or validity had not been questioned specifically in the pleadings, They also held that there was no revocation of the will or even an intention on the pad at the testator to revoke the will. They also held that Girish was entitled to citation but that the non-citation did not materially affect the grant of the probate and that at any rate, Girish being fully aware of the grant stood by, and therefore acquiesced in the grant, and did not take any steps at the right time to question the grant. They therefore did not think it just and expedient to reopen the proceedings When they were satisfied that there was no real and substantial attack against the genuineness and validity of the will use.

12. In this appeal it has been argued on behalf of the appellant on the authority of the decision in AIR 1915 Cal 421 (A) that the Appeal Court should have agreed with the Judge on the Original Side in holding that there was material concealment of facts which considered along with the admitted position that no citation had been taken against Girish Chadra Ghosh had vitiated the proceedings for the grant of probate and that the question of the genuineness or validity of the will should have been left over for determination on at a letter stage of the proceedings. It was also argued that the omission to exhibit the accounts was in the circumstances of this case wilful default without reasonable cause within the meaning of the law and was sufficient by itself so entitle the applicant to a revocation.

It was also argued that no grounds had been made out in fact to support the legal conclusion drawn by the Appeal Court that there had been an acquiescence on the part of Girish. On behalf of respondent 1 the conclusion of the Appeal Bench has been supported on all the grounds. On behalf of the respondent Debi Prasad Mitter, it was contended that he had been unnecessarily impleaded at all the stages and that he should have been granted his costs out of the estate of the deceased.

13. The grant of probate was made under the provisions of the probate and Administration Act (5 of 1881); but the Indian Succession Act (39 of 1925) consolidated the law relating to intestate and testamentary succession and thus incorporated the other Acts relating to the same subject, including Act 5 of 1881. In order to be entitled to a revocation or annulment of the grant aforesaid the appellant has to bring his case within the purview of S. 263, Indian Succession Act (39 of 1925), which will hereinafter be referred to as the Act. Section 263 of the Act is substantially in the same terms as S. 50 of Act 5 of 1881, Section 263 provides that “The grant of probate or letters of administration may be revoked or annulled for just cause”, Under the Explanation-

“Just cause shall be deemed to exist where-

(a) the proceedings to obtain the grant were defective in substance, or

(b) the grant was obtained fraudulently by making a false suggestion, or by concealing from the Court something material to the case, or

(c) the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant, though such allegation was made in ignorance or inadvertently, or

(d) the grant has become useless and inoperative through circumstances, or

(e) the person to whom the grant was made has wilfully and without reasonable cause omitted to exhibit an inventory or account in accordance with the provisions of Chap. VII of this Part, or has exhibited under that Chapter an inventory or account which is untrue in a material respect”.

After the explanation, there are eight illustrations of the grounds on which a grant of probate may be revoked, of which the first three are material. They are as follows:

“(i) The Court by which the grant was made had no jurisdiction.

(ii) The grant was made without citing parties who ought to have been cited.

(iii) The will of which probate was obtained was forged or revoked.”

14. In this case the appellant tried to take advantage of the first illustration also, by suggesting in one of the grounds set out in para. 23 of his petition quoted above that the testator never lived within the Ordinary Original Civil Jurisdiction of the Calcutta High Court in exercise of which the grant in question had been made. But that ground was negatived by the trial Judge and as it was not pressed before us, no more need be said about it.

15. It was vehemently argued at all stages of the case including the appeal before us that admittedly no citation was issued against Girish Chandra Ghosh aforesaid and as he was the person most interested in the testator’s estate besides the legatees named in the will, the case came directly within the purview of cl. (a) of the Explanation and Illustration (ii) quoted above. Girish Chandra Ghosh has been found by the Judge in the first instance to have been the person most vitally interested in the estate of the testator, whether he died intestate or leaving a will, in the events which had happened.

The learned counsel for the contesting respondent suggested that it had not been found by the lower Appellate Court as a fact upon the evidence adduced in this case, that Girish was the nearest agnate of the testator or that Charu had murdered his adoptive father, though these matters had been assumed as facts. The Courts below have referred to good and reliable evidence in support of the finding that Girish was the nearest reversioner to the estate of the testator. If the will is a valid and genuine will, there is intestacy in respect of the interest created in favour of Charu, if he was the murderer of the testator. On this question the Courts below have assumed on the basis of the judgment of conviction and sentence passed by the High Court in the sessions trial that Charu was the murderer. Though that judgment is relevant only to show that there was such a trial resulting in the conviction and sentence of Charu to transportation for life, it is not evidence of the fact that Charu was the murderer. That question has to be decided on evidence.

However, for purposes of this case we shall assume in favour of the appellant that Charu was the murderer. The result of such an assumption is that Girish being the nearest reversioner to the estate of the testator, in case of intestacy after the death of the testator’s widow in 1921 or in case of testamentary succession after the death of the two legatees, the testator’s daughter-in – law and the nephew’s wife aforesaid, and the failure of the legacy in favour of Charu on account of the murder would, in either event, have sufficient interest in the estate of the testator to entitle him to challenge the grant and to obtain revocation.

But it is noteworthy that Girish who died in 1940, lived for about 19 years after the grant and took no steps in that direction. There may be some doubt as to Girish’s knowledge of the probate proceedings and of the grant until 1933; but, in our opinion, there is ample evidence in support of the finding arrived at by the Court of Appeal below that Girish was aware of the grant at the latest in 1933 when Debi Prosad Mitter took proceedings, to obtain a grant in his own favour also. In his application, as indicated above, he clearly stated that Charu was the murderer of his adoptive father and that Girish would succeed to his estate, which otherwise would have gone to Charu.

If Girish had initiated proceedings for revocation of the grant and had insisted on the will being proved in his presence, the Courts would have had no difficulty in having all the necessary evidence before it because the chief person who had played the most leading part in the execution of the will, in its registration and in its being admitted to probate, viz, Anil Nath Basu, was then alive and could have been examined. But for reasons not made clear in these proceedings Girish did not think it worth his while to take any steps in Court to challenge the will or the grant, The estate was worth anything between five to forty lakhs, perhaps nearer five lakhs than forty lakhs. Girish was a mere pensioner belonging to a middle class family. Either he did not think it worth his while to embark on a litigation with all its uncertainties or he had not the wherewithal to do so. The record as it stands does not satisfactorily explain the reasons why Girish refrained from making any attempts to set this large estate.

If the will was not genuine or valid, Girish would take the reversionary estate at once because the testator’s widow died in 1921 and there was no other impediment in his way, except to get rid of the will. If, on the other hand, the will was genuine and valid, even then he would stand to gain all the interest which had been bequeathed in favour of Charu. The fact that Girish did not take advantage of his position as the nearest reversioner as on partial intestacy goes a long way to support the great probability of the will being valid and genuine, especially as it had been probated and because the appellant in his long petition for revoking the grant has not made the least suggestion casting any doubt on the genuineness and ‘validity of the will.

But it was argued on behalf of the appellant that that stage had not yet arrived and oat it would be open to the appellant after obtaining an order of revocation of the grant to show that the will was either not genuine or had not been validly executed. Great reliance was placed in this connection on the judgment of a Division Bench of the Calcutta High Court in ‘AIR 1915 Cal 421 (A)’, where the following observations have been made:

“No question of the genuineness of the will arises for consideration till the Court has decided that the probate must be revoked on one or more of the grounds specified in S. 50, probate and Administration Act. The only matter for consideration at this stage is, whether the appellants have made out a just cause for revocation of the probate which was granted without notice to them:- ‘Brirdaban vs. Sureshwar’, 10 Cal LJ 263. The question of genuineness cannot be considered till a case for revocation is made out:-’Durgagati vs. Sourabini’, 33 Cal 1001 (C)”.

The observations relied upon by the appellant were made with reference to the facts of that case and were not intended to be of universal application. As pointed out above, S. 263 of the Act also contemplates a case for revocation based on the single ground that the will in respect of which the grant in question was obtained was a forged one. In such a case, whether or not the will was a forged one would be the only question to be canvassed before the Court before the order of revocation could be made.

16. It was further argued on behalf of the appellant that the appeal should be allowed and the grant revoked on the simple ground, apart from any other considerations, that there had been no citation issued to Girish. In our opinion, this proposition also is much too widely stated. S. 263 of the Act veils a judicial discretion in the Court to revoke or annul a grant for just cause. The explanation has indicated the circumstances in which the Court can come to the conclusion that “just cause” had been made out. In this connection the appellant relied upon Cl. (a) quoted above which requires that the proceedings resulting in the grant sought to be revoked should have been “defective in substance”.

We are not inclined to hold that they were “defective in substance”. “Defective in substance” must mean that the defect was of such a character as to substantially affect the regularity and correctness of the previous proceedings. If there were any suggestions in the present proceedings or any circumstances were pointed out to show that if Girish had been cited he would have been able to enter ‘a caveat, the absence of citation would have ‘rendered those proceedings “defective it substance’. It may be that Girish having been found to have been the next reversioner to the testator’s estate in case of intestacy and on the assumption that Charu had murdered the testator, Girish might have been entitled to a revocation of the grant if he had moved shortly after the grant of the probate on the simple ground that no citation had been issued to him.

The omission to issue citations to persons who should have been apprised of the probate proceedings may well be in a normal case a ground by itself for revocation of the grant But this is not as absolute right irrespective of other considerations arising from the proved facts of a case. The law has vested a. judicial discretion in the Court to revoke a grant where the Court may have ‘prima facie’ reasons to believe that it was necessary to have the will proved afresh in the presence of interested parties. But in the present case we are not’ satisfied in all the circumstances of the case that just cause within the meaning of S. 263 had been made out. We cannot ignore the facts that about 27 years had elapsed after the grant of probate in 1921, that Girish in spite of the knowledge of the grant at the latest in 1933 did not fake any steps in his lifetime to have the grant revoked, that there was no suggestion that the will was a forgery or was otherwise invalid and that the will was a registered one and had been executed eight years before the testator’s unnatural death. Hence the omission of citations to Girish which ordinarily may have been ‘sufficient for a revocation of the grant was not in the special circumstances of this case sufficient to justify the Court to revoke the grant.

17. Learned counsel for the appellant made pointed reference to the decision of their Lordships of the Judicial Committee of the Privy Council in – ‘Ramanandi Kuer vs. Kalawati Kuer’, AIR 1928 PC 2 (D). But that case is an authority for the proposition that where two grounds are taken for revocation of a grant viz., (1) that persons who ought to have been cited were not cited, and (2) that the will was a forgery, if the first ground is established, the onus is upon the opponents to prove that the will is genuine. That case is no authority for the proposition that. in every case where there is a defect in citation, the Court must order a revocation or annulment of the grant

The annulment is a matter of substance and not of mere form. The Court may refuse to grant annulment in cases where there is no likelihood of proof being offered that the will admitted to probate was either not genuine or had not been validly executed. But, as rightly pointed out by the lower appellate Court, in the present case where the validity or genuineness of the will has not been challenged, it would serve no useful purpose to revoke the grant and to make the parties go through the mere formality of proving the will over again. In our opinion, therefore, the omission of citation has had no effect on the regularity of the proceedings resulting in the grant of 1921.

18. It was next contended that there had been fraudulent concealment of material facts from the Court in the proceedings of 1921, and that therefore the case came within the purview of Cl. (b) of the Explanation quoted above. It was said in this connection that the petition for the grant of probate made in 1921 did not disclose the following material facts:

1. That Charu was the murderer of the testator;

2. That the testator had revoked the will or had at least intended to revoke the will; and

3. That a false declaration as regards the value of the property constituting the estate of the deceased testator had been made, that is to say, the applicants for probate had concealed from the Court the true value of the property which was forty lakhs of rupees and not only ` 4,75,780/- as stated by them.

It is true that in para. 4 of the petition for probate it was only stated that Charu had been found guilty of murder by the High Court and was sentenced to transportation for life and had not till then been released for jail. Our attention was also called to the prayer portion of the petition in which the right of Chant to make an application for probate had been reserved. We can easily dispose of the last suggestion by observing that it was a mere formal reservation. It has no such sinister significance as is attributed to it. It is also true that there is no statement in the application that Charu had murdered the testator. While agreeing with the Judge in the first Court that this was rather disingenuous, we must also hold that that concealment, if it was deliberate, was not material to the case. Even if that statement had been made in the petition, that would have had no effect on the grant of probate to the petitioners who were before the Court. The fact of the murder is relevant only to this extent, that it would affect the legacies in favour of Charu, but the other legacies would stand and the will would still be open to probate.

19. The last allegation relating to concealment is on the question of the value of the property left by the testator by his will. It is not necessary to consider whether if such a concealment had been made out it would have been sufficient to revoke the grant. It is enough to point out that neither of the Courts below has found that the property was really worth anything like forty lakhs of rupees. This ground has not been pressed before us either. it must therefore be held that the appellant has failed to bring his case within the rule of material concealment.

20. The most serious allegation which could have a determining effect on the grant, if made out, is that the testator had revoked the will. Such an allegation would directly come within the third illustration quoted above. But unfortunately for the appellant he made no attempt to prove his allegation that there was any such revocation. Apart from showing that in or about the year 1917 the testater had entertained the intention either of materially altering his will or of altogether revoking it, there is absolutely no evidence in support of the allegation that the testator actually revoked the registered will in question. For proving that the will had been revoked, it had to be shown that the testator had made another will or codicil or by some writing declared his intention to revoke the will.

Such a document is required by S. 70 of the Act to be executed in the same manner as a will. Such a revocation could also have been proved, as the section lays down, by burning, tearing or otherwise destroying the will by the testator himself or by some other person in his presence and by his direction, thus clearly indicating his intention of revoking the will. No such proof has been offered in this case. But it was argued that the appellant would have offered such proof after the order of revocation was made by the Court. That, would be to put the cart before the horse. If an applicant for revocation of a grant alleges as a ground for such revocation that the testator had revoked the will, he has got to prove that alleged fact at least ‘prima facie’ before he can be entitled to an order of revocation. There may be cases where such a proof may be offered at a later stage where the revocation is founded upon other grounds, for example, where the Court is satisfied that there was substantial defect in the previous proceedings resulting in the grant, or that the grantee had wilfully and without reasonable cause omitted to exhibit an inventory or account; or some such other ground recognized by S. 263 as just cause for annulling the grant has been established.

It was also argued on behalf of the appellant that even though he may not have proved that the testator had as a matter of fact revoked the will he is still entitled to an order of revocation on the ground that he had entertained the intention of revoking the will. No authority had been cited before us in support of this contention. It is open to a person who has made a will at any time to alter or to revoke it; but if he had died leaving a registered will and has not taken any tangible steps to revoke such a will, it is not enough to allege that the testator had it one time entertained the intention of doing so, because such an intention without being translated into action has no effect on the will actually left by him which must be treated as the last will and testament.

21. It remains to consider the last point, viz, whether the case is within Cl. (e) of the explanation to S. 263. In this connection ground (f) in para. 23 of the petition quoted above is the only allegation. The omission to submit accounts is not always aynonymous with “wilfully and “without reasonable cause” omitting to exhibit accounts. In certain circumstances omission to submit accounts may bring the case within the purview of Cl. (e) aforesaid because the circumstances may tend show that the omission was wilful and without reasonable cause. We have therefore to consider whether in the circumstances of this case the omission to file accounts has the effect of entitling the appellant to an order of revocation. Under the will the testator intended that Anil Nath Basu should function as the managing executor during his lifetime, as will appear from the relevant portion of para 17 the will which is as follows:

“I direct that my executor Babu Anil Nath Basu shall act alone without interference of my other executor in drawing money from or depositing money to any bank, Courts or any other place or places and also in drawing interest of Government Promissory Note, debentures, etc. and in collecting rents of the houses and also in defending and instituting all suits relating to my estate and for the purpose above to sign cheques, rent bills and all papers relating to any suit in connection with my estate”.

It would thus appear that Anil Nath Basu was not only the most competent man being a trained lawyer to administer the estate but had also been in terms vested with the power to handle the cash and the accounts by him self without interference by the other executors. He must therefore have handled the incoming and the outgoings and, been responsible for keeping true an proper accounts. Whether or not he did so we do not know, because Girish, as already Indicated, never made any attempt to question the will or the grant or to him to account. We have already made reference to Debi Prosad Mitter’s correspondence with Anil Nath Basu, the managing executor, bearing on the question of accounts.

There is nothing on the record to show what happened on trial demand for amounts by Debi Prosad Mitter. The managing executor was alive up till July 1948 and unfortunately for the appellant, he initiated the revocation proceedings more than a year after his death. If these proceedings had been started in Anil Nath Basu’s lifetime, he would have been the best potion to inform the Court as to how matters stood with reference to the accounts The fact remains that no accounts appear from the record of this case to have been submitted by the executors. An application was made before us to take notice of the fact that accounts had been submitted up to date by respondent 1 who is incharge of the testator estate. But whether or not the respondent bit and filed accounts during the pendency of this appeal is wholly irrelevant.

We have to determine whether the omission to submit accounts in the circumstances of this case entitles the appellant to have an order of revocation. In the first place, no proper pleading had been made on this part of the case. It has not been alleged that there has been a wilful default without any reasonable cause. Hence no proper foundation was laid in the pleadings for reception of evidence either way. On that ground alone, in our opinion, the appellant must fail on this part of the case.

It may also be pointed out that in all the circumstances of this case referred to above. particularly in view of the fact that it was never suggested that the will in question was not genuine or had not been validly executed it must be held that the proceedings leading up to this appeal have been misconceived. If the appellant has any ‘locus standi’, his remedy lay not against the will or against the grant of probate, but under the will. But it is not for this Court to advise what the appellant should have done.

22. As, in our opinion, all the grounds raised on behalf of the appellant for revoking, the grant have failed, it is not, necessary to go into the question whether Girish had acquiesced in the grant in question and had therefore barred the door against the appellant from raising any further questions about it.

23. For the reasons aforesaid we uphold the decision of the Court below and dismiss the appeal with costs to the contesting respondent 1. There will be no order as to costs in respect of the other respondent.

 

Mrs. Nalini Navin Bhagwati and others Vs Chandravandan M. Mehta

11-10-1996

Supreme Court-min

An application to revoke probate or letter of administration would be treated as miscellaneous application. The application to revoke the probate or letter of administration thus may be disposed of by the District Judge either summarily or in a given situation where it requires proof of the facts by adduction of evidence by the parties by recording such evidence as is adduced by the parties. The burden will be on the applicant to prove the facts to revoke the probate or letter of administration and the respondent who obtained probate or letter of administration has to disprove the contentions of the applicant. In that situation, based upon the given facts situation, it will be for the Court to dispose of either summarily or after giving opportunity to both the parties to adduce evidence and consideration thereof. Under these circumstances, it is not necessary that the application for revocation of the probate or letter of administration would be treated as a suit as contemplated under Section 295 of the Act,

AIR 1997 SC 1055 : (1996) 7 Suppl. SCR 631 : (1997) 9 SCC 689 : JT 1996 (10) SC 258 : (1996) 8 SCALE 60

(SUPREME COURT OF INDIA)

Mrs. Nalini Navin Bhagwati and others Appellant
Versus
Chandravandan M. Mehta Respondent

(Before: K. Ramaswamy And G. B. Pattanaik, JJ.)

Civil Appeal Nos. 14217-20 of 1996 (arising out of S. L. P.(C) Nos. 78-81 of 1996), Decided on: 11-10-1996.

Succession Act, 1925—Sections 295 and 263—revocation of probate

Counsel for the Parties:

Harish N. Salve, Sr. Advocate, Sunil Dogra, Ms. Monica Sharma, for S. S. Shroff, Advocates, with him for Appellants

H. K. Puri, Rajesh Srivastava, S. C. Dhanda and Ujjwal Banerjee, Advocates, for Respondent.

order

1. Leave granted.

2. These appeals by special leave arise from the judgment of the Gujarat High Court dated August 14, 1995 made in Civil Revision Application Nos. 1142 and 1148 of 1995 (reported in AIR 1996 Guj 123) and the order dated July 18, 1995 made in Civil Application Nos. 2825 and 21829 of 1995 in CRA Nos. 1142 and 1148 of 1995.

3. The admitted facts are that one Manvantrai Mehta owned plot No. 13 in Krishna Co-operative Housing Society at Ahmedabad and also on open plot No. 14 in the said society. He died on 16-1-1995 leaving behind his widow Kamlaben and five children, namely, Narendra, Chandravadan (respondents herein) and Nalini, Chandrakalaben and Vasantben (petitioners herein). In other words, he left behind him three daughters and two sons. Plot No. 13 was in the name of Narendra Mehta who dies on August 8, 1971. But his wife was not known, Kamlaben also die on September 16, 1984. The respondents filed C.M. Application No. 123 of 1985 in the Civil Court at Ahmedabad and obtained probate to the will left by Kamlaben, their mother. The probate was granted on January 16, 1987. The appellants on coming to know of the said probate filed an application to revoke the probate. The Civil Judge, City Civil Court, Ahmedabad was prayed to convert the application into a regular suit. It was rejected by the trial Court. On revision, the High Court by order dated July 18, 1995 held that there was proper explanation for the delay in filing the application for revocation of the probate but directed to treat the application as a suit filed under S. 295 of the Indian Succession Act, 1925 (for short, the ‘Act’). Feeling aggrived by the latter direction, these appeals have come to be filed.

4. Shri Harish Salve, leanred senior counsel appearing for the appellants, contended that the application for revocation cannot be treated to suit filed under S. 295 of the Act, That would apply only in a case where probate was sought for and there was contentions issues involved in that behalf. Therefore, it would be treated as a suit and the propounder who seeks probate or letter of administration will be treated as a plaintiff and the person opposing the claim as defendant and the appellation would be set out as a suit for trial under the provisions of CPC. But application for revocation is required to be considered on the grounds set out under S. 263 of the Act, When the person who seeks revocation of the probate or letter of administration is required to be dealt with as an application but not as a suit. The District Judge, depending upon the given fact-situation would dispose it of either summarily or on fulldress enquiry, on recording the evidence of witness as a suit. But in no circumstances, it would be treated as a suit. Shri H. K. Puri, learned counsel for the respondents, contended that Part IX of the Act itself gives indication as to the manner in which the proceedings could be dealt with at different stages. Chapter IV of Part IX clearly indicates that when an application is filed for probate it should be dealt with as suit and for revocation of a probate similarly to be treated as a suit and would be considered in accordance with the procedure provided under the C. P. C. The applicant who seeks revocation of probate would be treated as a plaintiff and the person who opposes the revocation as defendant. Therefore, the High Court was right in directing to treat the application for revocation as a suit and to proceed with the trial on that basis.

5. Having considered the respective contentions, the question that arises for consideration is:whether the application for revocation of the probate would be treated as a suit under S. 295 of the Act? The said section reads as under:

“In any case before the District Judge in which there is contention, the proceedings shall take, as nearly as may be, the form of a regular suit, according to the provisions of the Code of Civil Procedure, 1908, in which the petitioner for probate or letters of administration, as the case may be, shall be plaintiff, and the person who has appeared to oppose the grant shall be the defendant.”

6. In other words, when probate or letter of administration was sought, on the basis of a will and there was a contentious issue in that behalf, the District Judge had to set it out in the form of a regular suit and the provisions of CPC would be applied in trying it as a suit. The propounder of the will for probate or letter of administration would be a plaintiff and the person who opposes it shall be the defendant.

7. But when the grant of probate or letter of administration is sought to be revoked, it is not clear to what nomenclature would be ascribed to it and what procedure would be adopted for its disposal. Take for instance a situation when the suit is decreed ex parte. Order IX, Rule 13 provides for making of an application to set aside the decree on proof of certain grounds ex parte decree gets set aside. Similarly, when the suit was dismissed for a default, under O. IX, R. 9 an application would be filed and on proof of the circumstances for absence, the order would be set aside and suit would get restored. Similarly, when probate or letter of administration is granted and it is sought to be revoked, S. 263 provides for the grounds on the basis of which it would be revoked. When the grounds are sought to be proved, the question is:whether such an application would be treated to be a suit? We are of the considered view that an application to revoke probate or letter of administration would be treated as miscellaneous application and may be disposed of on the fact situation in an appropriate case either summarily or after recording evidence. The application to revoke the probate or letter of administration thus may be disposed of by the District Judge either summarily or in a given situation where it requires proof of the facts by adduction of evidence by the parties by recording such a evidence as is adduced by the parties. The burden will be on the applicant to prove the facts to revoke the probate or letter of administration and the respondent who obtained probate or letter of administration has to disprove the contentions of the applicant. In that situation, based upon the given facts situation, it will be for the Court to dispose it of either summarily or after giving opportunity to both the parties to adduce evidence and consideration thereof. Under these circumstances, it is not necessary that the application for revocation of the probate or letter of administration would be treated as a suit as contemplated under S. 295 of the Act, If the contention of Shri Puri merits acceptance, then any proceedings under the application to revoke the probate or letter of administration should be treated as a suit; the applicant cannot prove the will and at the same time cannot contend that the will was not validly executed. Therefore, it would be self contradictory to adopt such a procedure. Accordingly, we are of the view that the procedure required under S. 295 need not be adopted for disposal of the application filed under S. 263 for revocation of the probate or the letter of administration. It would be treated as miscellaneous application and disposed of as indicated earlier according to the given fact situation. In fact, the Bombay High Court came to consider the question, not directly on this issue but in an analogous situation in Narbheram Jivaram Purohit v. Jevallabh Harijivan, (1933) 35 Bom LR 998. Therein, the learned single Judge had held that the proper procedure for revocation of probate granted by the High Court is by way of a petition filed in the testamentary and intestate jurisdiction of the Court, and not by way of suit in its Ordinary Original Civil Jurisdiction. In other words, the Court indicated that it need not be treated as a suit on the original side of the Court but it could be disposed of as an application independent of the suit. Thus, we hold that the High Court was clearly in error in reaching the conclusion that it should be treated as a suit and disposed of under Section 295.

8. The appeals are accordingly allowed. The trial Court is directed to dispose of the matter as expeditiously as possible. No costs.

 

Crystal Developers Vs Smt. Asha Lata Ghosh (Dead) (Through L.Rs.)-when the probate issued in the common form is revoked under section 263 the revocation operates prospectively

05-10-2004.

Supreme Court-min

The probate can be revoked upon any of the grounds mentioned in section 234 of the Indian Succession Act, 1865 (Section 263 of Indian Succession Act, 1925). In the said judgment, it has been observed that in cases where the probate has been given in the common form, and not in the solemn form, the probate Court may call upon the propounder to prove the Will in the presence of the objector afresh so as to give the objector an opportunity of testing the evidence in support of the Will. This judgment, therefore, lays down that even when the probate issued in the common form is revoked under section 263 the revocation operates prospectively; that on revocation parties are given an opportunity to prove the Will afresh.

AIR 2004 SC 4980 : (2004) 5 Suppl. SCR 31 : (2005) 9 SCC 375 : JT 2004 (9) SC 64 : (2004) 8 SCALE 390

(SUPREME COURT OF INDIA)

Crystal Developers Appellant
Versus
Smt. Asha Lata Ghosh (Dead) (Through L.Rs.) Respondent

WITH

Archit Vanijya and Viniyog Pvt. Ltd. and others Appellant
Versus
Smt. Asha Lata Ghosh (Dead) through L.Rs. and others Respondent

WITH

Archit Vanijya and Viniyog Pvt. Ltd. and others Appellant
Versus
Smt. Asha Lata Ghosh (Dead) through L.Rs. and others Respondent

AND

Archit Vanijya and Viniyog Pvt. Ltd. and others Appellant
Versus
Arindam Ghosh and others Respondent

(Before : Ashok Bhan And S. H. Kapadia, JJ.)

Civil Appeal No. 6258 with 6259 of 2000 and 6871-6873 of 2003, Decided on : 05-10-2004.

Grant of probate operates judgment in rem and can be set aside on ground of fraud or collusion—revocation however not operates retrospectively.

Counsel for the Parties:

Shanti Bhushan, Ranjit Kumar, Sr. Advocates, Hiren Dasan, Mrs. Sarla Chandra, Srikanto Roy and Sanjay K. Pathak, Advocates, with them, for Appellants.

Mukul Rohtagi, R. K. Shukla, Sr. Advocate, Ms. Sandhya Goswami, Bijan Kumar Ghosh, Dhruv Mehta, Sakya Singha Chaudhuri, Mohit Chaudhry, Ms. Indra Sawhney, D. P. Mukherjee, Ms. Nandini Mukherjee, S. K. Bhattacharya, Ujjwal Banerjee, H. K. Puri and H. C. Kharbanda, Advocates, with them, for Respondents.

Judgment

Kapadia, J—Civil Appeals Nos. 6258-6259 of 2000

These civil appeals, by grant of special leave, are directed against the judgment and order dated 4-9-2000 passed by the High Court of Calcutta in First Appeal Nos. 46 and 47 of 2000 confirming the judgment and decree passed by the Court of 9th Sub Judge, Alipore, Calcutta in Title Suit No. 89 of 1981, whereby the suit for partition stood decreed. It may be clarified that Civil Appeal No. 6258 of 2000 has been preferred by Crystal Developers who were original defendant No.14 in title suit No. 89/81 whereas Civil Appeal No. 6259 of 2000 has been filed by Archit Vanijya and Viniyog Pvt. Ltd. and others, original defendants Nos. 15 to 20 in the said suit No. 89/81.

2. Since common questions of law and fact arise in the said Civil Appeals, the same were heard together and are disposed of by this judgment.

3. The facts giving rise to these appeals are as follows :-

One Balai Chand Ghosh (since deceased) had three wives. His first wife was Jamuna, from whom he had two sons, Naresh and Paresh. Nirmala was the second wife of Balai Chand Ghosh, from whom there were four sons and two daughters, namely, Jogesh, Ramesh, Bhabesh and Suresh. The names of the two daughters were Parul and Manju. Mamta was the third wife who had only one issue, Arindam.

4. On 21-9-1981, the above partition suit No. 89/81 was filed in the Court of 9th Sub Judge, Alipore (hereinafter for the sake of brevity referred to as “the trial Court”). It was filed by Naresh, Jogesh, Ramesh, Bhabesh, Parul and Manju as legal heirs of Balai Chand, who had died on 16-8-1980. Balai Chand Ghosh left behind him considerable properties, one of which was the suit premises situate at 9/4, Middleton Row, Calcutta-16. Mamta, the third wife of Balai Chand was defendant No.1 and her son Arindam was defendant No. 2 in the said suit. Nirmala, the second wife of Balai Chand was the third defendant. Paresh, the son from the first wife, was defendant No.4. Suresh, son of Balai Chand from the second wife, was the 5th defendant. Therefore, the parties to the suit claimed 1/11th undivided share each in the suit premises. The suit premises were wholly tenanted on 21st September, 1981 when the partition suit No. 89 of 1981 was filed. In the said suit, a written statement was filed on 9-5-1983 by defendants Nos. 1 and 2, namely, Mamta and her son Arindam. In the said written statement, Arindam set up the registered Will made by Balai Chand on 25-12-1977. He relied on the probate dated 31-7-1981; consent decree dated 3-8-1981 in suit No. 310 of 1981 as also the conveyance (Ex. A/8) dated 4-8-1981 in favour of Crystal Developers, defendant No. 14. In the written statement, defendant No. 2 also relied on the order dated 21-8-1982 passed by the Court of 5th Addl. District Judge, Alipore in Miscellaneous Case No. 3/80 to show that Nirmala had knowledge of the registered Will of Balai Chand and of the appointment of defendant No. 2 as the executor under the said Will. In 1993, the plaint was amended and defendant No. 14 was brought on record. It is alleged that on inspection of assessment record of the municipality on 22-6-1993 and 22-8-1993, the plaintiffs came to know of the impugned transfer. According to the amended plaint, Mamta (defendant No. 1) and Arindam (defendant No. 2) had sold, in collusion with each other, the suit premises to defendant No. 14 to prevent the plaintiffs from claiming the same; that prior to the transfer, defendants Nos. 1 and 2 did not serve notice to the other heirs of Balai Chand; that the plaintiffs were not aware of the agreement for sale dated 12-3-1979 (Ex. A/1), the supplemental agreement for sale dated 21-7-1980 (Ex. A/2), the conveyance dated 4-8-1981 (Ex. A/8); that defendants Nos. 1 and 2 never acquired any indefeasible title and consequently Ex. A/1, Ex. A/2 and Ex. A/8 were null and void and not binding on the other heirs of Balai Chand. The plaintiffs, accordingly, prayed for a preliminary decree for partition of the suit premises after declaring the plaintiffs 1/11th share in the suit premises.

5. In the written statement, defendant No. 14-Crystal Developers (the appellant in C.A. No. 6258/2000) alleged that the present partition suit was filed to circumvent Ex. A/1 and Ex.A/2, executed during the lifetime of Balai Chand; that pursuant to the consent decree dated 3-8-1981 in suit No. 310/81, defendant No.2 had executed Ex. A/8 in favour of defendant No. 14 on payment of full consideration; that pursuant to Ex. A/8, defendant No. 14 got freed the suit premises from requisition, acquisition and other encumbrances (including tenants); that pursuant to Ex. A/8, defendant No. 14 got the building plan sanctioned by Calcutta Municipal Corporation; that the old building was got demolished and new multi-storey building was constructed; that Ex. A/8 was executed only after defendant No. 2 got the probate on 31-7-1981; that the aforestated developments were known to the heirs of Balai Chand who acquiesced to the development of the property between 21-9-1981 (when the partition suit was filed) and 22-6-1993 (when defendant No. 14 was brought on record). It was submitted that probate dated 31-7-1981 was revoked on 9-7-1987 not on the ground of alleged fraud but for non service of citation on Parul and Manju, the daughters of Balai Chand and consequently Ex. A/1, Ex. A/2 and Ex. A/8 were binding on the estate of Balai Chand. In the written statement, defendant No. 14 claimed that they were bona fide purchasers for value without notice of any defect in obtaining of probate by defendant No. 2.

6. The written statement filed by defendants Nos. 15 to 20, the vendees from defendant No. 14, is on the same lines as that of defendant No. 14 and therefore, it is not necessary to repeat the averments contained therein.

7. On the above pleadings, the trial Court framed 14 issues. However, we are concerned with issues Nos. 8, 9, 11 and 12 as framed by the trial Court :

(i) Did defendants Nos. 1 and 2 acquire indefeasible title and absolute right in the suit premises?

(ii) Whether Ex. A/8 executed by defendant No. 2 in favour of defendant No. 14 on the basis of probate dated 31-7-1981 was null and void in view of the subsequent revocation of the grant by the probate Court vide order dated 9-7-1987?

(iii) Whether Ex. A/8 executed by defendants Nos. 1 and 2 in favour of defendant No. 14 was valid, legal and binding on the plaintiffs? and

(iv) Whether defendants Nos. 15-20 were bona fide purchasers for value without notice?

8. Answering the above issues, the trial Court held that defendant No. 14 was not a bona fide purchaser. In support of the said findings, the trial Court relied upon the following circumstances. Firstly, that Ex. A/1 and Ex. A/2 were executed by defendant No. 2 as constituted attorney of Balai Chand. That no reason was given as to why Ex. A/1 and Ex. A/2 were got executed by defendant No. 2 when Balai Chand was alive. Secondly, in the said suit No. 310/81,defendant No. 2 alone was the sole defendant even though on the date (21-4-1981) of filing of the suit for specific performance, probate had not been granted. Thirdly, that the probate was obtained without service of the citation on Parul and Manju, the two daughters of Nirmala. Fourthly, according to the trial Court, the hastiness with which the said suit No. 310/81 was settled indicated that consent decree was obtained without looking into the probate. According to the trial Court, defendant No. 14 had knowledge of the grant of probate even before issuance of its certified copy by the Registry as defendant No. 2 and defendant No. 14 had common attorneys. Fifthly, the trial Court relied on the affidavit dated 25-9-1997 filed by defendant No. 1 at the interim stage stating that Balai Chand had never entered into Ex. A/1 and that the power of attorney and the Will were forged. Sixthly, the trial Court found that power of attorney was not proved and, therefore, Ex. A/1 and Ex. A/2 were executed by defendant No. 2 to defeat the rights of the plaintiffs. Seventhly, under clause (2) of Ex. A/1, the purchase price was to be calculated @ ` 55,000/- per kottah of land. On that basis, the total consideration receivable by defendant No.2 was ` 15 lacs (approximately), whereas he has been paid ` 9,54,632/-. Eighthly, in Ex. A/8 there was no reference to the consent decree dated 3-8-1981. Ninthly, the adhesive stamp was affixed on Ex. A/8 on 3-8-1981 i.e. one day prior to its execution. Lastly, that defendants Nos. 15 to 20 had bought the suit premises after the revocation of the grant on 9-7-1987. In the aforesaid circumstances, the trial Court came to the conclusion that there was collusion between defendant No. 2 and defendant No. 14; that defendant No. 14 was not a bona fide purchaser and that defendant No. 2 had no authority to execute Ex. A/8 without the consent and knowledge of other heirs of Balai Chand. According to the trial Court, the probate was revoked by the High Court vide order dated 9-7-1987 for non-citation and forgery. The trial Court concluded that defendant No. 2 had practised fraud upon the probate Court in collusion with defendant No. 14 and in the circumstances, Ex. A/1, Ex. A/2 and Ex. A/8 were not binding on the other heirs of Balai Chand. Consequently, the trial Court decreed the partition suit.

9. Being aggrieved, the matter was carried in appeal to the Division Bench of the High Court. By the impugned judgment, it has been held that defendant No. 2 got himself substituted in the legal proceedings in 1982 without disclosing the grant of probate and Ex. A/8; that probate was revoked on account of non-citation; that defendant No. 14 had colluded with defendant No. 2 in filing of suit No.310/81 in which none of the other heirs were made party defendants; that no notice of purchase was given by defendant No.14 to the said other heirs before executing Ex. A/8; that in Ex. A/8, there was no reference to the consent decree; that in Ex.A/8, the date of grant of probate has been altered from 29-7-1981 to 31-7-1981 and Ex. A/8 was executed even before issuance of the certified copy of the probate by the Registry. In the circumstances, the High Court came to the conclusion that defendant No. 14 was a privy to the fraudulent acts of defendant No. 2 and was, therefore, not a bona fide purchaser. In the circumstances, the High Court dismissed the appeals. Hence, these appeals.

10. Mr. Shanti Bhushan, learned senior counsel for defendant No. 14 submitted that although Ex. A/1 and Ex. A/2 were executed by defendant No. 2 as constituted attorney of Balai Chand, an advance of ` 2.25 lacs was received by Balai Chand from defendant No. 14 as evidenced by receipts Ex. A/3 and Ex. A/4. The receipt of payments by Balai Chand establishes that Balai Chand during his lifetime had intended to sell the suit premises. Hence, Ex. A/1 was binding on Balai Chand as also on his heirs. It was urged that Ex. A/8 was pursuant to Ex. A/1, Ex. A/2 and the probate, hence, it was binding on the estate of the deceased and therefore the other heirs could not have followed it into the hands of defendant No. 14.

11. Learned counsel next submitted that it was not open to the plaintiffs to impugn Ex. A/8 as fictitious or fraudulent as the plaintiffs had acquiesced and allowed the suit property to be freed from encumbrances. In this connection it was pointed out that the partition suit was filed on 21-9-1981 whereas the plaint was amended in 1993 when defendant No. 14 was brought on record. During this period the suit premises were freed by filing writ petition for revocation of requisition, acquisition and eviction of tenants. During this period the old structure was got demolished and a new multi-storey building was constructed. In the circumstances, it was highly improbable that none of the heirs had no knowledge of the aforestated developments. Hence, it was not open to the plaintiffs to sit on the fence for 13 years, allowing the property to be developed and then challenge Ex. A/8 as fictitious. It was submitted that both the Courts below have failed to notice the aforesaid circumstances.

12. Learned counsel for defendant No. 14 next invited our attention to the evidence of DW5 on behalf of defendant No.14 and submitted that Ex. A/8 was entered into only after thorough search of the title deeds and the documents, including the probate dated 31-7-1981. It was submitted that defendant No.14 had paid the balance consideration to defendant No. 2 who was the executor under the Will. It was urged that the sale was duly completed only after defendant No. 2 had obtained the probate. It was submitted that the heirs of Balai Chand were bound by the acts of the executor and the sale was binding on the estate of the deceased.

13. Learned counsel for defendant No. 14 referred to the order passed by the civil Court in Misc. Case No. 3/80 between Nirmala and Balai Chand by which on the demise of Balai Chand defendant No. 2 was brought on record as the executor under the above Will. According to the learned counsel the above order shows that Nirmala, the second wife of Balai Chand, was aware of the above Will. She was aware of defendant No. 2 being appointed an executor. Learned counsel therefore submitted that both the Courts below erred in holding that till 1986, the heirs were not aware of the Will.

14. It was next submitted that the trial Court had erred in holding that the grant was revoked in 1987 on the ground of forgery. In this connection, it was pointed out that on 14-5-1986 Bhabesh applied for revocation of the grant on the ground that probate was obtained fraudulently. In the said application it was further alleged that the will was forged. By order dated 18-9-1986, the probate Court dismissed the application. Learned counsel further pointed out that Parul and Manju did not support Bhabesh in the above application. It is so recorded by the probate Court in the order dated 18-9-1986, dismissing application of Bhabesh for revocation. Yet on 25-3-1987, Parul and Manju applied for revocation on the ground of fraud, forgery and non-citation. By an ex parte order dated 9-7-1987, the probate Court has revoked the grant only on the ground of non-citation which is admitted by PW1 in his evidence. In the circumstances, learned counsel submitted that the revocation cannot annul the impugned disposition which was effected during the period when probate was in existence.

15. Lastly, it was submitted that in the absence of allegation of fraud or collusion against defendant No. 14, both the Courts below erred in holding that defendant No. 14 was not at arms length to defendant No. 2. It was submitted that fraud and collusion have to be alleged and proved. It was urged that no particulars of fraud or collusion against defendant No. 14 have been given in the plaint and yet both the Courts below have given a finding of collusion against defendant No. 14 based on suspicion and misconception of facts without proof. Learned counsel invited our attention to the plaint in which the only allegation was that defendant No.1 and defendant No. 2 had colluded with each other to defeat the claim of the other heirs of Balai Chand. Hence, there was no issue of fraud or collusion against defendant No. 14. In the circumstances, learned counsel submitted that both the Courts below had erred in holding that defendant No. 14 was not a bona fide purchaser.

16. Mr. Ranjit Kumar, learned senior counsel for defendants Nos. 15 to 20 adopted the arguments advanced on behalf of defendant No. 14 and submitted that under section 211 of Indian Succession Act, 1925, the estate of the deceased testator vests in the executor from the date the will becomes enforceable, i.e. from the date of death of the testator. Learned counsel submitted that the act of disposition performed by the executor is binding on the estate of the deceased under Section 307 as long as the said disposition is compatible with the administration of the estate. It was submitted that in the present case, Bhabesh had applied for revocation on the ground that the probate was obtained fraudulently, however, the probate Court had rejected that application. It was submitted that defendant No. 14 had completed the sale only after the probate and after going through it and therefore defendant No. 14 was a bona fide purchaser and since defendants Nos. 15 to 20 had derived title from defendant No. 14, the said defendants Nos. 15 to 20 were protected. In the circumstances, learned counsel submitted that revocation of grant will operate prospectively and such revocation will not annul the intermediate act of disposition by defendant No. 2.

17. Mr. Mukul Rohtagi, learned senior counsel for plaintiffs Nos. 1 and 4 and defendant No. 4; Mr. Dhruv Mehta, learned counsel for plaintiffs No. 5 and 6; and Mr. R.K. Shukla, learned senior counsel appearing on behalf of the heir of plaintiff No. 2 submitted that defendants Nos. 14 to 20 were not entitled to rely upon the probate or the Will in support of their case in view of the concession made by their counsel before the Division Bench of the High Court. In this connection, it may be mentioned that when the appeal came for final hearing before the High Court, the learned Judges enquired whether defendants Nos. 14 to 20 would like to await the decision on the validity of the Will from the probate Court to which the defendants Nos. 14 to 20 responded by stating that they would like to proceed with the matter as they were in possession having title to the suit premises. Learned counsel for the plaintiffs, therefore, submitted that defendants No. 14 to 20 cannot rely on the probate or the Will under the aforestated circumstances.

18. It was next contended on behalf of the plaintiffs that probate granted without Will being proved in accordance with section 63 of Indian Succession Act and section 68 of the Evidence Act was void ab initio. Learned counsel submitted that aforestated question was a question of law and therefore the plaintiffs were entitled to raise it at any point of time before this Court, notwithstanding the fact that such a question was not raised by the plaintiffs before the lower Courts in this case. Learned counsel for the plaintiffs next contended that in this case the impugned Will was surrounded by suspicious circumstances and that the initial onus was on defendant No. 2 or defendant No. 14 to remove or explain those circumstances. It was submitted in this connection that registration of the Will was not conclusive. That on revocation of the probate on 9-7-1987 on the ground of non-citation, the onus to prove the Will as genuine was on defendant No. 2 or defendant No. 14.

19. As regards the alleged suspicious circumstances surrounding the Will, it was pointed out that Mamta, defendant No. 1, had filed an affidavit dated 25-9-1997 at the interim stage in the present suit wherein she had stated that the impugned Will was forged and that Balai Chand had made the Will under undue influence of defendant No. 2. It was further contended that the Will was an unnatural disposition as Parul and Manju, the two daughters from Nirmala have not been named therein. That the Will has been executed when Balai Chand was 90 years old. That the Will was signed on 25-12-1977 but the same was registered on 4-1-1978; that the will was registered at the residence of Balai Chand in the presence of the Registrar, however, so far as the power of attorney is concerned, it was registered at the office of the Registrar on the same day i.e. 4-1-1978. That it is incomprehensible as to why none of the plaintiffs failed to respond to the notice issued by the probate Court. In the circumstances, it was submitted that the Will was surrounded by suspicious circumstances aforestated, apart from the circumstances mentioned in the impugned judgments and further that those circumstances indicated that even the probate was obtained fraudulently.

20. On the point as to whether defendant No. 14 and defendants Nos. 15 to 20 were bona fide purchasers for value without notice, it was submitted that the consent decree dated 3-8-1981 in suit No. 310/81 was a collusive decree entered into with the intention to defeat the rights of the plaintiffs in the partition suit. In this connection, reliance was placed on the following circumstances. That Balai Chand did not execute Ex. A/1 and Ex. A/2. They were executed by defendant No. 2 as constituted attorney for Balai Chand. The power of attorney has not been proved. That before the conveyance, Ex. A/8, Balai Chand expired and with the demise of Balai Chand, the power of attorney came to an end and, therefore, defendant No. 2 had no power to transfer under such power of attorney. That after the demise of Balai Chand, balance consideration was received by defendant No. 2 in his personal capacity from defendant No. 14. That in suit No. 310/81, the legal heirs of Balai Chand were not made party defendants. That Arindam was the only defendant. That the names of other heirs were known to defendant No. 14 and yet they were not made parties in suit No. 310/81. That the probate was obtained fraudulently without serving Parul and Manju. That provisions of Order 23, Rule 3B, C.P.C. were circumvented in obtaining the consent decree. According to the learned counsel, the probate in question was obtained fraudulently by non-citation on Parul and Manju. That although certified copy of the probate came to be issued on 31-7-1981, sale took place on 4-8-1981 which indicated that Ex. A/8 was entered into without going through the probate. That although defendant No. 2 was aware of the names of other heirs, they were not made parties to suit for specific performance and that the consent decree was obtained by act of fraud on the Court. That all these circumstances were known to defendant No. 14 and, therefore, defendant No. 14 or defendants Nos. 15 to 20 cannot claim protection for the transfer, which originated from fraud. That the said defendant No. 14 and defendants Nos. 15 to 20 have claimed interest in the suit premises on the basis of dishonest transaction, which originated from fraud committed on the parties to the suit and upon the Court. It was contended that suit No. 310/81 was filed to complete the sale at the earliest. That there was total lack of bona fides on the part of defendant No. 14 and defendants Nos. 15 to 20. That in Ex. A/1, the total consideration was not mentioned and only the rate of ` 55,000/- per kottah. At the above rate, the total price payable was ` 15.04 lacs but defendant No. 2 sold it for ` 9.54 lacs. That defendant No. 2 knew that transaction was a fraud and so he accepted the throw away price. That under clause 13.3 of Ex. A/1, the agreement was terminable in case the conveyance was not executed within one year of the date of the agreement. Therefore, it became necessary to extend the validity of the agreement which could be done by defendant No. 2 only as constituted attorney and not as executor as extension could not be justified as a cause towards administering the estate of deceased and, therefore, by surreptitious method, defendant No. 14 in connivance with defendant No. 2 as constituted attorney executed Ex. A/2 after death of Balai Chand posing that instrument to be executed in July, 1980. In this connection, reliance was placed on the registration of Ex. A/2 on 2-12-1980 after the death of Balai Chand by defendant No. 2 presenting it before the Registrar even though the power of attorney had come to an end. That in the above circumstances, it cannot be said that defendant No. 14 and defendants Nos. 15 to 20 took the property bona fide and in good faith.

21. In view of the above arguments, we have to examine the evidence on record.

22. On behalf of the plaintiffs, Bhabesh-plaintiff No. 4 was examined as PW1. In his examination-in-chief, PW1 deposed that the plaintiffs learnt about the probate case in 1986. In 1986, plaintiffs became aware of Arindam getting the probate. However, PW1 deposed that plaintiffs were not aware of defendant No. 2 being appointed executor under the Will. He denied execution of the Will by Balai Chand. PW1 further deposed that plaintiffs were not aware of Ex. A/8. He conceded that at the material time Balai Chand was not having good relations with Nirmala and her children and that at the material time, his relations with Balai Chand were not good. In his cross-examination, he deposed that there were several litigations between Balai Chand and Nirmala. Balai Chand had instituted title suit No. 68 of 1962 in the Court of 8th Subordinate Judge, Alipore for a declaration that he was the real owner of eight properties and that defendant wives in whose name the properties stood were his benamidars. The suit was contested by Nirmala alleging that she was the real owner of the properties. By judgment dated 31-3-1962, the suit was decreed in favour of Balai Chand. Being aggrieved, First Appeal No. 491 of 1962 was preferred by Nirmala, Suresh and Bhabesh against Balai Chand. The said appeal was compromised on 29-9-1977. In the said compromise, Balai Chand was declared to be the sole and absolute owner inter alia of the suit premises. The said settlement has been referred to by PW1 in his evidence. The said settlement was between Balai Chand and Nirmala. The compromise was objected to by Ramesh (one of the sons of Nirmala). Ultimately, there was one more compromise decree between Balai Chand and Ramesh, under which Ramesh was given premises bearing 74, Lansdown Road, Calcutta. PW1 in his evidence has also referred to the judgment of the Supreme Court in the case of Nirmala Bala Ghose and another vs. Balai Chand Ghose reported in (AIR 1965 SC 1874) arising from suit No. 67 of 1955 filed by Balai Chand against Nirmala seeking declaration that the deed of dedication was not an absolute dedication of properties to the deities. PW1 has further stated in his cross-examination that Balai Chand used to reside with his youngest wife Mamta and defendant No. 2. PW1 in his cross-examination deposed that in 1986 he had applied for revocation of probate on the ground of fraud in obtaining the probate by defendant No. 2 and forgery of the Will, however, his application was rejected by the probate Court. His two sisters, Parul and Manju had thereafter applied for revocation of probate on the ground of non-citation. PW1 admitted that Balai Chand had separated in mess since 1956-57. He was not aware of Ex. A/1. He was not aware of suit No. 310/81. He was not aware of the consent decree in suit No. 310 of 1981. He conceded that when Balai Chand died on 16-8-1980, litigations were pending between the deceased on one hand and Nirmala on the other hand. That when Balai Chand died, on 16-8-1980, he was living with his third wife Mamta and not with Nirmala. Balai Chand himself used to look after his properties. He has further deposed that he never enquired from Balai Chand about the transfer of properties. PW1 did not make any search in the Registrar’s office in the matter of title deeds concerning the suit premises on the demise of Balai Chand. PW1 admitted that the plaintiffs did not take steps to evict the tenants or to get the properties freed from requisition.

23. In the said suit, defendant No. 2, Arindam, was examined as DW1. In his examination-in-chief, DW1 deposed that Jamuna died before the second marriage of Balai Chand leaving behind Paresh and Naresh, who never resided with Balai Chand. Balai Chand had married Nirmala, the second wife, who had four sons and two daughters, who never resided with Balai Chand. Balai Chand did not have good relations with Nirmala and her children. Balai Chand did not enjoy good relations with Paresh and Naresh. That there were suits between Balai Chand and Nirmala. Balai Chand had instituted suits against the sons of Nirmala for eviction from premises No. 13, Beliaghata Road, Calcutta. That impugned Will was probated. He was an executor and a legatee under the will. He had sold the suit premises to defendant No.14 after obtaining the probate. His step sisters, Parul and Manju, had applied for revocation of probate. That the probate was revoked for non-citation and not on the ground of fraud. DW1 in his cross-examination has stated that at one point of time, his mother Mamta, was under the impression that the Will of Balai Chand was fake but later on she realized that the Will was genuine and accordingly she had filed an affidavit dated 26-11-1997 in the present suit stating that the Will was genuine and that the power of attorney was executed in favour of defendant No. 2. DW1 deposed that Balai Chand during his lifetime agreed to sell the suit premises to defendant No. 14 vide Ex. A/1. That the said agreement was subsequently modified by Ex. A/2. That ` 1,25,000/- was received on 14-4-1979 (Ex. A/3). That at the time Ex.A/1 was executed, Balai Chand was hale and hearty. Balai Chand had agreed to sell the suit premises for consideration. DW1, however, denied that the will was forged. DW1 had very good relations with his mother Mamta and Balai Chand. He admitted his signatures on power of attorney. He denied that Balai Chand had not executed the power of attorney in his favour. He denied that Ex. A/1 had been entered into to defraud the other heirs of Balai Chand. He deposed that Ex. A/1 was entered into during the lifetime of Balai Chand. He denied that Ex. A/2 was collusive. According to DW1, Balai Chand was aware of Ex. A/1 and Ex. A/2. DW1 denied that he has no right to execute Ex. A/8. DW1 further asserted that he had signed Ex. A/8 in his capacity as a legatee as well as an executor of the estate of Balai Chand, after the probate dated 31-7-1981.

24. On behalf of defendant No. 14, one of its partners DW5 deposed that defendant No.14 had paid substantial amounts under Ex. A/1 and Ex. A/2. That initial amount of ` 1,25,000/- was paid by cheque drawn in favour of Balai Chand (Ex. A3). That prior to Ex. A/8, the developer had instituted suit No. 310 of 1981 for specific performance of Ex. A/1 and Ex. A/2 which suit was decreed on 3-8-1981, pursuant to which Ex. A/8 was executed on 4-8-1981 by defendant No. 2 as the sole executor under the will of Balai Chand, which will was probated on 31-7-1981. He further deposed that defendant No. 14 got possession of the suit premises after Ex. A/8. That before executing Ex. A/8, defendant No. 14 had carried out the search of the title deeds and documents including the probate. That defendant No. 14 was a bona fide purchaser. DW5 has deposed that he did not recollect the date on which the document Ex. A/8 was submitted before the Collector for affixing the adhesive stamp. DW5 has denied that Ex. A/8 was prepared before the delivery of the judgment in the suit No. 310/81. DW5 has deposed that defendant No. 14 was aware of the probate case at the time when defendant No. 14 alienated the suit premises in favour of defendants Nos. 15 to 20. That defendant No. 14 did not inform defendants Nos. 15 to 20 regarding the pendency of the probate case as at the time of alienations in favour of defendants Nos. 15 to 20, there was no probate case pending. DW5 has stated that Ex. A/8 was executed by defendant No. 2 as sole executor of the will and as constituted attorney of Balai Chand. After seeing the document, DW5 has deposed that the adhesive stamp was engrossed on Ex. A/8 on 3-8-1981. DW5 has however further stated that he had no personal knowledge about the preparation of Ex. A/8. On being shown Ex. A/8, DW5 conceded that in Ex. A/8, there was no mention about suit No. 310 of 1981. He however denied that Ex. A/8 was prepared much prior to 3-8-1981 when the said suit No. 310/81 was decreed. He denied that the said suit No. 310/81 was collusive, as between Balai Chand, defendant No.14 and defendant No. 2. DW5 has further stated that suit No. 310/81 was filed for specific performance against Balai Chand and defendant No. 2 as executor of the will; that the testator was not alive when Ex. A/8 was executed; that Balai Chand had died leaving behind him nine children and two wives; that they were not made parties to the suit No. 310/81; DW5 denied that he was aware of the revocation of the grant of probate in 1987. He denied that defendant No. 14 was aware of the revocation of the probate in the year 1987.

25. On behalf of defendants Nos. 15 to 20, DW6 deposed that the plaintiffs in the partition suit were never in possession of the suit premises. He denied that defendants Nos. 15 to 20 were aware of revocation of probate at the time when they bought the suit premises from defendant No. 14. DW6 stated that the work of construction of the new premises after demolition of the old building started in 1991, which work continued till 1996. That the construction of the new building got completed in 1996. DW6 further stated that 13 flats have been sold to various purchasers after receiving consideration.

26. On the above pleadings and the evidence, following points arise for determination :-

(I) Effect of revocation of the probate on the disposition(s) during the pendency of the probate.

(II) Was the disposition during the pendency of the probate founded on fraud or collusion between the executor and the developers? and

(III) Was defendant No.14 bona fide purchaser for value without notice? If so, whether subsequent alienation by defendant No. 14 in favour of defendants Nos. 15 to 20 is valid and binding on the intestate heirs of Balai Chand?

I. EFFECT OF revocation OF THE probate ON THE DISPOSITION(S) DURING THE PENDENCY OF THE probate.

27. The Indian Succession Act, 1925 is enacted to consolidate the law applicable to intestate and testamentary succession. Section 2(f) defines the word “probate” to mean the copy of a will certified under the seal of a Court of a competent jurisdiction with a grant of administration to the estate of the testator. Section 2(h) defines the word “will” to mean the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death. Part VI deals with testamentary succession. Section 59 refers to persons capable of making wills. Section 61 inter alia states that a will obtained by fraud, coercion or undue influence which takes away the volition of a free and capable testator, is void. Under section 63, every will is required to be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will.

28. Section 211 falls in Part VIII which deals with representative title to the property of the deceased on succession. Section 211(1) declares that the executor or the administrator, as the case may be, of a deceased person is his legal representative for all purposes and that all the property of the deceased vests in him, as such. Under section 212, it is inter alia provided that no right to any property of a person who has died intestate can be established in any Court, unless letters of administration are granted by a probate Court. Under section 213, no right as an executor or a legatee can be established in any Court, unless probate of the will is granted, by the probate Court, under which the right is claimed. Similarly, no right as executor or legatee can be established in any Court unless the competent Court grants letters of administration with the will annexed thereto. Sections 211, 212 and 213 brings out a dichotomy between an executor and an administrator. They indicate that the property shall vest in the executor by virtue of the will whereas the property will vest in the administrator by virtue of the grant of the letters of administration by the Court. These sections indicate that an executor is the creature of the will whereas an administrator derives all his rights from the grant of letters of administration by the Court. Section 214 states inter alia that no debt owing to a deceased testator can be recovered through the Court except by the holder of probate or letters of administration or succession certificate. Section 216 inter alia lays down that after any grant of probate or letters of administration, no person other than such grantee shall have power to sue or otherwise act as a representative of the deceased, until such probate or letters of administration is recalled or revoked. Part IX of the Act deals with probate, letters of administration and administration of assets of deceased. Under section 218(1), if the deceased is a Hindu, having died intestate, administration of his estate may be granted to any person who, according to the rules for the distribution of the estate applicable to such deceased, would be entitled to. Under section 218(2), when several such persons apply for letters of administration, it shall be in the discretion of the Court to grant letters of administration to any one or more of such persons. Section 220 refers to effect of letters of administration. It inter alia states that letters of administration entitles the administrator to all rights belonging to the intestate. Section 221 inter alia states that letters of administration shall not render valid any intermediate acts of the administrator which acts diminish or damage the estate of the intestate. Sections 218, 219, 220 and 221 are relevant in the present case as they indicate that nothing prevented the intestate heirs of Balai Chand to apply for letters of administration, particularly when they alleged that Balai Chand died without making a Will. Moreover, section 221 indicates that intermediate acts of the administrator which damage or diminish the estate are not validated. This section brings out the difference between letters of administration and probate. Section 221 expressly states that certain intermediate acts of the administrator are not protected as the authority of the administrator flows from the grant by the competent court unlike vesting of the property in the executor under the Will (see: section 211). Section 222 states that probate shall be granted only to an executor appointed by the Will. Section 227 deals with effect of probate. It lays down that probate of a Will when granted establishes the Will from the date of the death of the testator and renders valid all intermediate acts of the executor. Section 227 is, therefore, different from section 221. As stated above, in the case of letters of administration, intermediate acts of the grantee are not protected whereas in the case of probate, all such acts are treated as valid. Further, section 227 states that a probate proves the Will right from the date of the death of the testator and consequently all intermediate acts are rendered valid. It indicates that probate operates prospectively. It protects all intermediate acts of the executor as long as they are compatible with the administration of the estate. Therefore, section 221 read with section 227 brings out the distinction between the executor and holder of letters of administration; that the executor is a creature of the Will; that he derives his authority from the Will whereas the administrator derives his authority only from the date of the grant in his favour by the Court. Section 235 inter alia states that letters of administration with the Will annexed shall not be granted to any legatee, other than universal or residuary legatee, until a citation has been issued and published calling on the next-of-kin to accept or refuse letters of administration. Such provision is not there in respect of grant of probate. In the circumstances, the judgment in the case of Debendra Nath Dutt and another vs. Administrator-General of Bengal reported in (ILR (1906) 33 Calcutta 713) will not apply to the present case.

29. Chapter III of Part IX deals with revocation of grants. Under section 263, the grant of probate or letters of administration may be revoked if the proceedings to obtain the grant were defective in substance; or the grant being obtained fraudulently by making a false suggestion or by suppressing from the Court something material to the case or if the grant was obtained by means of untrue allegation or if the grantee has wilfully and without reasonable cause omitted to exhibit an inventory or account in accordance with the provisions of Chapter VII of Part IX. Before us, it has been vehemently urged on behalf of the plaintiffs that the revocation of the grant of probate will make all intermediate acts ab initio void. Under section 263, as stated above, grant of probate or letters of administration is liable to be revoked on any of five grounds mentioned therein. One of the grounds as stated above is failure on the part of the grantee to exhibit/file an inventory or statement of account. Similarly, the probate or letter or administration is liable to be revoked if the grant is obtained fraudulently. Can it be said that revocation of the probate on the ground of non-exhibiting an inventory or statement of account will make the grant ab initio void so as to obliterate all intermediate acts of the executor? If it is not ab initio void in the case of non-filing of inventory or statement of account then equally it cannot be ab initio void in the case of a grant obtained fraudulently. In other words, what applies to clause (e) of the explanation equally applies to clause (b) of the explanation. At this stage, we clarify that if the intermediate act of the executor is not for the purpose of administration of the estate or if the act is performed in breach of trust then such act(s) is not protected. However, acts which are in consonance with the testator’s intention and which are compatible with the administration of the estate are protected. Therefore, on reading sections 211, 227 along with section 263, it is clear that revocation of the grant shall operate prospectively and such revocation shall not invalidate the bona fide intermediate acts performed by the grantee during the pendency of the probate.

30. Chapter IV of Part IX deals with practice in the matter of granting and revoking probates and letters of administration. Section 273 inter alia states that a probate or letters of administration shall have effect over all the properties and estate of the deceased and shall be conclusive as to the representative title against all debtors of the deceased and against all persons holding the property of the deceased and shall afford full indemnity to all debtors discharging their debts and to persons delivering up such property to the grantee. Section 278 states that every application for letters of administration shall be made by a petition in the prescribed form. Section 297 inter alia states that when a grant of probate is revoked, all payments bona fide made to an executor under such grant before revocation shall be a legal discharge to the person making payment. Under section 307, an executor or an administrator has the power to dispose of the property of the deceased, vested in him under section 211, either wholly or in part, in such manner as he may think fit. This section brings out the distinction between vesting of the estate in the executor under section 211 and his power of disposition. Section 317 refers to duties of an executor or an administrator to file statement of account and inventory periodically. To complete the title in favour of the legatee, under section 332, an assent of the executor is contemplated. This section shows that the revocation of the grant operates prospectively. It completes acts of disposition on the assent being granted. Section 332 further indicates that the property vests in the executor under the Will from the date of demise of the testator; that the executor can dispose of the property and that on the assent of the executor, the title of the legatee under the Will is completed. Therefore, section 332 makes it clear that revocation of the grant of the probate shall operate prospectively and not retrospectively.

31. As stated above, it is submitted on behalf of the plaintiffs that probate dated 31-7-1981 was void as the Will of Balai Chand was not proved in accordance with section 63 of Indian Succession Act read with section 68 of the Indian Evidence Act. Learned counsel for the plaintiffs further submitted that on revocation of the probate the grant becomes void ab initio and would obliterate all previous dealings by the executor performed during the continuance of the probate.

32. We do not find merit in the above arguments. As stated above, section 273 refers to conclusiveness of the probate as to the representative title. It establishes the factum of the Will and the legal character of the executor and all the property of the deceased testator from the date of the death of the testator, as long as the grant stands. Under section 41 of the Evidence Act, the grant operates as judgment in rem and can be set aside on the ground of fraud or collusion provided it is pleaded and proved by the party so alleging. (See: Lady Dinbai Dinshaw Petit and others vs. The Dominion of India and another reported in AIR 1951 Bombay 72). It is, therefore, not a pure question of law. As stated above, revocation will not operate retrospectively so as to obliterate all intermediate acts of the executor performed during the existence of the probate, however, if the intermediate acts are incompatible with the administration of the estate, they will not be protected. That the conclusiveness under section 273 is of validity and contents of the Will.

33. In S. Parthasarathy Aiyar vs. M. Subbaraya Gramany and another, reported in (AIR 1924 Madras 67) it has been held :

“…. It is not right, as has been suggested in some cases, to treat a Will of which probate has not been granted as non-existent and the property passing by intestacy. On the contrary, the Will is a perfectly valid document. The executor under it can deal with the property and give a perfectly good title though it may be that to complete that title it requires probate to be taken out at a later date ….”

34. In the case of Mt. Azimunnisa Begum vs. Sirdar Ali Khan and others (AIR 1927 Bombay 387), the facts were as follows. The plaintiff was a minor. When her father died, she was the youngest child. No citation was served on her nor any guardian ad litem appointed in the probate proceedings instituted by the executors. She applied for revocation of the probate on the ground that it was not the last Will. That the grant of the probate was against the interest of the infant. It was held that want of citation by itself will not vitiate the probate, but in the absence of a citation duly served upon guardian ad litem, it would be open to the infant on attaining majority to institute proceedings within the period prescribed by the Limitation Act for the revocation of the grant of probate. In that matter, the plaintiff alleged that probate was obtained from the probate court under cover of secrecy. The plaintiff did not lead evidence to substantiate the allegation of secrecy in obtaining the probate. She contended that the Will was ab initio void. It was held that the property had vested in the executor by virtue of the Will and even if it is afterwards detected that the Will was forged, all acts of the executor in respect of the suit premises, where bona fide purchasers are concerned, must be regarded as valid.

35. In Cherichi vs. Ittianam and others (AIR 2001 Kerala 184), it has been held that the prohibition under section 213 of Indian Succession Act is regarding establishing any right under the Will without probate and that section cannot be understood as one by which the vesting of right as per the provisions of the Will is postponed until the obtaining of probate or letters of administration. The Will takes effect on the death of the testator and what section 213 says is that the right as executor or legatee can be established in any Court only if probate is obtained. Therefore, section 213(1) does not prohibit the use of Will which is unprobated as evidence for purposes other than establishment of right as executor or legatee. Therefore, the requirement of obtaining probate becomes relevant at the time when the establishment of right as executor or legatee is sought to be made on the basis of a Will in a court of justice.

36. In Sheonath Singh vs. Madanlal reported in (AIR 1959 Raj 243), it was held that Section 213 does not vest any right. It only regulates the procedure of proving a Will. It is distinct from section 211. It lays down a rule of procedure and not of any substantive right.

37. In Mrs. Hem Nolini Judah vs. Mrs. Isolyne Sarojbashini Bose and others reported in (AIR 1962 SC 1471), it has been held that section 213 does not say that no person can claim as a legatee or executor unless he obtains a probate of the Will. It only says that no right as an executor or legatee can be established in any Court without probate.

38. In Komollochun Dutt and others vs. Nilruttun Mundle reported in (4 ILR Cal 360) it has been held that the property of the testator vests in the executor by virtue of the Will and not by virtue of the probate. The Will gives the property to the executor. The grant of probate is only a method by which a Will can be proved. When the probate is granted, it operates on the whole estate and it establishes Will from the date of death of the testator. The probate can be revoked upon any of the grounds mentioned in section 234 of the Indian Succession Act, 1865 (Section 263 of Indian Succession Act, 1925). In the said judgment, it has been observed that in cases where the probate has been given in the common form, and not in the solemn form, the probate Court may call upon the propounder to prove the Will in the presence of the objector afresh so as to give the objector an opportunity of testing the evidence in support of the Will. This judgment, therefore, lays down that even when the probate issued in the common form is revoked under section 263 the revocation operates prospectively; that on revocation parties are given an opportunity to prove the Will afresh. To the same effect is the ratio of the judgment in the case of Mt. Ramanandi Kuer vs. Mt. Kalawati Kuer reported in (AIR 1928 PC 2).

39. In the case of Akshay Kumar Pal vs. Nandalal Das reported in (ILR (1946) 1 Cal 432) it has been held that where the grant of probate is revoked, the grant does not become void ab initio and the revocation will not invalidate any previous dealing of the executor as long as they are done in due course of administration of the estate or they are with persons acting in good faith. That an administrator derives his authority from his appointment by the Court whereas an executor derives his authority from the Will. That the letters of administration confer rights on the administrator but the probate is an evidence of the pre-existing rights of the executor appointed by the Will and the probate does not confer any new right on such executor. That the vesting of the property of the deceased in the executor under section 211 is independent of the grant of probate. That section 211 does not say, with reference to an executor, that he becomes the legal representative only on obtaining probate. On the other hand, section 307 indicates that an executor can exercise the power of disposition without obtaining the probate. However, the executor must administer the estate in accordance with the Will. His acts must not be incompatible with the administration of the estate. That under section 211, the estate of the testator vests in the executor even before the grant of probate, but by virtue of section 213, the executor can establish his right in a Court on production of the probate. When a competent Court grants probate or letters of administration, it can never be absolutely sure that the deceased left no subsequent Will. There is always a possibility of subsequent Will being discovered later on. There is always a risk of fraud on the Court. However, such possibility of risk cannot indefinitely hold up the administration of the estate. Therefore, section 273 makes the grant conclusive. As soon as the grant is made, section 273 comes into play. However, the law takes note of the possibility of error, irregularity or fraud and accordingly makes provisions for revocation of grant for just cause. (section 263). If a grant is made in any of the circumstances falling in the explanation to section 263, the Court can revoke the grant. However, such revocation can only be prospective and not retrospective. In this connection, section 297 of the Act is important. That section provides that when grant of probate is revoked, all payments made bona fide to any executor under such grant before revocation shall constitute a legal discharge to the person making such payment. The object of the aforestated Scheme of the Act is to make it safe for the public to freely deal with the grantee. The theory of vesting of the estate in the executor at the moment of death of the testator, even before the Will is probated, is true enough for the administration of estate but it is subject to the qualification that the grant even if erroneously made is revocable if the circumstances in the explanation to section 263 exist. However, till the grant is revoked, the grantee is the only legal representative of the deceased and people may safely deal with such representative in good faith in due course of administration and such dealings will be protected even if the grant is subsequently revoked. Accordingly, it was held that revocation of the grant does not make the grant void ab initio and will not invalidate any intermediate acts done in good faith in due course of administration of estate.

40. In the case of Valerine Basil Pais (dead) by LRs vs. Gilbert William James Pais and another reported in (1993 (2) Kant LJ 301) it has been observed that even in cases where grant has been obtained by fraud, so long as the grant remains unrevoked, the grantee represents the estate of the deceased.

41. In the present suit, the trial Court has recorded the finding that the probate was revoked on the ground of non-citation, fraud in procuring the probate and forgery of the Will. This finding of the trial Court is perverse. On 14-5-1986, Bhabesh applied for revocation on two grounds, namely, that the will was forged and that the probate was obtained fraudulently by defendant No. 2. Vide order dated 18-9-1986, the probate Court dismissed the application of Bhabesh. On 25-3-1987, an identical application was made by Parul and Manju for revocation of the grant alleging fraud, forgery and non-citation. By order dated 9-7-1987, the probate Court revoked the grant. PW1 in his evidence has deposed that the probate was revoked on account of non-citation. Therefore, reading the aforestated orders and the evidence of PW1, it is clear that the probate was revoked only on account of non-citation. Despite this evidence, the trial Court holds that the probate was revoked on the ground of forgery and fraud apart from non-citation. In our view, this finding is unsustainable for want of evidence.

42. Learned counsel for the plaintiffs, however, submitted that the initial onus was on defendant No. 2 or defendant No. 14 to prove the genuineness of the Will. It was submitted that the will of Balai Chand was surrounded by numerous suspicious circumstances which have been taken into account by both the Courts below. In this connection, reliance was placed on the following factors :-

(i) Execution of Ex. A/1 and Ex. A/2 by defendant No. 2 as constituted attorney of Balai Chand even when Balai Chand was alive;

(ii) Affidavit of Mamta dated 25-9-1997 stating that Balai Chand was unduly influenced by defendant No. 2. That the Will was forged;

(iii) That the power of attorney was never produced by defendant No. 2 in evidence and, therefore, the act on the part of defendant No. 2 in entering into the Ex. A/1 with defendant No. 14 was with the intention of defrauding Balai Chand and his intestate heirs;

(iv) That defendant No. 2 in his evidence has deposed that Balai Chand though old was hale and hearty and, therefore, there was no reason for execution of Ex. A/1 and Ex. A/2 through the constituted attorney;

(v) That under clause (2) of Ex. A/1, the rate at which the suit premises were agreed to be sold was ` 55,000/- per kottah of land and at that rate the total consideration receivable by Balai Chand was ` 15 lacs, whereas in fact the amount received by defendant No. 2 under Ex. A/8 was ` 9,54,632/-;

(vi) That in the case of Naresh Chandra Ghosh vs. Archit Vanijya and Viniyog Pvt. Ltd. reported in (1998) 2 Cal LJ 344), the Will was found to be forged by the High Court;

(vii) That revocation was on account of forgery and fraud;

(viii) That defendants No. 15 to 20 purchased the suit premises after revocation.

43. Before dealing with each of the aforestated circumstances, we may examine the legal position.

44. In the case of Surendra Nath Chatterji vs. Jahnavi Charan Mukherji reported in (AIR 1929 Cal 484) the facts were as follows : The Will was alleged to have been executed by one Ram Lal Mukherji, dated 6th September, 1914 and the Codicil was executed by the same gentleman dated 11th September, 1920. Ram Lal died on 9th April, 1923. He was a gentleman of considerable properties and died at a good old age. It is said that he was 85 years of age at the time of his death. It is unnecessary to state in detail the members of his family at the time of his death and shortly before that as the facts have been fully set out in the judgment of the District Judge. It is sufficient to say that he was survived by four sons, Mritunjoy, Ganga Charan, Jahnavi Charan and Jahnavi Prosad and two daughters and a large number of grandchildren. He became a widower in the year 1890, and after that he went to live more or less as a recluse in a house built on a rock near the town of Monghyr in the province of Bihar. Previously he was a permanent resident of Boinchee in the district of Hoogly. The house in which he lived at the time of his death was described as Pirpahar. None of his sons lived there and it appears from the evidence that if any of them ever visited him it must have been on rare occasions. The most curious thing is that one of the sons, Ganga Charan, practiced as pleader at Monghyr and lived about 2 miles from the house of his father, but even he seems to have seldom visited his father. It was held that the propounder of a Will has to remove only such suspicious circumstances as are suggested by the objectors. In that case it was found that facts alleged by the objectors were not supported by evidence. There was no evidence of undue influence. That the evidence was that the testator had sound disposing mind. He was ill treated by his sons. The Court found that all the alleged suspicious circumstances were removed by the evidence. The Court observed that no questions were put by the objectors to the propounder of the Will regarding such circumstances. The Court found from the evidence that the testator was a strong willed person and the manner in which he was treated by his sons one cannot assume that the Will made by him was without knowing the contents.

45. Similarly, in the case of Smt. Indu Bala Bose and Ors. vs. Manindra Chandra Bose and Anr. reported in (AIR 1982 SC 133), it has been held that a circumstance would be “suspicious” when it is abnormal or is not normally expected in a normal situation or is not expected of a normal person.

46. In the light of the aforestated judgments we may now examine the evidence in this case. Balai Chand had married thrice. Jamuna pre-deceased him. When he made the Will Balai Chand had two wives and nine children. He was strong willed. He was conscious of his legal rights. He had considerable properties. During his life time, he asserted his legal rights qua the tenants. He used to litigate on every issue. He collected rent from the tenants. He filed eviction and rent collection suits against the tenants. He sued Nirmala. He had numerous cases filed against Nirmala the particulars of which are as under :

Sl.No. Suit No. of Trial Court Case No. in High Court Case No. in Supreme Court Name of PartiesIn Appeal Remarks
01 79-80 of 1954 268 and 270 of 1957 966 and 968 of 1964 Nirmala Bala Ghose vs. Balai Chand Ghose Suits were filed by Balai Chand
02 67 of 1955 269 of 1957 967 of 1964 Nirmala Bala Ghose vs. Balai Chand Ghose Suits were filed by Balai Chand
03 67 of 1976     Nirmala Bala Ghose vs. Balai Chand Ghosh Suits were filed by Balai Chand
04   M.C. 3 of 1980 in Misc. Appeal No.309 of 1978   Balai Chand Ghosh vs. Nirmala Ghosh Arindom Ghosh was substituted n place of Balai Chand.
05 2/1961 (Earlier Nos. 68/56 13/59) FA 492/62   Ramesh Ghosh vs. Balai Chand Ghosh Compromised Matter.
06 2/1961 FA 492/62   Nirmala Ghosh vs. Balai Chand Ghosh Compromised Matter.
07 111/66 180/73   Iswar Satyanarayan vs. Balai Chand Ghosh (D) through LRs. Nirmala Ghosh and others The LRs. of Balai Chand were restrained from alienating property No. 13 and 13/1 Beliaghata Road
08 4/1968     Mamta Ghosh vs. Nirmala Bala Ghosh Suit for declaration that 5 Hindustan Park is not attachable in execution.

47. Between September, 1977 and July, 1978, settlements between Balai Chand and Nirmala, Suresh and Bhabesh had taken place concerning the properties; that suit premises came to Balai Chand; that this settlement was also challenged by Ramesh which was followed by another settlement under which Ramesh got property at Lansdown Road, Calcutta. That this is not the case where one of the sons have got all the properties of the testator.

48. Apart from the aforestated facts, the Will of Balai Chand recites specifically that Balai Chand had two sons Paresh and Naresh from his first wife Jamuna; that he had five sons from his second wife; that he was at one point of time living with Nirmala and her sons in house No.13, Beliaghata Road, Calcutta; that soon thereafter Nirmala and her sons started disobeying him; that they were ungrateful to him; that he was ill-treated by them and that thereafter he has been living with Mamta and her son Arindam. In his will, the deceased has further stated that he had number of businesses; that he had various house properties in his own name and in the benami names of the sons of Nirmala; that the said sons of Nirmala had falsely claimed the properties and consequently, Balai Chand had to institute suits, in which he was declared to be the owner of the properties. In his Will, he has referred to the above settlement of September, 1977. In the circumstances, there was no question of Arindam influencing his father Balai Chand in the making of the Will bequeathing the suit premises to him.

49. The evidence further shows that during the lifetime of Balai Chand, Ex. A/1 and Ex. A/2 came to be executed. That although Ex. A/1 and Ex. A/2 were executed by defendant No.2 as the constituted attorney of Balai Chand, an amount of ` 1.25 lacs was received by Balai Chand from defendant No. 14, which is uncontroverted evidence of DW5, and which indicates that Balai Chand was aware of Ex. A/1 and that he intended to sell the suit premises to defendant No.14. Further, Ex. A/3 shows that the cheque for ` 1.25 lacs was drawn in favour of Balai Chand. Further, Balai Chand lived for almost three years after making the Will on 25-12-1977. He found Arindam to be obedient. He loved Arindam and Mamta. These basic tell-tale circumstances have not been considered by the Courts below. Both the Courts below have drawn inferences from circumstances with dead uniformity and without realistic diversity. The factors taken into account by the Courts below have been broadly indicated. However, it is important to note that in this case we are concerned with the intention of the testator. The basic error committed by the Courts below is that it has examined the alleged suspicious circumstances dehors the above tell-tale circumstances duly established by evidence and the contents of the Will viz. the strained relationship between the testator and Nirmala, Jamuna and their children, the love and affection of Balai Chand for Mamta and Arindam and lastly the strong personality of the deceased. In the light of the above circumstances, the factors relied upon by the Courts below are not relevant particularly in the context of deciding the question whether Balai Chand had approved the impugned disposition in favour of Arindam. With these findings, we may examine each of the factors taken into account by the trial Court. The trial Court has placed reliance on the affidavit of Mamta dated 25-9-1997 in which, as stated above, Mamta has alleged that the Will was forged; and that it was outcome of undue influence exercised by defendant No. 2 on Balai Chand. However, the said affidavit has been filed by Mamta at an interim stage and it is not put in evidence. On 26-11-1997, Mamta files another affidavit, in which she states that she has gone through Ex. A/1, Ex. A/2, Ex. A/8 as well as the Will and the power of attorney executed by Balai Chand in favour of Arindam. By the said affidavit, she confirms the signature of Balai Chand on the power of attorney in favour of Arindam. She also confirms the sale by Arindam in favour of defendant No. 14. DW1 in his evidence has explained that the first affidavit was filed by his mother under misconception and subsequently on going through the papers she had rectified her earlier position. This evidence has not been shaken. Therefore, the said alleged suspicious circumstance stood cleared. The next circumstance which the trial Court found to be abnormal is execution of power of attorney by Balai Chand during his lifetime. Balai Chand was 90 years of age. Negotiation of sale is a tedious and laborious task. He was hale and hearty but to negotiate and sell the property was difficult for an old man. Hence, we do not find any abnormality in the son being appointed as constituted attorney, particularly when under the Will Arindam was the legatee. The trial Court has come to the conclusion that the power of attorney was not produced in evidence by Arindam and consequently execution of Ex. A/1 by constituted attorney of Balai Chand was to defraud Balai Chand and his heirs. However, the trial Court has failed to consider the evidence of DW5 stating that ` 1.25 lacs was received by Balai Chand. In this connection, Ex. A/3 is important. It indicates payment by cheque in favour of Balai Chand of ` 1.25 lacs which has not been considered by the trial Court. It indicates that Balai Chand had knowledge of Ex. A/1 and that he had approved the agreement of sale. In the cross-examination Arindam has deposed that Balai Chand had signed the power of attorney. Arindam has denied the suggestion of Balai Chand not executing the power of attorney. Lastly, the evidence of Arindam has not been shaken on this point. The next circumstance which the trial Court takes into account is that Arindam has received payments of ` 9.54 lacs whereas under Ex. A/1 he was entitled to receive ` 15 lacs. As stated above, no suggestion was put to DW1 (Arindam) in cross-examination on this point. In the case of Surendra Nath Chatterji (supra), it has been held that the propounder must explain those circumstances which are put to him in cross-examination. In the present case, for example, there could be number of explanations. Was the price reduced to meet the cost of evicting tenants and free the suit premises from encumbrances? In the absence of allegations the trial Court could not have proceeded on the above circumstance to hold that property was sold at a lesser price. In fact there was no such plea taken by the plaintiffs. The next circumstance on which the trial Court placed reliance was revocation of probate. According to the trial Court Arindam had obtained the probate fraudulently. According to the trial Court the Will was forged. As stated above, this finding was without evidence. As stated above, the application dated 14-5-1986 by Bhabesh on the aforesaid grounds was dismissed. PW1 has stated that probate was revoked for non-citation pursuant to application by his sisters. Hence, the trial Court had given the finding without evidence. In this connection the trial Court relied upon the interim order passed by the Division Bench of the High Court in the case of Naresh Chandra Ghosh and others vs. Archit Vanijya and Viniyog Ltd. and others reported in (1998) 2 Cal LJ 344). The only question before the Division Bench of the High Court was whether defendants Nos. 15 to 20 should be restrained from raising construction and whether receiver should be appointed. In the said order, there is no finding of forgery. On the contrary, in the said order, it has been clarified that admittedly a multi-storey building has been constructed and that the plaintiffs in the partition suit in normal circumstances must be held to have knowledge of ongoing construction. That the plea of ignorance raised by the plaintiffs cannot be accepted. Under the aforestated circumstances, the inferences drawn by the trial Court are from circumstances which have not been alleged and proved. The findings are not based on evidence. The trial Court has failed to take into account the proved preponderatory circumstances and it was influenced by inconsequential matters in holding that the Will was not genuine. Before concluding, we reiterate that revocation of the probate operates prospectively; that such revocation does not obliterate bona fide transactions entered into by the executor during the pendency of the probate; that we have gone into the circumstances surrounding the Will as they were pressed into service during the course of the argument.

50. According to the impugned judgment, in addition to the above alleged suspicious circumstances taken into by the trial Court, it has been held by the High Court that Arindam got impleaded in 1982 without disclosing the probate and the conveyance; and that Arindam had fraudulently obtained the probate without serving citation on his two step-sisters. According to the High Court no steps have been taken to prove the Will even after it has been revoked as far back as 9-7-1987.

51. At the outset, we may point out the basic fallacy committed by both the Courts below. They have read the record of the case without the same being tendered in evidence. Further the findings are perfunctory. In the present case the High Court, as stated above, has given a finding that in 1982 Arindam got impleaded in the suit without disclosing the conveyance. No particulars of the order of impleadment have been given. However, on our going through the records of the case paper we found the order passed by Additional District Judge, Alipore dated 21-8-1982 in Miscellaneous Case No. 3/80 in which Balai Chand was a party as a shebait. The subject matter of Miscellaneous Case No. 3/80 was quite different. In that suit, on the demise of Balai Chand, defendant No. 2 was substituted. In the said order the civil Court has observed that Nirmala did not dispute the existence of the Will; that she was aware that Arindam was the executor under the Will. This order is partly quoted in the written statement filed by Arindam in the partition suit in support of his contention that as far back as 21-8-1982, Nirmala was aware that Balai Chand had died making a Will and yet no steps were taken to amend the plaint to that effect till 1993. Further, Ex. A/8 in the present suit concerning the suit premises was not relevant in Misc. Case No. 3/80 as the subject matter of the two cases was different. That in any event the said order dated 21-8-1982 was not put to Arindam in cross-examination. In the circumstances, the High Court erred in holding that Arindam had deliberately withheld the disclosure of the conveyance and the probate. In fact the order of additional District Judge shows that Nirmala had made it clear that she did not accept the validity of the Will. Similarly, in the present case, the High Court has given a finding that Arindam had obtained the probate fraudulently without service of citation on Mamta and Parul the two daughters of Nirmala. There is no evidence. On the contrary, as stated above, vide order dated 18-9-1986 the probate Court had rejected the application for revocation made by Bhabesh on the ground of forgery and fraud. That in his evidence Bhabesh has conceded that probate stood revoked by order dated 9-7-1987 on the ground of non-citation. That the history of the litigation, as reflected in the evidence, shows that Nirmala and her sons had fought for various properties, every inch of the way. One can understand the sons of Nirmala not being served. Here Nirmala and her sons and the sons of Jamuna were served. That the High Court erred in disbelieving Arindam when he deposed that Manju and Parul were not cited as they were not the legatees. This was due to misconception and not on account of fraud. Lastly, the High Court has observed that the Will is lying in the state of derelict without being probated. Here also one finds that after revocation, Arindam applied for revival of proceedings; that order of revival was passed and it was challenged by one of the other sons of Balai Chand. Therefore, these circumstances which indicate the strained relationship between the parties, their propensity to litigate at every stage have not been considered by the Courts below. In these circumstances, we have no hesitation in saying that the findings are based on conjectures and suspicion and that relevant circumstances have not been taken into account.

(II) WAS THE DISPOSITION, DURING THE PENDENCY OF THE probate FOUNDED ON FRAUD OR COLLUSION BETWEEN THE EXECUTOR AND THE DEVELOPERS?

AND

(III) WAS DEFENDANT NO.14 BONA FIDE PURCHASER FOR VALUE WITHOUT NOTICE? IF SO, WHETHER SUBSEQUENT ALIENATION BY DEFENDANT Nos.14 IN FAVOUR OF DEFENDANTS No.15 TO 20 IS VALID AND BINDING ON THE INTESTATE HEIRS OF BALAI CHAND?

52. As the above two points are interconnected, we propose to deal with them jointly.

53. As stated earlier, the grant of probate establishes the genuineness of the Will and the person in whose favour the probate is granted is entitled to convey the title arising out of the Will probated by the Court. It may happen that the propounder did not take appropriate steps, by mistake, to notify the other heirs before obtaining probate. But the third party who acts bona fide and deals with the grantee cannot be made answerable to the fraud or mistakes committed by the propounder (See: Valerine Basil Pais (dead) by LRs. vs. Gilbert William James Pais and another reported in 1993 (2) Kar LJ 301).

54. Applying the above tests to the evidence on record we find that Balai Chand had strained relationship with his first two wives; that he had differences with his sons from the first two wives; that there were litigations writ galore between them; that Balai Chand loved Arindam and that he had bequeathed the suit premises to Arindam under the above Will. Further, the sons of Nirmala have fought legal battles on every issue both during the life time of Balai Chand and even after his demise. Even after revocation, Ramesh had objected to revival of probate proceedings. These circumstances are relevant because the main ground on which the Courts below have proceeded to declare Ex. A/8 as fictitious, although there is no plea, was the speed with which Ex. A/8 came about. According to the impugned judgments the manner in which suit No. 310/81 was filed without impleading the other heirs and the manner in which Ex. A/8 came to be executed on 4-8-1981 after the grant on 31-7-1981, without reference to the consent decree dated 3-8-1981 in suit No. 310/81, proved that Ex.A/8 was collusive and fictitious having being entered into to defeat the claims of the intestate heirs. These findings of the Courts below are without consideration of the relevant circumstances. After the Will dated 25-12-1977, Ex. A/1 was executed on 12-3-1979 followed by supplemental agreement dated 21-7-1980 (Ex.A/2) under which Balai Chand agreed to sell the suit premises to defendant No. 14. It is true that Ex. A/1 and Ex. A/2 have been signed by Arindam as constituted attorney of Balai Chand. However, it would not be correct to say that Balai Chand was not aware of Ex. A/1 and Ex. A/2. In this connection, DW1 has deposed that ` 1.25 lacs was received by him under the said agreement, Ex. A/1. That as can be seen from Ex. A/3, the cheque for ` 1.25 lacs was drawn in favour of Balai Chand. The said amount was credited to his account. This evidence is not considered by the Courts below. This evidence was clinching as Ex. A/8 has been executed pursuant to Ex. A/1 and Ex. A/2 which were entered into during the lifetime of Balai Chand. That Ex. A/1 and Ex. A/2 were, therefore, binding on the estate of Balai Chand and his other heirs. Under the Will the suit premises have been bequeathed to Arindam. Hence, both the Courts erred in holding that Ex. A/8 was fictitious having been entered into to defeat the claim of other heirs.

55. Now coming to the finding of the Courts below that the haste with which Ex. A/8 was entered into indicated collusion between Arindam and the Developers and consequently both the Courts below have held that the impugned Ex. A/8 was fraudulent and not binding on the other heirs. In the circumstances both the Courts below have held that defendant No. 14 was a privy to the fraud in execution of Ex. A/8. These findings are given without any plea of fraud or collusion against defendant No. 14. There is no issue framed by the trial Court. The trial Court has framed the issue of collusion against defendants Nos. 15 to 20. In the plaint, collusion is alleged between defendants Nos. 1 and 2. In the impugned judgment of the Division Bench of the High Court, great stress is laid on suit No. 310/81 being filed without impleading the other heirs in coming to the conclusion that the developers were not bona fide purchasers and that they had knowledge of the alleged fraud by Arindam in obtaining the probate without service of citation on Manju and Parul. However, while returning the above findings, both the Courts below have failed to notice the evidence on record. Suit No. 310/81 was filed on 21-4-1981 prior to the partition suit. It was filed to enforce Ex. A/1 dated 12-3-1979. Suit No. 310/81 was filed after the Will and before Arindam could obtain the probate. As stated above, Arindam was the executor under the Will. He was a legatee under the Will. At the time of the filing of the suit the Will was in existence. At the time of the suit, Ex. A/1 and Ex. A/2 were there. As held, the executor has authority under the Will to alienate. That he need not wait till the probate. For filing the said suit No. 310/81, probate was not required. However, before the decree, probate had been obtained. In the circumstances, without allegation of collusion against developers, both the Courts erred in holding, without evidence, that Ex. A/8 was collusive as it was got executed expeditiously. Here also, we find that relevant evidence has not been taken into account. The evidence shows the propensity of the family to litigate on every issue. The developers had invested huge amount not only in the payment of consideration but also by way of costs incurred to free the suit premises from requisition, acquisition and other encumbrances including eviction of tenants. Under the above circumstances, after the probate, the developers were bound to expedite the sale. Even according to the Division Bench of the High Court, Arindam was not reliable. In the circumstances, without evidence, the Courts below erred on the basis of expedition of sale that Ex. A/8 was fictitious and based on collusion between Arindam and defendant No. 14. Similarly, for the aforestated reasons, both the Courts below erred in holding that probate was obtained fraudulently without effecting service on Parul and Manju.

56. Lastly, both the Courts below have failed to notice the provisions of section 41 of Transfer of Property Act.

57. In the case of Gurbaksh Singh vs. Nikka Singh and another reported in (AIR 1963 SC 1917) it has been held that section 41 is an exception to the general rule that a person cannot confer a better title than what he has. Being an exception the onus is on the transferee to show that the transferor was the ostensible owner of the property and that the transferee had after taking reasonable care to ascertain that the transferor had power to transfer, acted in good faith.

58. In the case of Seshumull M. Shah vs. Sayed Abdul Rashid and others reported in (AIR 1991 Karnataka 273), it has been held that in every case, where a transferee for valuable consideration seeks protection under section 41 of the Transfer of Property Act, the transferee must show that the real owner had permitted the apparent owner either by express words, consent or conduct to transfer the property in favour of the transferee. In other words, it must be shown that with the consent of the true owner, the ostensible owner was able to represent himself as the owner of the property to the purchaser for value without notice.

59. Applying the above tests to the facts and circumstances of the present case, we find, on the basis of the evidence on record, that the suit for partition was filed on 21-9-1981. Nirmala was aware of the Will as early as 21-8-1982. She did not apply for letters of administration. She did not challenge the Will. Between 21-9-1981 to 22-6-1993 (when the plaint was amended) the developers demolished the old building. They constructed a multi-storey building. They got freed the property from all encumbrances stated herein above. In the circumstances, it cannot be said that the other heirs of Balai Chand had no knowledge of the aforestated events. [See: Order of the Division Bench in Naresh Chandra Ghosh and others vs. Archit Vanijya and Viniyog Ltd. and others reported in (1998) 2 Cal LJ 344]. In our view, the test laid down in the matter of applicability of section 41 of the Transfer of Property Act is squarely applicable to the facts of the present case. The intestate heirs of Balai Chand allowed Arindam to represent to the developers that he was the owner of the suit premises. It is established by the conduct of the inaction on the part of the intestate heirs of Balai Chand. Hence, we hold that defendant No.14 was bona fide purchaser for value.

60. Before concluding, we may refer to the judgment of the Madras High Court in the case of G.F.F. Foulkes and others vs. A.S. Suppan Chettiar and another reported in (AIR 1951 Madras 296) in which it has been held that if the nature of the transaction gives notice to the purchaser that the executor was disposing of the assets contrary to the Will then the purchaser is said to have participated with the executor in an improper conversion of the estate of the deceased and in such a case the sale would be invalid. In the present case, under the Will, the suit premises have been bequeathed to Arindam who is also appointed as an executor. Therefore, there is nothing to suggest that Ex. A/8 was incompatible with the administration of the estate of Balai Chand. In the circumstances, we hold that defendant No. 14 was a bona fide purchaser for value and the alienation effected by defendant No. 14 in favour of defendants Nos.15 to 20 was valid.

61. Lastly, we may refer to the preliminary objection advanced on behalf of the plaintiffs. When the matter came up for final hearing before the Division Bench of the High Court, an enquiry was made by the learned Judges from the subsequent purchasers whether they would like to prove the Will or await the decision in the probate case before proceeding with the appeals arising out of the judgment of the trial Court granting a preliminary decree for partition. At that stage, defendants Nos. 14 to 20 stated that they wanted to proceed with the matter and that they did not want to await the decision of the probate Court. The learned counsel appearing on behalf of the plaintiffs submitted that in view of the aforestated statement made on behalf of the defendants Nos. 14 to 20, it was not open to the said defendants to rely upon the probate or the Will for the purposes of showing that they were bona fide purchasers for value without notice and that their purchase was good and valid as defendant No. 2 had a good title to convey on the basis of the Will and the probate. Before us, it has been submitted on behalf of the plaintiffs that if a particular concession is recorded in the judgment of the High Court, the party aggrieved cannot thereafter assail the same. We do not find any merit in this argument. Firstly, before the trial Court, defendant No. 14 and defendants Nos. 15 to 20 had asked for stay of the partition suit pending decision by the probate Court. It was objected to by the plaintiffs. The objection of the plaintiffs was upheld and the matter was decided against the defendants. Secondly, before the trial Court, it was the plaintiffs who had relied upon the alleged suspicious circumstances surrounding the Will. In the circumstances, defendants Nos. 14 to 20 cannot be prevented from relying on the probate and the Will.

62. We are mindful of the fact that generally this Court does not interfere with the concurrent findings recorded by the Courts below in civil appeals by way of special leave under Article 136 of the Constitution of India. However, in cases where the Courts below have given findings on documents and on the basis of assumption and inferences founded on facts and circumstances, which in themselves offer no direct or positive support for the conclusion reached, it is our incumbent duty to review such inferential process. In such cases, the right of this Court to review such inferential process cannot be denied. It is well settled that inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not with dead uniformity. We have, therefore, interfered with the concurrent findings recorded by the Courts below as we find that in the present case, findings have been recorded on fraud and collusion in favour of the plaintiffs, who have not alleged fraud or collusion supported by the particulars.

63. For the reasons stated above, the appeals succeed and are allowed. The judgment and decree of both the Courts below are set aside and the suit for partition stands dismissed. Interim order, if any, against the appellants stands vacated.

CIVIL APPEAL Nos. 6871-6873 OF 2003

64. For reasons given in our judgment allowing Civil Appeals Nos. 6258 and 6259 of 2000 and in view of our finding that the conveyance dated 4-8-1981 executed by Arindam in favour of Crystal Developers was valid and in view of our finding that the Crystal Developers were bona fide purchasers for value, these appeals have become infructuous and the same are disposed of accordingly.

65. There shall be no order as to costs in all the appeals.

 

Civil Court has no jurisdiction to impugn the grant of probate by the court of competent jurisdiction.

18-03-1993

Supreme Court-min

Chiranjilal Shrilal Goenka (Deceased) through LRs Versus Jasjit Singh and others

The grant of a Probate by Court of competent jurisdiction is in the nature of a proceeding in rem. So long as the order remains in force it is conclusive as to the due execution and validity of the will unless it is duly revoked as per law. It binds not only upon all the parties made before the court but also upon all other persons in all proceedings arising out of the will or claims under or connected therewith.

AIR 1993 SCW 1439 : JT 1993 (2) SC 341 : (1993) 2 SCALE 146 : (1993) 2 SCC 507 : (1993) 2 SCR 454

(SUPREME COURT OF INDIA)

Chiranjilal Shrilal Goenka (Deceased) through LRs Appellant
Versus
Jasjit Singh and others Respondent

(Before : K. Ramaswamy And R. M. Sahai, JJ.)

I.A. No. 3 of 1992 in Civil Appeal No. 723 of 1973, Decided on : 18-03-1993.

Succession Act, 1925—Sections 213 and 276—Civil Procedure Code, 1908—Section 2(11), Order 22, Rule 3, Order 22, Rule 11, Order 22, Rule 4, Section 50 and Order 22, Rule 10—Hindu Succession Act, 1956—Sections 3(f) and 8.

Counsel for Parties:

Satish Chandra, Senior Adv., Pramod B. Agarwala and Mohinder Rupral, Advs

V.R. Reddy, Additional Solicitor General, P. Chidambaram, Senior Adv., Syed Akhtar, C.L. Sahu, R.CBhalla, P. Parameswaran, C.V.S. Rao, K. Swamy and E.C. Agarwala, Advs.

Judgment

K. Ramaswamy, J—Shri Chiranjilal Shrilal Goenka was involved in several suits and one of which is the pending appeal at his behest. He died on November 25, 1985 leaving behind last Will dated October 29, 1982 said to have been executed in which he appointed his younger daughter Mrs. Sushila N. Rungta as sole executrix of his Will. Radhey Shyam claims to be the adopted son of Shri C.S. Goenka, Radhey Shyam is the natural son of Shri Mangal Chand Kedia and Mrs. Sita another daughter of Sri C.S. Goenka. The applicant, executrix; Radhey Shyam and his wife filed substitution applications under Order 22 Rule 3, CPC setting up rival claims. When the dispute arose as to who would represent the estate of Shri C.S. Goneka, by order dated October 7, 1991 has Court brought all the three on record as legal representatives. By further order dated November 1, 1991 this Court passed the following order :

“By consent of parties Justice V.S. Deshpande, retired Chief Justice of the Bombay High Court is appointed as arbitrator to settle the dispute as to who would be the legal heirs to the estate of late Chiranjilal Shrilal Goenka.”

2. The rest of the order is not necessary for the purpose of this case, hence omitted, pursuant thereto Shri Justice V.S. Deshpande entered upon the arbitration. Preceding the order counsel for Sri Radhey Shyam had enclosed a letter giving details of all the pending suits and item No. 19, Suit No. 65 of 1985, titled S. N. Rungta vs. R.C. Goenka, was one such case. The schedule of the suits was annexed to the order of appointment of the arbitrator. On filing the respective pleadings, the arbitrator framed diverse issues. Issues Nos. 1 and 2 relate to two Will and are as under :

“1. Does Claimant No. 1 prove execution of the Will dated 29th (28th) October, 1982 and prove the same to be the last and genuine Will of late Shri G.S. Goenka.

2. If not does she prove the execution of the Will dated 4-7-1978 and prove the same to be the last and genuine will of the late Shri G.S. Goenka”.

3. Simultaneously proceedings in the probate suit is being pursued in Bombay High Court wherein the learned Judge, on application, expressed doubt whether arbitrator has jurisdiction to decide probate suit. Similarly, on application made before the arbitrator seeking clarification, he too had stated that when the appointment of him as arbitrator was made and all the pending proceedings were referred to in the schedule, it would be assumed that this Court applied its mind and referred to him the probate suit as well but he cannot give any clarification in that behalf. It would be expedient to the applicant to seek clarification from this Court. Thus the prayers in the application are :

“A. that this Hon’ble Court may be pleased to allow the applicant to proceed with the Probate Suit No. 65 of 1987 pending before the Hon’ble High Court of Bombay in accordance with law; and

B. to pass such order and other orders as this Hon’ble Court may deem fit and proper in the circumstances”.

4. Shri Satish Chandra, learned Senior Counsel for the applicant contended, placing reliance on Gopi Rai vs. B.N. Rai, AIR 1930 ALL 840, Ghellabhai vs. Nandubhai, (1896) ILR 21 Bom 335 (337) and Manmohini Guha vs. Ganga Chandra Das, (1904) ILR 31 Cal 357, that probate Court has exclusive jurisdiction to grant probate of the Will to the applicant for due implementation of the directions contained in the Will as the executrix. That issue cannot be referred to arbitration and the arbitrator thereby is devoid of jurisdiction to decide issue Nos. 1 and 2. He also further contended that the applicant had not consented to refer the probate suit for arbitration.

5. Shri P. Chidambaram, learned Senior Counsel for the respondents contended that preceding the order of this Court dated November 1, 1991, the counsel for the respondents addressed a letter to the counsel for the petitioner including the probate suit for reference to arbitration. This was to obviate, the litigation pending in all the Courts as to who are the legal heirs of Shri C.S. Goenka. Thereafter this Court appointed Shri Justice S vs. Deshpande. The contention, therefore, of the applicant that she did not consent to refer the probate suit for arbitration is an afterthought and cannot be accepted. He further contended that this Court, with a view to put an end to the litigation in all the suits pending in different Courts, appointed the arbitrator to decide all the disputes in pending suits so that it would bind them. The arbitrator had accordingly framed Issue Nos. 1 and 2. referred to herein before which pertinently relate to the Wills in the probate suit along with other suits. Therefore, the arbitrator alone has got jurisdiction. The award of the arbitrator would be subject to approval or disapproval by this Hon’ble Court and on putting its seal it would bind all the parties and the Courts including the probate Court. Therefore, it is expedient that instead of parallel proceedings before the probate Court and the arbitrator to be permitted to continues it is desirable that the arbitrator should decide issues Nos. 1 and 2 with other issues and determine as to who would be the legal heirs and his decision would be binding in the probate suit. If any clarification is necessary it may be indicated accordingly.

6. Having given our anxious consideration we will proceed further in deciding the scope and effect of the order passed by this Court. As seen the order of reference to the arbitrator relates “to settle dispute as to who would be the legal heirs to the estate of Shri C.S. Goenka”. Section 2(11) of CPC Act 5 of 1908 defines legal representatives means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is Sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued. Order 22, Rule 3 says that if one or two or more plaintiffs die and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiffs dies and the right to sue survives, the Court on an application made in this behalf, shall cause the legal representatives of the deceased plaintiff to be made a party and shall proceed with the suit. Mutatis mutandis by operation of Order 22, Rule 11 this rule applies to the appellants at the appeal stage. Similarly, Order 22, Rule 4 applies in the case of death of one of several defendants or of sole defendant and in case of a dispute under Rule 5 such a question Shall be determined by the Court.

7. Inheritance is in some sort a legal and fictitious continuation of the personality of the dead man, for the representation is in some sort identified by the law with him who he represents. The rights which the dead man can no longer own or exercise in propria persona and the obligations which he can no longer in propria persona fulfil, he owns, exercises and fulfils in the person of a living substitute. To this extent, and in this fiction, it may be said that legal personality of a man survives his natural personality, until his obligations being duly performed, and his property duly disposed of, his representation among the living is no longer called for.

8. In Black’s Law Dictionary the meaning of the word ‘Legal Representative’ is: The term in its broadest sense means one who stands in place of, and represents the interests of another. A person who oversees the legal affairs of another. Examples include the executors or administrator of an estate and a Court appointed guardian of a minor or incompetent person.

9. Term “legal representative” which is almost always held to be synonymous with term “personal representative”, means in accident cases, member of family entitled to benefits under wrongful death statute ‘Unsatisfied claim and judgment fund’. In The Andhra Bank Ltd. vs. R. Srinivasan, (1963) 1 Andh WR (SC) 14, this Court considered the question whether the legatee under the Will is the legal representative within the meaning of Section 2(11) of the Code. It was held that it is well known that the expression “Legal Representative” had not been defined in the Code of 1882 and that led to a difference of judicial opinion as to its denotation. Considering the case law developed in that behalf it was held that respondents 2 to 12, the legatees under the Will of the estate are legal representatives of the deceased Raja Bahadur and so it follows that the estate of the deceased was sufficiently represented by them when the judgments were pronounced.

10. In The Official Liquidator vs. Parthasarathi Sinha, AIR 1983 SC 188, this Court considered whether the legal representative would be bound by the liability for misfeasance proceeding against the deceased. While considering that question under Section 50, CPC this Court held that the legal representative, of course, would not be liable for any sum beyond the value of the estate of the deceased in his hands. Mulla on CPC 14th Ed., Vol. 1 at p. 27 stated that a person on whom the estate of the deceased devolves would be his legal representatives even if he is not in actual possession of the estate. It includes heirs and also persons who without title either as executors, administrators were in possession of the estate of the deceased. It is, therefore, clear that the term legal representative is wide and inclusive of not only the heirs but also intermeddlers of the estate of the deceased as well as a person who in law represents the estate of the deceased. It is not necessarily confined to heirs alone. The executor, administrators, assigns or persons acquired interest by devolution under Order 22, Rule 10 or legatee under a Will, are legal representatives.

11. Section 3(f) of the Hindu Succession Act, 1956 defines “heirs” means any person, male or female who is entitled to succeed to the property of an intestate under this Act. Section 8 thereof provides that the property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter ‘Chapter II’ (Intestate succession) firstly upon the heirs, being the relatives specified in Class I of the Schedule……..Schedule provides Class I heirs are Son, daughter, widow, mother…….. Thus under the personal law of Hindu Succession Act, if a Hindu dies intestate the heirs either male or female specified in Schedule I Class I, are heirs and succeed to the estate as per law. In their absence, the next class or classes are entitled to succeed to the property of an intestate under the Act. In Sudama Devi vs. Jogendra Choudhary, AIR 1987 Patna 239, (FB) considered the question whether father of the minor in possession of his property and who himself was a party to the suit along with the minor is legal representative. The minor died. The father was held per majority to be legal representative under Section 2(11) of the Code as an intermeddler. It must therefore be held that not only that Class I heirs under Section 8 read with Schedule of the Hindu Succession Act but also the executor of the Will of the deceased Goenka are legal representatives within the meaning of Section 2(11) of the Code.

12. Section 213 of the Indian Succession Act (Act 39 of 1925) for short ‘the Succession Act’ provides right to the executor to obtain probate of the Will thus :-

“(1) No right as executor…..can be established in any Court of Justice; unless court of competent jurisdiction in (India) has granted probate of the Will under which the right is claimed…. with a copy of the Will annexed. By operation of Section 2(1) only in the case of wills made by any Hindu………where such Wills are of the classes specified in Cls. (a) and (b) of Sec. 57…. Section 57 provides that the provisions of part which are set out in Schedule III, shall, subject to the restrictions and modifications specified therein apply – (a) to all Wills……made by any Hindu, on or after the first day of September, 1870, within the local limits of the ordinary original civil jurisdiction of the High Court of Judicature at Madras and Bombay….. (c) to all Wills and codicils made by any Hindu…..on or after the first day of January, 1927, to which those provisions are not applied by Cls. (a) and (b). In other places the Dist. Court or Court to whom the power is delegated alone are entitled to grant probate.

13. Section 276 provides the procedure to obtain probate, namely :- (1) application for probate with the will annexed, shall be made by a petition distinctly written in English……. the Will as the case may be, the particulars are the details mentioned in Cls. (a) to (b) and further details provided in sub-section (2) and (3, the mention of the details whereof are not material for the purpose of this case. The petition shall be verified in the manner prescribed under S. 280 and also further to be verified by at least one of the witnesses to the will in the manner and to the affect specified therein. The Caveator is entitled to object to its grant by operation of Section 284……. When it is contested Section 295 directs that probate proceedings shall take, as nearly as may be, the form of a regular suit, according to the provisions of C.P.C. and the petitioner for probate…. shall be the plaintiff and the person who had appeared to oppose the grant shall be the defendant. Section 217 expressly provides that save as otherwise provided by this Act or by any other law for the time being in force, all grants of probate…….. with the Will annexed ……. shall be made or carried out, as the case may be, in accordance with the provisions of Part IX. Section 222 declares that (1) Probate shall be granted only to an executor appointed by the will. (2) The appointment may be expressed or by necessary implication. S. 223 prohibits grant of probates to the persons specified therein. S. 224 gives power to appoint several executors. Section 227 declares the effect of probate thus:- Probate of a will when granted establishes the will from the death of the testator, and renders valid all intermediate acts of the executor as such. Section 248 envisages grant of probate for special purposes, namely, if an executor is appointed for any limited purpose specified in the will, the probate shall be limited to that purpose, and if he should appoint an attorney…. with the will annexed, shall be limited accordingly.

14. Section 273 declares conclusiveness of probate thus :- Probate shall have the effect over all the property and estate movable or immovable, of the deceased, throughout the State in which the same is or are granted, and shall be conclusive as to the representative title against the debtors of the deceased, and all persons holding property which belongs to him, and shall afford full indemnity to all debtors, paying their debts and all persons delivering up such property to the person to whom such probate have been granted. The further details are not necessary for the purpose of this date. Under S. 294 it shall be the duty of the court to preserve original wills S. 299 gives right of appeals against an order or the decree of the court of probate. By operation of S. 211(1) the executor of a deceased person is his legal representative for all purposes, and all the property of the deceased person vests in him as such.

15. In Ishwardeo Narain Singh vs. Smt. Kanta Devi, AIR 1954 SC 280 this court held that the court of probate is only concerned with the question as to whether the document put forward as the last will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution the testator had sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the Probate Court. Therefore the only issue in a probate proceeding relates to the genuineness and due execution of the will and the court itself is under duty to determine it and preserve the original will in its custody. The Succession Act is a self contained code in so far as the question of making an application for probate, grant or refusal of probate or an appeal carried against the decision of the probate court. This is clearly manifested in the fascicule of the provision of Act. The probate proceedings shall be conducted by the probate court in the manner prescribed in the Act and in no other ways. The grant of probate with a copy of the will annexed establishes conclusively as to the appointment of the executor and the valid execution of the will. Thus it does no more than establish the factum of the will and the legal character of the executor. Probate court does not decide any question of title or of the existence of the property itself.

16. The grant of a Probate by Court of competent jurisdiction is in the nature of a proceeding in rem. So long as the order remains in force it is conclusive as to the due execution and validity of the will unless it is duly revoked as per law. It binds not only upon all the parties made before the court but also upon all other persons in all proceedings arising out of the will or claims under or connected therewith. The decision of the Probate Court, therefore, is the judgment in rem. The probate granted by the competent court is conclusive of the validity of the will until it is revoked and no evidence can be admitted to impeach it except in a proceeding taken for revoking the probate. In Sheoparsan Singh vs. Ramnandan Prasad Singh (1916) ILR 43 Cal 694, the judicial committee was to consider whether the will which had been affirmed by a Court of competent jurisdiction, would not be impugned in a court exercising original jurisdiction (Civil Court) in suit to declare the grant of probate illegal etc. The Privy Council held that the Civil Court has no jurisdiction to impugn the grant of probate by the court of competent jurisdiction. In that case the subordinate court of Muzafarbad was held to be had no jurisdiction to question the validity of the probate granted by the Calcutta High Court. In Narbheram Jivram vs. Jevallabh Harjivan AIR 1933 Bom 469, probate was granted by the High Court exercising probate jurisdiction. A civil suit on the Original Side was filed seeking apart from questioning the probate, also other reliefs. The High Court held that when a probate was granted, it operates upon the whole estate and establishes the will from the death of the testator. Probate is conclusive evidence not only of the factum, but also of the validity of the will and after the probate has been granted, it is incumbent on a person who wants to have the will declared null and void, to have the probate revoked before proceeding further. That could be done only before the Probate Court and not on the original side of the High Court. When a request was made to transfer the suit to the Probate Court, the learned Judge declined to grant the relief and stayed the proceeding on the original side. Thus it is conclusive that the court of probate alone had jurisdiction and is competent to grant probate to the will annexed to the petition in the manner prescribed under the Succession Act. The court alone is competent to deal with the probate proceedings and to grant or refuse probate of the annexed will. It should keep the original will in its custody. The probate thus granted is conclusive unless it is revoked. It is a judgment in rem.

17. We agree with Mr. Chidambaram that the applicant had consented to refer the dispute for arbitration of dispute in the pending probate proceedings, but consent cannot confer jurisdiction nor an estoppel against statute. The other legatees in the will were not parties to it. In A. R. Antulay vs. R. S. Nayak, (1988) 2 SCC 602, when a Constitution Bench directed the High Court Judge to try the offences under the Prevention of Corruption Act with which the petitioner therein was charged and the trial was being proceeded with, he questioned by way of writ petition the jurisdiction of this Court to give such a direction. A Bench of Seven Judges per majority construed meaning of the word ‘jurisdiction’, Mukherjee, J. as he then was, speaking per himself. Oza and Natarajan, JJ. held that the power to create or enlarge jurisdiction is legislative in character. So also the power to confer a right of appeal or to take away a right of appeal. The Parliament alone can do it by law and no Court, whether superior or inferior or both combine, can enlarge the jurisdiction of a Court and divest a person of his rights of appeal or revision. Ranganath Misra, J. as he then was, held that jurisdiction comes solely from the law of the land and cannot be exercised otherwise. In this country, jurisdiction can be exercised only when provided for either in the Constitution or in the laws made by the Legislature. Jurisdiction is thus the authority or power of the Court to deal with a matter and make an order carrying binding force in the facts. Oza, J. supplementing the question held that the jurisdiction to try a case could only be conferred by law enacted by the legislature. The Supreme Court could not confer jurisdiction if it does not exist in law. Ray, J. held that the Court cannot confer a jurisdiction on itself which is not provided in the law. In the dissenting opinion Venkatachaliah, J. as he then was to lay down that the expression jurisdiction or prior determination is a “verbal coat of many colours”. In the case of a Tribunal, an error of law might become not merely an error in jurisdiction but might partake of the character of an error of jurisdiction. But, otherwise, jurisdiction is a ‘legal shelter’ and a power to bind despite a possible error in the decision. The existence of jurisdiction does not depend on the correctness of its exercise. The authority to decide embodies a privilege to bind despite error, a privilege which is inherent in and indispensable to every judicial function. The characteristic attribute of a judicial act is that it binds whether it be right or it be wrong. Thus this Court laid down as an authoritative proposition of law that the jurisdiction could be conferred by statute and this Court cannot confer jurisdiction or an authority on a tribunal. In that case this Court held that Constitution Bench has no power to give direction contrary to Criminal Law Amendment Act, 1952. The direction per majority was held to be void.

18. It is settled law that a decree passed by a court without jurisdiction on the subject matter or on the grounds on which the decree made which goes to the root of its jurisdiction or lacks inherent jurisdiction is a coram non judice. A decree passed by such a court is a nullity and is non est. Its invalidity can be set up whenever it is sought to be enforced or is acted upon as a foundation for a right, even at the stage of execution or in collateral proceedings. The defect of jurisdiction strikes at the very authority of the court to pass decree which cannot be cured by consent or waiver of the party. In Bahadur Singh vs. Muni Subrat Dass, (1969) 2 SCR 432 an eviction petition was filed under the Rent Control Act on the ground of nuisance. The dispute was referred to the arbitration. An award was made directing the tenant to run the workshop up to a specified time and thereafter to remove the machinery and to deliver vacant possession to the landlord. The award was signed by the arbitrators, the tenant and the landlord. It was filed in the court. A judgment and decree were passed in terms of the award. On expiry of the time and when the tenant did not remove the machinery nor delivered vacant possession, execution was levied under Delhi and Ajmer Rent Control Act. It was held that a decree passed in contravention of Delhi and Ajmer Rent Control Act was void and the landlord could not execute the decree. The same view was reiterated in Smt. Kaushalya Devi vs. K. L. Bansal, AIR 1970 SC 838. In Ferozi Lal Jain vs. Man Mal, AIR 1970 SC 794, a compromise dehors grounds for eviction was arrived at between the parties under S. 13 of the Delhi and Ajmer Rent Control Act. A decree in terms thereof was passed. The possession was not delivered and execution was laid. It was held that the decree was nullity and, therefore, the tenant could not be evicted. In Sushil Kumar Mehta vs. Gobind Ram Bohra (dead) through his LRs., JT 1989 Suppl. SC 329 the Civil Court decreed eviction but the building was governed by Haryana Urban (Control of Rent and Eviction) Act, 11 of 1973. It was held that the decree was without jurisdiction and its nullity can be raised in execution. In Union of India vs. Ajit Mehta and Associates, Pune, AIR 1990 Bombay 45, a Division Bench to Which Sawant, J. as he then was, a member was to consider whether the validity of the award could be questioned on jurisdictional issue under S. 30 of the Arbitration Act. The Division Bench held that Clause 70 of the Contract provided that the Chief Engineer shall appoint an engineer officer to be sole arbitrator and unless both parties agree in writing such a reference shall not take place until after completion of the works or termination or determination of the Contract. Pursuant to this contract under S. 8 of the Act, an Arbitrator was appointed and award was made. Its validity was questioned under S.30 thereof. The Division Bench considering the scope of Ss. 8 and 20(4) of the Act and on review of the case law held that S. 8 cannot be invoked for appointment of an Arbitrator unilaterally but be available only under S. 20(4) of the Act. Therefore, the very appointment of the Arbitrator without consent of both parties was held void being without jurisdiction. The Arbitrator so appointed inherently lacked jurisdiction and hence the award made by such Arbitrator is non est. In Ghellabhai’s case (supra) Sir C. Farran, Kt. C.J. of Bombay High Court held that the Probate Court alone is to determine whether probate of an alleged Will shall issue to the executor named in it and that the executor has no power to refer the question of execution of Will to arbitration. It was also held that the executor having propounded a Will, and applied for probate, a caveat was filed denying the execution of the alleged Will, and the matter was duly registered as a suit, the executor and the caveatrix subsequently cannot refer the dispute to arbitration, signing a submission paper, but such an award made pursuant thereto was held to be without jurisdiction.

19. In Gopi Rai’s case, (supra), Sulaiman, J. as he then was, speaking for the Division Bench held that the Civil Court has no jurisdiction to allow the dispute relating to the genuineness of a Will in a probate proceedings pending before him to be referred to the arbitration of an arbitrator. He has got to be specified that the Will is a genuine document before the order of granting probate is passed. He cannot delegate those functions to a private individual and decide the point through him. Similar was the view laid in Manmohini Guha’s case, (supra) Saroda Kanto Das vs. Gobindo Das (1910) 6 Ind Cos, 912 and Khelawati vs. Chet Ram Khub Ram, AIR 1952 Punjab 67. When the plea of estoppel was raised, Sulaiman, J. in Gopi Rai’s case (supra) held that “We cannot hold that there is any estoppel against Gopi Rai on this question of jurisdiction. That is a matter which we can take into account only when ordering costs. “The decision in Nalla Ramudamma vs. Nalla Kasi Naidu, AIR 1945 Madras 269 relied on by Shri Chidambaram does not help his clients. Therein the question was the matrimonial dispute. The Arbitrator had decided at the request of the parties and a decree was passed. It was held that the dispute would come under S. 21 of the Arbitration Act. The question of jurisdiction was not raised therein. Equally the decision in Mr. Mahasunder Kuer vs. Ram Ratan Prasad Sahi, AIR 1916 Patna 382, is also of little assistance. The question of adoption, it was held, cannot be decided in the probate proceedings.

20. On a conspectus of the above legal scenario we conclude that the Probate Court has been conferred with exclusive jurisdiction to grant probate of the Will of the deceased annexed to the petition (suit; on grant or refusal thereof, it has to preserve the original Will produced before it. The grant of probate is final subject to appeal, if any, or revocation if made in terms of the provisions of the Succession Act. It is a judgment in rem and conclusive and binds not only the parties but also the entire world. The award deprives the parties of statutory right of appeal provided under S. 299. Thus the necessary conclusion is that the Probate Court alone has exclusive jurisdiction and the Civil Court on original side or the Arbitrator does not get jurisdiction, even if consented to by the parties to adjudicate upon the proof or validity of the Will propounded by the executrix, the applicant. It is already seen that the executrix was nominated expressly in the Will is a legal representative entitled to represent the Estate of the deceased but the heirs cannot get any probate before the Probate Court. They are entitled only to resist the claim of the executrix of the execution and genuineness of the Will. The grant of probate gives the executrix the right to represent the estate of the deceased, the subject-matter in other proceedings. We make it clear that our exposition of law is only for the purpose of finding the jurisdiction of the arbitrator and not an expression of opinion on merits in the probate suit.

21. From this perspective we are constrained to conclude that the Arbitrator cannot proceed with the probate suit to decide the dispute in issue Nos. 1 and 2 framed by him. Under these circumstances the only course open in the case is that the High Court is requested to proceed with the probate suit No. 65/85 pending on the probate jurisdiction of the High Court of Bombay and decide the same as expeditiously as possible. The learned Judge is requested to fix the date and proceed day-to-day at his convenience till it is concluded and decide the matter according to law preferably within six months. Till then the Arbitrator is requested not to decide issue Nos. 1 and 2. He may be at liberty to proceed with the other issues. He is requested to await the decision of the Probate Court; depending upon the result thereon, he would conclude his findings on Issue Nos. 1 and 2 and then make the award and take the proceedings according to law. The application is accordingly ordered but without cost.

 

Probate of will in India

Chapter IV – Practice in granting and revoking Probates and Letters of Administration


Section 264. Jurisdiction of District Judge in granting and revoking probates, etc

(1) The District Judge shall have jurisdiction in granting and revoking probates and letters of administration in all cases within his district.

(2) Except in cases to which section 57 applies, no Court in any local area beyond the limits of the towns of Calcutta, Madras and Bombay, 1 shall, where the deceased is a Hindu, Muhammadan, Buddhist, Sikh or Jaina or an exempted person, receive applications for probate or letters of administration until the State Government has, by a notification in the Official Gazette, authorised it so to do.

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Section 265. Power to appoint delegate of District Judge to deal with non-contentious cases

(1) The High Court may appoint such judicial officers within any district as it thinks fit to act for the District Judge as delegates to grant probate and letters of administration in non-contentious cases, within such local limits as it may prescribe:

Provided that, in the case of High Courts not established by Royal Charter, such appointments shall not be without the previous sanction of the State Government.

(2) Persons so appointed shall be called “District Delegates”.

Section 266. District Judge’s powers as to grant of probate and administration

The District Judge shall have the like powers and authority in relation to the granting of probate and letters of administration, and all matters connected therewith, as are by law vested in him in relation to any civil suit or proceeding pending in his Court.

Section 267. District Judge may order person to produce testamentary papers

(1) The District Judge may order any person to produce and bring into Court any paper or writing, being or purporting to be testamentary, which may be shown to be in the possession or under the control of such person.

(2) If it is not shown that any such paper or writing is in the possession or under the control of such person, but there is reason to believe that he has the knowledge of any such paper or writing, the Court may direct such person to attend for the purpose of being examined respecting the same.

(3) Such person shall be bound to answer truly such questions as may be put to him by the Court, and, if so ordered, to produce and bring in such paper or writing, and shall be subject to the like punishment under the Indian Penal Code, in case of default in not attending or in not answering such questions or not bringing in such paper or writing, as he would have been subject to in case he had been a party to a suit and had made such default.

(4) The costs of the proceeding shall be in the discretion of the Judge.

Section 268. Proceedings of District Judge’s Court in relation to probate and administration

The proceedings of the Court of the District Judge in relation to the granting of probate and letters of administration shall, save as hereinafter otherwise provided, be regulated, so far as the circumstances of the case permit, by the Code of Civil Procedure, 1908. (5 of 1908.)

Section 269. When and how District Judge to interfere for protection of property

(1) Until probate is granted of the will of a deceased person, or an administrator of his estate is constituted, the District Judge, within whose jurisdiction any part of the property of the deceased person is situate, is authorised and required to interfere for the protection of such property at the instance of any person claiming to be interested therein, and in all other cases where the Judge considers that the property incurs any risk of loss or damage; and for that purpose, if he thinks fit, to appoint an officer to take and keep possession of the property.

(2) This section shall not apply when the deceased is a Hindu, Muhammadan, Buddhist, Sikh or Jaina or an exempted person, nor shall it apply to any part of the property of an Indian Christian who has died intestate.

Section 270. When probate or administration may be granted by District Judge

Probate of the will or letters of administration to the estate of a deceased person may be granted by a District Judge under the seal of his Court, if it appears by a petition, verified as hereinafter provided, of the person applying for the same that the testator or intestate, as the case may be, at the time of his decease had a fixed place of abode, or any property, moveable or immoveable, within the jurisdiction of the Judge.

Section 271. Disposal of application made to Judge of district in which deceased had no fixed abode

When the application is made to the Judge of a district in which the deceased had no fixed abode at the time of his death, it shall be in the discretion of the Judge to refuse the application, if in his judgment it could be disposed of more justly or conveniently in another district, or, where the application is for letters of administration, to grant them absolutely, or limited to the property within his own jurisdiction.

Section 272. Probate and letters of administration may be granted by Delegate

Probate and letters of administration may, upon application for that purpose to any District Delegate, be granted by him in any case in which there is no contention, if it appears by petition, verified as hereinafter provided, that the testator or intestate, as the case may be, at the time of his death had a fixed place of abode within the jurisdiction of such Delegate.

Section 273. Conclusiveness of probate or letters of administration

Probate or letters of administration shall have effect over all the property and estate, moveable or immoveable, of the deceased, throughout the State in which the same is or are granted, and shall be conclusive as to the representative title against all debtors of the deceased, and all persons holding property which belongs to him, and shall afford full indemnity to all debtors, paying their debts and all persons delivering up such property to the person to whom such probate or letters of administration have been granted:

Provided that probates and letters of administration granted–

(a) by a High Court, or

(b) by a District Judge, where the deceased at the time of his death had a fixed place of abode situate within the jurisdiction of such Judge, and such Judge certifies that the value of the property and estate affected beyond the limits of the State does not exceed ten thousand rupees,

shall, unless otherwise directed by the grant, have like effect throughout 1[the other States .

The proviso to this section shall apply in 4[India] 5 after the separation of Burma and Aden from India to probates and letters of administration granted in Burma and Aden before the date of the separation, or after that date in proceedings which were pending at that date.]

6[The proviso shall also apply in 4[India] 7 8 after the separation of Pakistan from India to probates and letters of administration granted before the date of the separation, or after that date in proceedings pending at that date, in any of the territories which on that date constituted Pakistan.]

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Section 274. Transmission to High Courts of certificate of grants under proviso to section 273

(1) Where probate or letters of administration has or have been granted by a High Court or District Judge with the effect referred to in the proviso to section 273, the High Court or District Judge shall send a certificate thereof to the following Courts, namely:–

(a) when the grant has been made by a High Court, to each of the other High Courts;

(b) when the grant has been made by a District Judge, to the High Court to which such District Judge is subordinate and to each of the other High Courts.

(2) Every certificate referred to in sub-section (1) shall be made as nearly as circumstances admit in the form set forth in Schedule IV, and such certificate shall be filed by the High Court receiving the same.

(3) Where any portion of the assets has been stated by the petitioner, as hereinafter provided in sections 276 and 278, to be situate within the jurisdiction of a District Judge in another State, the Court required to send the certificate referred to in sub-section (1) shall send a copy thereof to such District Judge, and such copy shall be filed by the District Judge receiving the same.

Section 275. Conclusiveness of application for probate or administration if properly made and verified

The application for probate or letters of administration, if made and verified in the manner hereinafter provided, shall be conclusive for the purpose of authorising the grant of probate or administration; and no such grant shall be impeached by reason only that the testator or intestate had no fixed place of abode or no property within the district at the time of his death, unless by a proceeding to revoke the grant if obtained by a fraud upon the Court.

Section 276. Petition for probate

(1) Application for probate or for letters of administration, with the will annexed, shall be made by a petition distinctly written in English or in the language in ordinary use in proceedings before the Court in which the application is made, with the will or, in the cases mentioned in sections 237, 238 and 239, a copy, draft, or statement of the contents thereof, annexed, and stating–

(a) the time of the testator’s death.

(b) that the writing annexed is his last will and testament,

(c) that it was duly executed,

(d) the amount of assets which are likely to come to the petitioner’s hands, and

(e) when the application is for probate, that the petitioner is the executor named in the will.

(2) In addition to these particulars, the petition shall further state,–

(a) when the application is to the District Judge, that the deceased at the time of his death had a fixed place of abode, or had some property, situate within the jurisdiction of the Judge; and

(b) when the application is to a District Delegate, that the deceased at the time of his death had a fixed place of abode within the jurisdiction of such Delegate.

(3) Where the application is to the District Judge and any portion of the assets likely to come to the petitioner’s hands is situate in another State, the petition shall further state the amount of such assets in each State and the District Judges within whose jurisdiction such assets are situate.

Section 277. In what cases translation of will to be annexed to petition. Verification of translation by person other than Court translator

In cases wherein the will, copy or draft, is written in any language other than English or than that in ordinary use in proceedings before the Court, there shall be a translation thereof annexed to the petition by a translator of the Court, if the language be one for which a translator is appointed; or, if the will, copy or draft, is in any other language, then by any person competent to translate the same, in which case such translation shall be verified by that person in the following manner, namely:–

“I (A.B.) do declare that I read and perfectly understand the language and character of the original, and that the above is a true and accurate translation thereof.”

Section 278. Petition for letters of administration

(1) Application for letters of administration shall be made by petition distinctly written as aforesaid and stating–

(a) the time and place of the destator’s death;

(b) the family or other relatives of the deceased, and their respective residences;

(c) the right in which the petitioner claims;

(d) the amount of assets which are likely to come to the petitioner’s hands;

(e) when the application is to the District Judge, that the deceased at the time of his death had a fixed place of abode, or had some property, situate within the jurisdiction of the Judge; and

(f) when the application is to a District Delegate, that the deceased at the time of his death had a fixed place of abode within the jurisdiction of such Delegate.

(2) Where the application is to the District Judge and any portion of the assets likely to come to the petitioner’s hands is situate in another State, the petition shall further state the amount of such assets in each State and the District Judges within whose jurisdiction such assets are situate.

Section 279. Addition to statement in petition, etc., for probate or letters of administration in certain cases

(1) Every person applying to any of the Courts mentioned in the proviso to section 273 for probate of a will or letters of administration of an estate intended to have effect throughout 1[India], shall state in his petition, in addition to the matters respectively required by section 276 and section 278, that to the best of his belief no application has been made to any other Court for a probate of the same will or for letters of administration of the same estate, intended to have such effect as last aforesaid,

or, where any such application has been made, the Court to which it was made, the person or persons by whom it was made and the proceedings (if any) had thereon.

(2) The Court to which any such application is made under the proviso to section 273 may, if it thinks fit, reject the same.

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Section 280. Petition for probate, etc., to be signed and verified

The petition for probate or letters of administration shall in all cases be subscribed by the petitioner and his pleader, if any, and shall be verified by the petitioner in the following manner, namely:–

“I (A.B.), the petitioner in the above petition, declare that what is stated therein is true to the best of my information and belief.”

Section 281. Verification of petition for probate, by one witness to will

Where the application is for probate, the petition shall also be verified by at least one of the witnesses to the will (when procurable) in the manner or to the effect following, namely:–

“I (C.D.), one of the witnesses to the last will and testament of the testator mentioned in the above petition, declare that

Section 282. Punishment for false averment in petition or declaration

If any petition or declaration which is hereby required to be verified contains any averment which the person making the verification knows or believes to be false, such person shall be deemed to have committed an offence under section 193 of the Indian Penal Code. (45 of 1860.)

Section 283. Powers of District Judge

(1) In all cases the District Judge or District Delegate may, if he thinks proper,–

(a) examine the petitioner in person, upon oath;

(b) require further evidence of the due execution of the will or the right of the petitioner to the letters of administration, as the case may be;

(c) issue citations calling upon all persons claiming to have any interest in the estate of the deceased to come and see the proceedings before the grant of probate or letters of administration.

(2) The citation shall be fixed up in some conspicuous part of the court-house, and also in the office of the Collector of the district and otherwise published or made known in such manner as the Judge or District Delegate issuing the same may direct.

(3) Where any portion of the assets has been stated by the petitioner to be situate within the jurisdiction of a District Judge in another State, the District Judge issuing the same shall cause a copy of the citation to be sent to such other District Judge, who shall publish the same in the same manner as if it were a citation issued by himself, and shall certify such publication to the District Judge who issued the citation.

Section 284. Caveats against grant of probate or administration

(1) Caveats against the grant of probate or administration may be lodged with the District Judge or a District Delegate.

(2) Immediately on any caveat being lodged with any District Delegate, he shall send copy thereof to the District Judge.

(3) Immediately on a caveat being entered with the District Judge, a copy thereof shall be given to the District Delegate, if any, within whose jurisdiction it is alleged the deceased had a fixed place of abode at the time of his death, and to any other Judge or District Delegate to whom it may appear to the District Judge expedient to transmit the same.

Form of caveat.

(4) The caveat shall be made as nearly as circumstances admit in the form set forth in Schedule V.

Section 285. After entry of caveat, no proceeding taken on petition until after notice to caveator

No proceeding shall be taken on a petition for probate or letters of administration after a caveat against the grant thereof has been entered with the Judge or District Delegate to whom the application has been made or notice has been given of its entry with some other Delegate, until after such notice to the person by whom the same has been entered as the Court may think reasonable.

Section 286. District Delegate when not to grant probate or administration

A District Delegate shall not grant probate or letters of administration in any case in which there is contention as to the grant, or in which it otherwise appears to him that probate or letters of administration ought not to be granted in his Court.

Explanation.–“Contention” means the appearance of any one in person, or by his recognised agent, or by a pleader duly appointed to act on his behalf, to oppose the proceeding.

Section 287. Power to transmit statement to District Judge in doubtful cases where no contention

In every case in which there is no contention, but it appears to the District Delegate doubtful whether the probate or letters of administration should or should not be granted, or when any question arises in relation to the grant, or application for the grant, of any probate or letters of administration, the District Delegate may, if he thinks proper, transmit a statement of the matter in question to the District Judge, who may direct the District Delegate to proceed in the matter of the application, according to such instructions as to the Judge may seem necessary, or may forbid any further proceeding by the District Delegate in relation to the matter of such application, leaving the party applying for the grant in question to make application to the Judge.

Section 288. Procedure where there is contention, or District Delegate thinks probate or letters of administration should be refused in his Court

In every case in which there is contention, or the District Delegate is of opinion that the probate or letters of administration should be refused in his Court, the petition, with any documents which may have been filed therewith, shall be returned to the person by whom the application was made, in order that the same may be presented to the District Judge, unless the District Delegate thinks it necessary, for the purposes of justice, to impound the same, which he is hereby authorised to do; and, in that case, the same shall be sent by him to the District Judge.

Section 289. Grant of probate to be under seal of Court

When it appears to the District Judge or District Delegate that probate of a will should be granted, he shall grant the same under the seal of his Court in the form set forth in Schedule VI.

Section 290. Grant of letters of administration to be under seal of Court

When it appears to the District Judge or District Delegate that letters of administration to the estate of a person deceased, with or without a copy of the will annexed, should be granted, he shall grant the same under the seal of his Court in the form set forth in Schedule VII.

Section 291. Administration-bond

(1) Every person to whom any grant of letters of administration, other than a grant under section 241, is committed, shall give a bond to the District Judge with one or more surety or sureties, engaging for the due collection, getting in, and administering the estate of the deceased, which bond shall be in such form as the Judge may, by general or special order, direct.

(2) When the deceased was a Hindu, Muhammadan, Buddhist, Sikh or Jaina or an exempted person–

(a) the exception made by sub-section (1) in respect of a grant under section 241 shall not operate.

(b) the District Judge may demand a like bond from any person to whom probate is granted.

Section 292. Assignment of administration-bond

The Court may, on application made by petition and on being satisfied that the engagement of any such bond has not been kept, and upon such terms as to security, or providing that the money received be paid into Court, or otherwise, as the Court may think fit, assign the same to some person, his executors or administrators, who shall thereupon be entitled to sue on the said bond in his or their own name or names as if the same had been originally given to him or them instead of to the Judge of the Court, and shall be entitled to recover thereon, as trustees for all person interested, the full amount recoverable in respect of any breach thereof.

Section 293. Time for grant of probate and administration

No probate of a will shall be granted until after the expiration of seven clear
days, and no letters of administration shall be granted until after the expiration of fourteen clear days, from the day of the testator or intestate’s death.

Section 294. Filing of original wills of which probate or administration with will annexed granted

(1) Every District Judge, or District Delegate, shall file and preserve all original wills, of which probate or letters of administration with the will annexed may be granted by him, among the records of his Court, until some public registry for wills is established.

(2) The State Government shall make regulations for the preservation and inspection of the wills so filed.

Section 295. Procedure in contentious cases

In any case before the District Judge in which there is contention, the proceedings shall take, as nearly as may be, the form of a regular suit, according to the provisions of the Code of Civil Procedure, 1908 (5 of 1908.) in which the petitioner for probate or letters of administration, as the case may be, shall be the plaintiff, and the person who has appeared to oppose the grant shall be the defendant.

Section 296. Surrender of revoked probate or letters of administration

(1) When a grant of probate or letters of administration is revoked or annulled under this Act, the person to whom the grant was made shall forthwith deliver up the probate or letters to the Court which made the grant.

(2) If such person wilfully and without reasonable cause omits so to deliver up the probate or letters, he shall be punishable with fine which may extend to one thousand rupees, or with imprisonment for a term which may extend to three months, or with both.

Section 297. Payment to executor or administrator before probate or administration revoked

When a grant of probate or letters of administration is revoked, all payments bona fide made to any executor or administrator under such grant before the revocation thereof shall, notwithstanding such revocation, be a legal discharge to the person making the same; and the executor or administrator who has acted under any such revoked grant may retain and reimburse himself in respect of any payments made by him which the person to whom probate or letters of administration may after wards be granted might have lawfully made.

Section 298. Power to refuse letters of administration

Notwithstanding anything hereinbefore contained, it shall, where the deceased was a Muhammadan, Buddhist or exempted person, or a Hindu, Sikh or Jaina to whom section 57 does not apply, be in the discretion of the Court to make an order refusing, for reasons to be recorded by it in writing, to grant any application for letters of administration made under this Act.

Section 299. Appeals from orders of District Judge

Every order made by a District Judge by virtue of the powers hereby conferred upon him shall be subject to appeal to the High Court in accordance with the provisions of the Code of Civil Procedure, 1908 (5 of 1908.), applicable to appeals.

Section 300. Concurrent jurisdiction of High Court

(1) The High Court shall have concurrent jurisdiction with the District Judge in the exercise of all the powers hereby conferred upon the District Judge.

(2) Except in cases to which section 57 applies, no High Court, in exercise of the concurrent jurisdiction hereby conferred over any local area beyond the limits of the towns of Calcutta, Madras and Bombay 1shall, where the deceased is a Hindu, Muhammadan, Buddhist, Sikh or Jaina or an exempted person, receive applications for probate or letters of administration until the State Government has, by a notification in the Official Gazette, authorised it so to do.

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Section 301. Removal of executor or administrator and provision for successor

The High Court may, on application made to it, suspend, remove or discharge any private executor or administrator and provide for the succession of another person to the office of any such executor or administrator who may cease to hold office, and the vesting in such successor of any property belonging to the estate.

Section 302. Directions to executor or administrator

Where probate or letters of administration in respect of any estate has or have been granted under this Act, the High Court may, on application made to it, give to the executor or administrator any general or special directions in regard to the estate or in regard to the administration thereof

Devider

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