CRYSTAL DEVELOPERS ETC. ETC. v. SMT. ASHA LATA GHOSH (DEAD) THROUGH LRS. AND ORS., ETC. ETC.

The Judgment of the Court was delivered by B KAPADIA, J.

CIVIL APPEALS N0.6258-6259 OF 2000

These civil appeals, by grant of special leave, are directed against the judgment and order dated 4.9.7000 passed by the High Court of Calcutta in C 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 of2000 has been preferred by Crystal Developers who were original defendant no.14 in title suit no.89/81 whereas Civil Appeal D No.6259 of 2000 has been filed by Archit Vanijya & Viniyog Pvt. Ltd. and Ors., original defendants no.15 to 20 in the said suit no.89/81.

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: E

One Balai Chand Ghosh (since deceased) had three wives. His first wife was Jamuna, from whom he had two sons, Naresh and Paresh. Ninnala 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 G 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 wa? 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, H

42 . SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.

A son of Balai Chand from the second wjfe, was the 5th defendant. Therefore, the parties to the suit claimed l/l lth 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. I and 2, namely, Mamta and her son Arindam. In the said written statement, Arindam set up the registered will B made by Balai Chand on 25.I2. I977. He relied on the probate dated 3l.7.I93I; consent decree dated 3.8.198 I in suit no.310 of I 98 I as also the conveyance (Ex.A/8) dated 4.8. I 98 I in favour of Crystal Developers, defendant no.14. In the written statement, defendant no.2 also relied on the order dated 2 I .8. I 982 passed by the Court of 5th Addi. District Judge, Alipore in Miscellaneous C 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 I 993, 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. I 993 and 22.8. I 993, the plaintiffs came to know of the impugned transfer. According to the amended plaint, Mamta {defendant no. I) D and Arindam (defendant no.2) had sold, in collusion with each other, the suit premises to defendant no. I4 to prevent the plaintiffs from claiming the same; that prior to the transfer, defendants no. I 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 I2.3.1979 (Ex.All), the supplemental agreement for sale dated

E 21. 7 .1980 (Ex.A/2), the conveyance dated 4.8.1981 (Ex.A/8); that defendants no.I and 2 never acquired any indefeasible title and consequently Ex.A/I, 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 l/l lth share in the suit premises. F 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.All 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

CRYSTAL DEVELOPERS v. A.L GHOSH [KAPADIA, J.] 43

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/ I, Ex.A/2 and Ex.A/8 were binding on the estate cf 'Jalai Chand. In the written statement, defendant no.14 claimed that they were bona fide purchasers for value wi.thout notice of any defect in obtaining of pi·obate 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. I 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 E Probate Court vide order dated 9.7.1987? (iii) Whether Ex.A/8 executed by defendants no. I 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 p 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/I and Ex.A/2 were executed by defendant no.2 as constituted attorney ofBalai Chand. That G no reason was given as to why Ex.A/I 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. I 931) 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 ofNirmala. Fourthly, according H

44 SUPREME COURT REPORTS [2004) SUPP. 5 S.C.R.

A 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 Cpurt, defendant n?.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 B relied on the affidavit dated 25.9.1997 filed by defendant no.I at the interim stage stating that Balai Chand had never entered into Ex.All 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.All and Ex.A/2 were executed by defendant no.2 to defeat the rights of the plaintiffs. Seventhly, under clause (2) of Ex.A/I, the purchase price was to be calculated @ C 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 wa5 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 D aforesaid circumstances, the trial Court came to the conclusion that there was /

collusion between defendant no.2 an~ 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 E 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.All, 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.

F 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 ofnon- citation; that defendant no.14 had colluded with defendant no.2 in filing of G 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 29.7.1981to31.7.1981 and Ex.A/8 was executed even before issuance of the certified copy of the probate by the Registry. In the circumstances, the H High Court came to the conclusion that defendant no.14 was a privy to the

CRYSTAL DEVELOPERS v. A.LGHOSH [KAPADIA, J.) 45 ~

fraudulent acts of defendant no.2 and was, therefore, not a bona fide purchaser. A 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/I and Ex.A/2 were executed by defendant no.2 as constituted attorney ofBalai Chand, an advance ofRs.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 establifhes that Balai Chand during his life time had intended to sell the suit premises. Hence, Ex.A/I was binding on Balai Chand as also on his heirs. It was urged that Ex.A/8 was pursuant to Ex.A/I, 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. F 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.I 981. It was submitted that defendant no.14 had paid the balance consideration to defendant no.2 who G 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. I4 referred to the order passed by the H

46 SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.

A 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 ~nder 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 D 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 PWl 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 hold:ng 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 fa~ts 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 foi: defendants no.15 to 20 H adopted the arguments advanced on behalf of defendant no.14 and submitted

CRYSTAL DEVELOPERS v. A.L GHOSH [KAPADIA, J.) 47 that under section 21 l 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 tlie 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. C In the circumstances, learned counsel submitted that revocation of grant will operate prospectively and snch revocation will not annul the intermediate act ;. of disposition by defendant no.2.

Mr. Mukul Rohtagi, learned senior counsel for plaintiffs no. I & 4 and defendant no.4; Mr. Dhruv Mehta, learned counsel for plaintiffs no.5 and 6; D and Mr. R.K. 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 circumstances.

It was next contended on behalf of the plaintiffs that probate granted without will being proved in accordance with section 63 ofindian 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 H

48 SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.

A 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, B it was pointed out that Mamta, defendant no. I, 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

C an unnatural disposition as Parul and Manju, the two daughters from Ninnala 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 .l 2.1977 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. l.1978. That it is incomprehensible as to why none of the D 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. E 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 F Balai Chand did not execute Ex.All 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 G 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___ _ H Parul & Manju. That provisions of Order 23 Rule 38 CPC were circumvented .__

CRYSTAL DEVELOPERS v. A.L GHOSH [KAPADIA, J.] 49

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 wer~ 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/I, 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.All, 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 de<'.eased and, therefore, by surreptitious meth~d, defendant no.14 in connivance with defendant no.2 as constituted attorney executed Ex.A/2 after death of Bafai 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 F 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 G record.

On behalf of the plaintiffs, Bhabesh - plaintiff no.4 was examined as PWI. In his examination-in-chief, PWI deposed that the plaintiffs learnt about the probate case in 1986. In 1986, plaintiffs became aware of Arindam H

50 SUPREME COURT REPORTS [2004) SUPP. 5 S.C.R.

A getting the probate. However, PWl deposed that plaintiffs were not aware of defendant no.2 being appointed executor under the will. He denied execution of the will by Balai Ch.and. PWl 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 D PWI 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. PWl in his evidence has also referred to the judgment of the Supreme Court in the case of Nirmala Bala Ghose and Anr. 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. PWI has further stated in his cross-examination that Balai Chand used to reside with his youngest wife Mamta and defendant no.2. PWl 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. PWl admitted that Balai Chand had separated in mess since 1956-57. He was not aware of Ex.A/I. He was not ·, aware of suit no.310/81. He was not aware of the consent decree in suit no.310 of 198 l. 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 H ... to look after his properties. He has further deposed that he never enquired •

CRYSTAL DEVELOPERS v. A.L GHOSH [KAPADIA, J.] 51 ~. from Balai Chand about the transfer of properties. PWI did not make any A:. search in the Registrar's office in the matter of title deeds concerning the suit premises on the demise of Balai Chand. PWl 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 OWL In his examination-in-chief, DWI deposed that Jamuna died before the second B 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 Nirrnala and her children. Balai Chand did not enjoy good relations with Paresh and Naresh. That there were c suits between Balai Chand and Nirrnala. Balai Chand had instituted suits against the sons of Nirrnala 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. I 4 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. DWI 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. DWI deposed that Balai Chand during his life time agreed to sell the suit premises to defendant no.14 vide Ex.A/I. That the said agreement was suhsequently modified by Ex.A/2. That Rs. l ,25,000 was received on 14.4.1979 (Ex.A/3). That at the time Ex.All was executed, Balai Chand was hale and hearty. Balai Chand had agreed to sell the suit premises for consideration. DWI, however, denied that the will was forged. DWI 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/I had been entered into to defraud the other heirs of Balai Chand. He deposed that Ex.All was entered into during the life time of Balai Chand. He denied that Ex.A/2 was collusive. According to DWI, Balai Chand was aware of Ex.A/I and G Ex.A/2. DWI denied that he has no right to execute Ex.A/8. DWI 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 3 I. 7. I 98 I.

... On behalf of defendant no.14, one of its partners DWS deposed that H

52 SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.

.i A defendant no.14 had paid substantial amounts under Ex.A/I 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.All 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 B 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 c 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 personat 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 F 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 ,... >-

CRYSTAL DEVELOPERS v. A.L GHOSH [KAPADIA, J.] 53

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: B (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? ~ c (III) Was defendant no.14 bona fide purchaser for value without notice? lfso, 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 D DISPOSITJON(S) DURING THE PENDENCY OF THE PROBATE.

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.

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 H

54 SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.

A 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 B indicate that the property shall vest in the executor by virtue of the will whereas the property will vest in the administrato;- 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 C 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 ce1tificate. 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 D 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 o.f 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 a/ia 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 exec~tor 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

CRYSTAL DEVELOPERS v. A.L GHOSH [KAPADIA, J.] 55 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 no.t protected whereas in the case of probate, all such acts are treated as vali& 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. Jn the circumstances, the judgment in the case of Debendra Nath Dutt and Anr. 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 E 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 supprl .>sing from the Court something material to the ca~ 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 F 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 intennediate acts of the executor? If it is not ab initio void in the case of non-filing of H

56 SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.

A 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 B 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. c Chapter IV of part IX deals with practice in the matter of granting and revoking probates and letters of administration. Section 273 inter a/ia 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 d~b~ors 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 bringsb>ut the distinction between vesting of the estate in the executor under section 211 and his power of disposition. Section 317 F 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 G 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.

H As stated above, it is submitted on behalf of the plaintiffs that probate

CRYSTAL DEVELOPERS v. A.LGHOSH [KAPADIA, J.] 57

dated 31.7 .1981 was void as· the will of Balai Chand was not proved in A 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. B We'Clo 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 !estator, as long as the grant stands. Under section 41 of the Evidence Act, C 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 Ors. v. The Dominion of India and Anr., 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 D 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 and Am:., reported in AIR (1924) Madras 67 it has been held: E "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 al!d 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 ~ase of Mt. Azimunnisa Begum v. Sirdar Ali Khan and Ors. 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 !item 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 !item, it would be open to the infant on attaining majority to institute proceedings H

58 SUPREME COURT REPORTS (2004) SUPP. 5 S.C.R.

A within the period prescribed by the Limitation Act for the revocation of the grant of probate. In that matter, the plaintiff alleged tfiat 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 ii:iitio 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 and Ors., AIR (2001) Ker:ala 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 i!Vidence 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. iri a E court of justice .

. In Sheonath Singh v. Madan/al, reported in AIR (1959) Raj. 243, it was held that Section 2 J3 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. F In Mrs. Hem Nolini Judah,v. Mrs. Jso/yne Sarojbashini Bose and Ors., 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. G In Komollochun Dutt and Ors. v. Nilruttun Mundie, reported in 4 ILR Cal. 360 it has been held that the property of the testator vests in the executor ~y 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 '\ . H estate and it establishes will from the date of death of the testator. The

CRYSTAL DEVELOPERS v. A.L GHOSH [KAPADIA, J.] 59

probate can be revoked upon any of the grounds mentioned in section 234 A 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, theref-.. e, ;, ys down that even B when the probate issued in the common form is revokt::d under section 263 the revocation operates prospectively; that on revocation ,Jarties 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. Kalawciti Kuer, reported in AIR (1928) PC 2. C In the case of Akshay Kumar Pal v. Nanda/al Das, reported in ILR (1946) l Cal. 432 it has been held that wher~ 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 administratio.n of the estate or they are with persons acting in good faith. D 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 E. 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 21 I, 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 H

60 SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.

A 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 ifthe 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.

ln the case of Valerine Basil Pais (dead) by LRs v. Gilbert William James Pais and Anr., 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 the deceased.

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 F 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. PWl in his evidence has deposed that the probate was revoked on account of non-citation. Therefore, reading the aforestated orders and the evidence of PWl, 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.

CRYSTAL DEVELOPERS v. A.L GHOSH [KAPADIA, J.] 61

Learned counsel for the plaintiffs, however, submitted that the initial A. 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.:- B (i) Execution of Ex.A/I 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 ~~ c (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/I 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 D · though old was hale and hearty and, therefore, there was no reason for execution of Ex.A/I and Ex.A/2 through the constituted attorney; (v) That under clause (2) of Ex.A/I, the rate at which the suit premises were agreed to be sold was Rs.55,000 per kcittah of land and at E 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 High Court; F (vii) That revocation was on account of forgery and fraud; (viii) That defendants no.15 to 20 purchased the suit premises after revocation. Before dealing with each of the aforestated circumstances, we may G 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 haw been executed by one Ram Lal Mukherji, dated 6th September, 1914 and the Codicil was executed by the same gentleman dated I Ith H

62 SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.

A 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 ofBoinchee in the district ofHoogly. 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 E 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 'Vas treated by his sons one cannot assume that the will made by him was without knowing the contents.

F Similarly, in the case of Smt. Indu Bala Bose and Ors. v. 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.

In the light of the aforestated judgments we may now examine the evidence in this case. Balai Chand had married thrice. Ja'muna 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

CRYSTAL DEVELOPERS v. A.L GHOSH [KAPADIA, J.] 63 .... had numerous cases filed against Nirmala the particulars of which are as under:

SI. Suit No. Case Case Name of REMARKS No. of Trial No. in No. in PARTIES Court High Supreme In Appeal Court Court B 01 79-80 of 268 & 966 & Nirmala Bala Suits were filed 1954 270 of 968 of Ghose v. Balai by Balai Chand 1957 1964 Chand Ghose, 02 67 of 269 of 967 of Nirmala Bala Suit was filed 1955 1957 1964 Ghose v. Balai by Balai Chand Chand Ghose, c 03 67 of Nirmala Bala Suit was filed 1976 Ghosh v. Balai by Balai Chand Chand Ghosh, 04 M.C. 3 Ba/.ai Chand Arindom of 1980 Ghosh v. Ghosh was D in Misc Nirmala Ghosh, substituted in Appeal place of Balai No.309 Chand. of 1978 05 2/1961 FA Ramesh Ghosh v. Compromised [Earlier 492/62 Balai Chand Ghosh, matter. E Nos.68156 13/59] 06 2/1961 FA Nirmala Ghosh etc. v. Compromised 491/62 Balai Chand Ghosh, matter. 07 111/66 180173 lswar Satyanarayan v. The LRs of Balai Chand Balai Chand F Ghosh, (D) through were restrained LRs Nirmala from alienating Ghosh and Ors., property no. 13 & 13/1 Beliaghata Road G 08 4/1968 Mam/a Ghosh v. Suit for Nirmala Bala declaration that Ghosh, 5 Hindustan ' Park is not attachable in execution. H

64 SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R. -~,.,._

A 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 al.so 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. B 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 c 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 D 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.

E The evidence further shows that during the life time of Balai Chand, Ex.All and Ex.Al2 came to be executed. That although Ex.All and Ex.Al2 were executed by defendant no.2 as the constituted attorney of Balai Chand, an :imount of Rs.1.25 lacs was received by Balai Chand from defendant no.14, which is uncontroverted evidence of DW5, and which indicates that J;lalai Chand was aware of Ex.All and that he intended to sell the suit premises to defendant no.14. Further, Ex.Al3 shows that the cheque for Rs. l .25 lacs was drawn in favour of Balai Chand. Further, Balai Chand Jived for almost three years after making the will on 25.12.1977. He found Arindam to be obedient. He loved Arindam and Mamta. Thes(} 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 . H contents of the will viz. the strained relationship between the testator and

CRYSTAL DEVELOPERS v. A.L GHOSH [KAPADIA, J.] 65

Nirmala, Jamuna and their children, the love and affection of Balai Chand for A 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 B 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.l l.1997, Mamta files another affidavit, in which she states that she has gone through C Ex.A/I, 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. DWI 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 <luting 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.All by constituted attorney of Balai Chand was to defraud Balai Chand and his heirs. However, the trial F Court has failed to consider the evidence of DW5 stating that Rs. l.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. l .25 lakh which has not been considered by the trial Court. It indicates that Balai Chand had knowledge of Ex.A/I and that he had approved the agreement of sale. In the G 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 lakh whereas under Ex.A/I he was entitled to receive Rs. 15 lakh. As stated above, no H

66 SUPREME COURT REPORTS [2004) SUPP. 5 S.C.R.

A suggestion was put to DWI (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 B free the suit premises from encumbrances? In the absence of ailegations 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 th~ trial Court Arindam had obtained the probate fraudulently. According to the trial Court the will was forged. As C stated above, this finding was without evidence. As stated above, the application dated 14.5.1986 by Bhabesh on the .aforesaid grounds was dismissed. PW! 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 D Chandra Ghosh and Ors., v. Archit Vanijya and Viniyog Ltd. and Ors., 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

CRYSTAL DEVELOPERS v. A.L GHOSH [KAPADIA, J.) 67

without serving citation on his two step-sisters. According to the High Court A 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 B 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 ofimpleadment 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 C 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 thatBalai 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- G 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 ofNirmala 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 H