Crystal Developers Vs. Smt. Asha Lata Ghosh & Ors  Insc 609 (5
ASHOK BHAN & S.H. KAPADIA WITH
CIVIL APPEAL No.6259/2000 Archit Vanijya & Viniyog Pvt. Ltd. & Ors. Appellants
Versus Smt. Asha Lata Ghosh (Dead) Through LRs. & Others Respondents AND
CIVIL APPEAL Nos.6871-6873/2003.
Archit Vanijya & Viniyog Pvt. Ltd. & Ors. Appellants Versus Arindam
Ghosh & Others Respondents KAPADIA, J.
CIVIL APPEALS NO.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 & Viniyog
Pvt. Ltd. & others, original defendants no.15 to 20 in the said suit
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.
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.
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 no.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
no.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 no.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
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 life time 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.
The written statement filed by defendants no.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.
On the above pleadings, the trial Court framed 14 issues. However, we are
concerned with issues no.8, 9, 11 and 12 as framed by the trial Court: (i) Did
defendants no.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 no.1 and 2 in favour of
defendant no.14 was valid, legal and binding on the plaintiffs? and (iv)
Whether defendants no.15-20 were bona fide purchasers for value without notice?
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 @ Rs.55,000/- per kottah of land. On that
basis, the total consideration receivable by defendant no.2 was Rs.15 lacs
(approximately), whereas he has been paid Rs.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 no.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.
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.
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 Rs.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 life time 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.
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.
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.
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.
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.
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.
Mr. Ranjit Kumar, learned senior counsel for defendants no.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 no.15 to 20 had derived title from defendant
no.14, the said defendants no.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
Mr. Mukul Rohtagi, learned senior counsel for plaintiffs no.1 & 4 and
defendant no.4; Mr. Dhruv Mehta, learned counsel for plaintiffs no.5 and 6; and
Shukla, learned senior counsel appearing on behalf of the heir of plaintiff
no.2 submitted that defendants no.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 no.14 to 20 would like to
await the decision on the validity of the will from the Probate Court to which
the defendants no.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
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.
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
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.
On the point as to whether defendant no.14 and defendants no.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 & Manju. That provisions of Order 23
Rule 3B CPC 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 no.15 to 20
cannot claim protection for the transfer, which originated from fraud. That the
said defendant no.14 and defendants no.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 no.15 to 20. That in Ex.A/1, the total consideration was
not mentioned and only the rate of Rs.55,000/- per kottah. At the above rate,
the total price payable was Rs.15.04 lacs but defendant no.2 sold it for
Rs.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
no.15 to 20 took the property bona fide and in good faith.
In view of the above arguments, we have to examine the evidence on record.
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 v. 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.
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 life time
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 Rs.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 life time 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
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 Rs.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 no.15 to 20.
That defendant no.14 did not inform defendants no.15 to 20 regarding the
pendency of the probate case as at the time of alienations in favour of
defendants no.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.
On behalf of defendants no.15 to 20, DW6 deposed that the plaintiffs in the
partition suit were never in possession of the suit premises. He denied that
defendants no.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.
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 no.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.
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.
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.
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
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
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 & another v.
Administrator-General of Bengal reported in [ILR (1906) 33 Calcutta 713]
will not apply to the present case.
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
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.
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.
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.
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 &
others v. The Dominion of India & 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.
In S. Parthasarathy Aiyar v. M. Subbaraya Gramany & 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." In the case of
Mt. Azimunnisa Begum v. Sirdar Ali Khan & 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.
In Cherichi v.Ittianam & 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.
In Sheonath Singh v. 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.
In Mrs. Hem Nolini Judah v. Mrs. Isolyne Sarojbashini Bose & 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.
In Komollochun Dutt & others v. 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
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 v. Mt. Kalawati Kuer reported in [AIR 1928 PC 2].
In the case of Akshay Kumar Pal v. 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.
In the case of Valerine Basil Pais (dead) by LRs v.
Gilbert William James Pais & another reported in [1993 (2) Kar. 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
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
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.
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
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 Rs.55,000/- per kottah of land and at that rate the
total consideration receivable by Balai Chand was Rs.15 lacs, whereas in fact
the amount received by defendant no.2 under Ex.A/8 was Rs.9,54,632/-;
(vi) That in the case of Naresh Chandra Ghosh v. Archit Vanijya &
Viniyog Pvt. Ltd.
reported in [1998) 2 Cal. L. J. 344], the will was found to be forged by the
(vii) That revocation was on account of forgery and fraud;
(viii) That defendants no.15 to 20 purchased the suit premises after
Before dealing with each of the aforestated circumstances, we may examine
the legal position.
In the case of Surendra Nath Chatterji v. 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.
Similarly, in the case of Smt. Indu Bala Bose & Ors. v. Manindra Chandra
Bose & 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.
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.
of Trial Court Case No. in High Court Case No.
in Supreme Court NAME OF PARTIES In Appeal REMARKS 01 79-80 of 1954 268
& 270 of 1957 966 & 968 of 1964 Nirmala Bala Ghose v. Balai Chand Ghose
Suits were filed by Balai Chand 02 67 of 1955 269 of 1957 967 of 1964 Nirmala
Bala Ghose v. Balai Chand Ghose Suit was filed by Balai Chand 03 67 of 1976
Nirmala Bala Ghosh v. Balai Chand Ghosh Suit was filed by Balai Chand 04 M.C. 3
of 1980 in Misc Appeal No.309 of 1978 Balai Chand Ghosh v.
Nirmala Ghosh Arindom Ghosh was substituted in place of Balai Chand.
05 2/1961 [Earlier Nos.68/56, 13/59] FA 492/62 Ramesh Ghosh v.
Balai Chand Ghosh Compromised matter.
06 2/1961 FA 491/62 Nirmala Ghosh etc.
v. Balai Chand Ghosh Compromised matter.
07 111/66 180/73 Iswar Satyanarayan v. Balai Chand Ghosh (D) through LRs
Nirmala Ghosh & others The LRs of Balai Chand were restrained from
alienating property no. 13 & 13/1 Beliaghata Road 08 4/1968 Mamta Ghosh v.
Nirmala Bala Ghosh Suit for declaration that 5 Hindustan Park is not
attachable in execution.
Between September, 1977 and July, 1978, settlements between Balai Chand and
Nirmala, Suresh & 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.
Apart from the aforestated facts, the will of Balai Chand recites
specifically that Balai Chand had two sons Paresh & 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
The evidence further shows that during the life time 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
Rs.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 Rs.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 de hors 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 life time. 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 Rs.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
Rs.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 Rs.9.54 lacs whereas
under Ex.A/1 he was entitled to receive Rs.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
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 & others v.
Archit Vanijya and Viniyog Ltd. & others reported in [(1998) 2 Cal. L.J.
344]. The only question before the Division Bench of the High Court was whether
defendants no.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.
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.
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 BONAFIDE PURCHASER FOR VALUE WITHOUT NOTICE? IF
SO, WHETHER SUBSEQUENT ALIENATION BY DEFENDANT No.14 IN FAVOUR OF DEFENDANTS
No.15 TO 20 IS VALID AND BINDING ON THE INTESTATE HEIRS OF BALAI CHAND? As the
above two points are interconnected, we propose to deal with them jointly.
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. v. Gilbert William James Pais &
another reported in 1993 (2) Kar. L. J.
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
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 Rs.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 Rs.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 life time 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.
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 no.15 to
20. In the plaint, collusion is alleged between defendants no.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
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
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.
Lastly, both the Courts below have failed to notice the provisions of
section 41 of Transfer of Property Act.
In the case of Gurbaksh Singh v. Nikka Singh & 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.
In the case of Seshumull M. Shah v. Sayed Abdul Rashid & 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
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 & others v.
Archit Vanijya and Viniyog Ltd. & others reported in (1998) 2 Cal. L.J.
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.
Before concluding, we may refer to the judgment of the Madras High Court in
the case of G.F.F. Foulkes & others v. 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 no.15 to
20 was valid.
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 no.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 no.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 bonafide 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 can not
thereafter assail the same. We do not find any merit in this argument. Firstly,
before the trial Court, defendant no.14 and defendants no.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 no.14 to 20
cannot be prevented from relying on the probate and the will.
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.
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
CIVIL APPEAL Nos.6871-6873 OF 2003.
For reasons given in our judgment allowing Civil Appeals No.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.
There shall be no order as to costs in all the appeals.