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Indian Succession Act, 1925; Ss. 2(f), 2(h), 63, 211, 212, 213, 214, 218, 219, 220, 221, 227, 235, 263, 273, 278, 297, 307 and 332: Testator bequeathing property in dispute to his son from third wife ignoring other legal heirs-Grant of probate/Letter of Administration-Suit for partition of the property filed by other legal heirs-Agreements to sell the property in dispute entered into between the testator and vendee- Execution thereof by the executor-son after death of his father/testator- Revocation of probate on ground of non-citation-Sale transactions-Validity of-Held: Agreement to sell the property executed and certain amount as part consideration received by testator himself during his life time-Testator had strained relations with his second wife and sons but had cordial relations with his third wife and son-Testator bequeathed his properties to his son from third wife out of love and affection, and appointed the son as constituted attorney for negotiations and selling of the property-No abnormality found in testator appointing one of his sons as constituted attorney-Trial Court failed to take into account the proved preponderatory circumstances but was influenced by unconsequential matters in holding the will as not genuine- Grant of Probate establishes the genuineness of the will-Grantee entitled to convey the title-If propounder did not take appropriate steps by mistake to notify his heirs before obtaining probate, third party/purchaser, if acted bonafidely, not answerable to the mistake committed by the grantee-Since Vendees invested huge amount to free the suit premises from requisition, acquisition and other encumbrances, they were bound to expedite the sale after grant of probate-Since partition suit filed by other legal heirs, sons from second wife of the testator, and the suit premises got demolished and a new building constructed thereon, it shows that other legal heirs also had knowledge of these events-They knowingly allowed the executor of the will to represent himself as owner of the suit property-Hence, Vendee is bonafide purchaser for value-Indian Evidence Act, 1872-Section 68. Effect of affidavit and counter affidavit on the genuineness of the will- Held: Initially mother of the executor alleged the will as forged in terms of affidavit filed by her at an interim stage of the proceedings, she rectified the earlier statement by supporting the genuineness of contents and signatures of testator on the will by filing another affidavit-These evidence not shaken- Hence, alleged suspicious circumstances stand cleared. Revocation of grant-Circumstances-Held: Liable to be revoked if obtained fraudulently-Probate Court revoked the grant on ground of non- citation- Since the executor of the will deposed that he could not cite his two step sisters due to mis-conception and not on account of fraud, Courts below erred in concluding that the probate was obtained by the executor fraudulently. Constitution of India, 1950; Article 136-Scope of-Discussed. Transfer of Property Act-Section 41-Applicability of-Discussed. Words and Phrases: `Executor’ and ` administrator’-Distinction between. A partition suit was filed by the legal heirs, sons of the deceased/ testator, claiming their share in the properties. The deceased had three wives (One of whom died during his life time) and nine children. He was living along with his third wife (defendant No.l) and son (defendant No.2) since he was having strained relations with his second wife and other children. Defendant No.2 contested the suit relying on several documentary evidence including the registered Will made by his father during his life time, bequeathing the disputed properties in his favour. The disputed property was transferred by defendant No.2 in favour of the appellant/ Vendee (defendant No.14 in the suit). Subsequently the property was transferred by the appellant in favour of defendant Nos. 15 to 20. Trial Court decreed the suit holding that defendant No.14 was not bonafide purchaser since the agreements (Ex.A/1 and ExA/2) for sale of the disputed properties were executed by defendant No.2 as constituted attorney when his father, owner of the property was alive; that the probate was obtained by defendant No.2 without service of the citations on his step sisters; that the suit for specific performance filed by the Vendee was settled in haste as the transfer deed (Ex.A/8) was executed by defendant No.2 even without receiving the total consideration amount from the vendee; and that the property was further sold to defendant Nos. 15 to 20 even after revocation of the grant of probate. The order of the Trial Court was affirmed by the High Court. Hence the present appeals. It was contended by the appellants that although Ex.A/1 and Ex. A/ 2 were executed by defendant No.2 as constituted attorney of the deceased, certain amount was received by the deceased from defendant No.14 as evidenced by receipts Ex.A/3 and Ex/A/4, which establish that the deceased during his life time had intended to sell the suit property. Thus, Ex.A/1 was binding on him as also on his heirs; that since Ex.A/8 was executed pursuant to the agreements for sale of the properties, Ex.A/1, Ex.A/2 and the probate, it was binding on the estate of the deceased; that it was not open to the plaintiffs/other legal heirs to impugn transfer deed, Ex.A/8, as fictitious or fraudulent as they had acquiesced and allowed the suit property to be freed from encumbrances by the vendees; that Ex.A/8 was entered into only after thorough search of the title deeds and the documents, including the probate; that defendant No.14 had paid the balance consideration amount to defendant No.2 who was the executor under the will; that in terms of the order of the Court defendant No.2 was brought on record as the executor under the will on demise of his father, the testator; that the second wife of the deceased was aware of defendant No.2 being appointed as an executor; that the probate Court has revoked the grant only on the ground of non- citation which was admitted by PW1 in his evidence; that the revocation cannot annul the impugned disposition which was effected during the period when probate was in existence; 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, since fraud and collusion have to be alleged and proved; and that defendant No.14 had completed the sale only after the grant of probate. Thus, defendant No.14 was a bona fide purchaser and since defendants Nos.15 to 20 had derived title from defendant No.14, they are also protected. It was submitted by the respondents that defendant Nos. 14 to 20 were not entitled to rely upon the probate or the will in support of their case in view of the concession made by them before the Division Bench of the High Court; that probate granted without will being proved in accordance with Section 63 of the Indian Succession Act and Section 68 of the Evidence Act is void ab initio; that the impugned will was surrounded by suspicious circumstances and that the onus was on defendant No.2 or defendant No.14 to remove or explain those circumstances; that the consent decree was a collusive decree entered into with the intention to defeat the rights of the plaintiffs/other heirs in the partition suit; that defendant No.14 or defendant Nos. 15 to 20 cannot claim protection for the transfer, which originated from fraud.; that suit for specific performance was filed by defendant No.14 to complete the sale at the earliest; that the total price/consideration amount payable was higher but defendant No.2 transferred the property for lesser amount; and that by surreptitious method, defendant No.14 in connivance with defendant No.2 as constituted attorney executed Ex.A/2 after death of the owner of the property. =Allowing Civil Appeal Nos. 6258 and 6259 of 2000 and disposing of Civil Appeal Nos. 6871-6873 of 2003 as having become infructuous, the Court HELD: 1.1. Sections 211, 212 and 213 of the Indian Succession Act bring 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. 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. [54-B; 55-A] 1.2. Under Section 263 of the Act, grant of probate of letters of administration is liable to be revoked on any of five grounds mentioned therein. One of the grounds is failure on the part of the grantee to exhibit/ file an inventory or statement of account Similarly, the probate or letter of administration is liable to be revoked if the grant is obtained fraudulently. If the grant 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, if it is obtained fraudulently. 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 of the Act, 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. [55-G, H; 56- A, B] 1.3. Section 273 of the Act 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. It is, therefore, not a pure question of law. Hence, the 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. [57-B, C, D] Lady Dinbai Dinshaw Petit and Ors. v. The Dominion of India and Anr., AIR (1951) Bombay 72; S. Parthasarthy Aiyar v. M. Subbaraya Gramany and Anr., AIR (1924) Madras 67; Mt. Azimunnisa Begum v. Sirdar Ali Khan and Ors., AIR (1927) Bombay 387; Cherichi v. Ittianam and Ors., AIR (2001) Kerala 184; Sheonath Singh v. Madanlal, AIR (1959) Raj. 243; Mrs. Hem Nolini Judah v. Mrs. Isolyne Sarojbashini Base and Ors. AIR (1962) SC 1471; Komollochun Dutt and Ors. v. Nilruttun Mundle 4 ILR Cal.360; Akshay Kumar Pal v. Nandalal Das, ILR (1946) 1 Cal. 432 and Valerine Basil Pais (dead) by Lrs. v. Gilbert William James Pais and Anr., (1993) 2 Kar. LJ 301, referred to. 1.4. The finding of the Trial Court is perverse since it is clear that the probate was revoked only on account of non-citation and despite this evidence, the Trial Court holds that the probate was revoked on the ground of forgery and fraud apart from non-citation. Hence, finding of the Trial Court is unsustainable for want of evidence. [60-F, G, H] 2.1. The testator had married thrice. His first wife pre-deceased him. When he made the will he had two wives and nine children. He was strong willed person who was conscious of his legal rights and had considerable properties. During his life time itself, he asserted his legal rights qua the tenants and used to litigate on every issue. He collected rent from the tenants. He filed eviction and rent collection suits against the tenants. He sued his second wife by filing numerous cases. He was at one point of timeliving with his second wife and her sons in one of the properties. However, his second wife and her sons started disobeying him; they were ungrateful to him; he was ill-treated by them and that thereafter he has been living with his third wife and her son. In the circumstances, there was no question of defendant No.2, executor of the will influencing his father/testator in the making of the will bequeathing the suit premises to him. [62-G, H; 63-A; 64-B-C-D] 2.2. The evidence shows that during the life time of the testator, agreements for sale of the properties, 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 the deceased/testator, certain amount was received by the testator himself from defendant No.l4/vendee, which is uncontroverted evidence, and which indicates that the testator was aware of Ex.A/1 and that he intended to sell the suit premises to defendant No.14. Fur her, he lived for almost three years after making the will. He found defendant No.2 to be obedient. He loved defendant Nos. 1 and 2. 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 basic error committed by the Courts below is that it has examined the alleged suspicious circumstances de hors the tell-tale circumstances duly established by evidence and the contents of the will. 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 the testator had approved the impugned disposition in favour of defendant No.2. [64-E, F, G, H; 65-A] Surendra Nath Chatterji v. Jahnavi Charan Mukherji, AIR (1929) Cal. 484 and Smt. Indu Bala Base and Ors. v. Manindra Chandra Base and Anr., AIR (1982) SC 133, referred to. 3.1. The Trial Court has placed reliance on the affidavit of defendant No.l, third wife of the testator, in which she has alleged that the will was forged; and that it was outcome of undue influence exercised by defendant No.2 on his father. However, the said affidavit has been filed by her at an interim stage and it is not put in evidence. Subsequently, she filed another affidavit whereby she confirms the signature of her husband, the testator on the power of attorney in favour of defendant No.2. She also confirms the sale by defendant No.2 in favour of defendant No.14. Defendant No.2 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 alleged suspicious circumstance stood cleared. [65-B, C, D] 3.2. The execution of power of attorney by the testator was found to be abnormal by the Trial Court. He was 90 years of age. Negotiation for sale is a tedious and laborious task. Though he was hale and hearty but to negotiate and sell the property was difficult for an old man. Hence, there could be no abnormality in the son being appointed as constituted attorney, particularly when under the will he was the legatee. The Trial Court has come to the conclusion that the power of attorney was not produced in evidence by him and consequently execution of Ex.A/1 by constituted attorney was to defraud the testator and his heirs. However, the Trial Court has failed to consider the evidence of defendant No.2 stating that a part of sale consideration was received by the testator. [65-D, E, F] 3.3 Another circumstance which the Trial Court takes into account is that defendant No.2 has received payments of Rs.9.54 lacs whereas under the agreement (Ex.A/1) he was entitled to receive Rs.15 lacks. However, no suggestion was put to him in cross-examination on this point. In the absence of allegations the Trial Court could not have proceeded on the circumstance to hold that property was sold at a lesser price. In fact, there was no such plea taken by the plaintiffs/legal heirs. [65-G, H; 66-A, B] Surendra Nath Chatterji v. Jahnavi Charan Mukherji, AIR (1929) Cal. 484, referred to. 3.4. The Trial Court placed reliance on revocation of probate. According to the Trial Court the will was forged. However, this finding was without evidence. [66-C] Naresh Chandra Ghosh and Ors. v. Archit Vanijya and Viniyog Ltd. and Ors., (1998) 2 Cal. L.J. 344, distinguished. 4. The findings of the Courts below 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. It is reiterated 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. The findings of the Courts below are perfunctory. High Court has given a finding that in 1982 defendant No.2 got impleaded in a suit without disclosing the conveyance. No particulars of the order of impleadment have been given. However, it has been found that order dated 21.8.1982 passed by Additional District Judge in Misc. Case No.3/80 in which the testator was a party as a shebait and the subject matter of the case was quite different. Further, Ex.A/8 in the present case concerning the suit premises was not relevant in the Misc. case as the subject matter of the two cases was different That in any event the order was not put to defendant No.2 in cross-examination. In the circumstances, the High Court erred in holding that defendant No.2 had deliberately withheld the disclosure of the conveyance and the probate. [66-F, G; 67-B, C, D, E] 5. The High Court has also given a finding that defendant No.2 had obtained the probate fraudulently without service of citation on his mother and two step sisters. There is no evidence. On the contrary, the Probate Court had rejected the application for revocation made by another son of the testator on the ground of forgery and fraud. High Court erred in disbelieving defendant No.2 when he deposed that his two step sisters 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. After revocation, defendant No.2 applied for revival of proceedings; that order of revival was passed and it was challenged by one of the sons of the testator. Therefore, these circumstances indicate the strained relationship between the parties, their propensity to litigate at every stage have not been considered by the Courts below. Hence, the findings of the Courts below are based on conjectures and suspicion and that relevant circumstances have not been taken into account. [67-F, H; 68-A, B] 6. 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. [68-E, F] Valerine Basil Pais (dead) by Lrs. v. Gilbert William James Pais and Anr., (1993) 2 Kar. L.J. 301, referred to. 7. 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. The evidence shows the propensity of the family to litigate on every issue. Appellant, 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 these circumstances, after the probate, the developers were bound to expedite the sale. Even according to the Division Bench of the High Court, defendant No.2 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 defendant No.2 and defendant No.14. [70-C, D, E] 8. The second wife of the testator was aware of the will. However, she did not apply for letters of administration. She did not challenge the will. The plaint was amended. The developers demolished the old building and constructed a multi-storied building. They got freed the property from all encumbrances. In the circumstances, it cannot be said that the other heirs of testator had no knowledge of these events. Hence, the test laid down by the High Court in the case of Naresh Chandra Ghosh and Ors. v. Archil Vanijya & Viniyog Ltd. and Ors. 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 the testator allowed defendant No.2 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 the testator. Hence, defendant No.14 was bona fide purchaser for value. [71-B, C, D, E] Gurbaksh Singh v. Nikka Singh and Anr., AIR (1963) SC 1917, relied on. Seshumull M. Shah v. Sayed Abdul Rashid and Ors. AIR (1991) Kar.273 and Naresh Chandra Ghosh and Ors. v. Archit Vanijya & Viniyog Ltd. and Ors., (1998) 2 Cal. L.J. 344, approved. 9. Under the will, the suit premises have been bequeathed by the testator to defendant No.2, his son from the third wife 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 the testator. In the circumstances, 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. Before the Trial Court, defendant No.14 and defendant Nos. 15 to 20 had asked for stay of the partition suit pending decision by the Probate Court. It was objected to by the plaintiffs. The objection of the plaintiffs was upheld and the matter was decided against the defendants. Besides, 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. [71-G; 72-D, E] G.F.F. Foulkes and Ors. v. A.S. Suppan Chettiar and Anr., AIR (1951) Madras 296, referred to. 10.1. 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 incumbent duty of the Court 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. [72-F, G] 10.2.In the instant case, the concurrent findings recorded by the Courts below are interfered with. The judgment and decree of both the Courts below are set aside and the suit for partition stands dismissed. Interim order, if any, against the appellants stands vacated. [72-H; 73-A] CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6258 of 2000. =2004 AIR 4980, 2004(5 )Suppl.SCR31 , 2005(9 )SCC375 , 2004(8 )SCALE390 , 2004(9 )JT64

CASE NO.:
Appeal (civil) 6258 of 2000
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PETITIONER:
Crystal Developers 

RESPONDENT:
Smt. Asha Lata Ghosh (Dead)Thr.Lrs.Ors.

DATE OF JUDGMENT: 05/10/2004

BENCH:
ASHOK BHAN & S.H. KAPADIA

JUDGMENT:
J U D G M E N T

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 
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:
 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 premises.

 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 defendant no.2. 

 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 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 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 named therein. 
That the will has been executed when Balai Chand was 
90 years old. That the will was signed on 25.12.1977 but 
the same was registered on 4.1.1978; that the will was 
registered at the residence of Balai Chand in the presence 
of the Registrar, however, so far as the power of attorney 
is concerned, it was registered at the office of the 
Registrar on the same day i.e. 4.1.1978. That it is 
incomprehensible as to why none of the plaintiffs failed 
to respond to the notice issued by the Probate Court. In 
the circumstances, it was submitted that the will was 
surrounded by suspicious circumstances aforestated, 
apart from the circumstances mentioned in the impugned 
judgments and further that those circumstances indicated 
that even the probate was obtained fraudulently. 

 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 31.7.1981. 

 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.

 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 section 213, no 
right as an executor or a legatee can be established in any 
Court, unless probate of the will is granted, by the 
Probate Court, under which the right is claimed. 
Similarly, no right as executor or legatee can be 
established in any Court unless the competent Court 
grants letters of administration with the will annexed 
thereto. Sections 211, 212 and 213 brings out a 
dichotomy between an executor and an administrator. 
They indicate that the property shall vest in the executor 
by virtue of the will whereas the property will vest in the 
administrator by virtue of the grant of the letters of 
administration by the Court. These sections indicate that 
an executor is the creature of the will whereas an 
administrator derives all his rights from the grant of 
letters of administration by the Court. Section 214 states 
inter alia that no debt owing to a deceased testator can be 
recovered through the Court except by the holder of 
probate or letters of administration or succession 
certificate. Section 216 inter alia lays down that after 
any grant of probate or letters of administration, no 
person other than such grantee shall have power to sue or 
otherwise act as a representative of the deceased, until 
such probate or letters of administration is recalled or 
revoked. Part IX of the Act deals with probate, letters of 
administration and administration of assets of deceased. 
Under section 218(1), if the deceased is a Hindu, having 
died intestate, administration of his estate may be granted 
to any person who, according to the rules for the 
distribution of the estate applicable to such deceased, 
would be entitled to. Under section 218(2), when several 
such persons apply for letters of administration, it shall 
be in the discretion of the Court to grant letters of 
administration to any one or more of such persons. 
Section 220 refers to effect of letters of administration. It 
inter alia states that letters of administration entitles the 
administrator to all rights belonging to the intestate. 
Section 221 inter alia states that letters of administration 
shall not render valid any intermediate acts of the 
administrator which acts diminish or damage the estate of 
the intestate. Sections 218, 219, 220 and 221 are relevant 
in the present case as they indicate that nothing prevented 
the intestate heirs of Balai Chand to apply for letters of 
administration, particularly when they alleged that Balai 
Chand died without making a will. Moreover, section 
221 indicates that intermediate acts of the administrator 
which damage or diminish the estate are not validated. 
This section brings out the difference between letters of 
administration and probate. Section 221 expressly states 
that certain intermediate acts of the administrator are not 
protected as the authority of the administrator flows from 
the grant by the competent court unlike vesting of the 
property in the executor under the will (see: section 211). 
Section 222 states that probate shall be granted only to an 
executor appointed by the will. Section 227 deals with 
effect of probate. It lays down that probate of a will 
when granted establishes the will from the date of the 
death of the testator and renders valid all intermediate 
acts of the executor. Section 227 is, therefore, different 
from section 221. As stated above, in the case of letters 
of administration, intermediate acts of the grantee are not 
protected whereas in the case of probate, all such acts are 
treated as valid. Further, section 227 states that a 
probate proves the will right from the date of the death of 
the testator and consequently all intermediate acts are 
rendered valid. It indicates that probate operates 
prospectively. It protects all intermediate acts of the 
executor as long as they are compatible with the 
administration of the estate. Therefore, section 221 read 
with section 227 brings out the distinction between the 
executor and holder of letters of administration; that the 
executor is a creature of the will; that he derives his 
authority from the will whereas the administrator derives 
his authority only from the date of the grant in his favour 
by the Court. Section 235 inter alia states that letters of 
administration with the will annexed shall not be granted 
to any legatee, other than universal or residuary legatee, 
until a citation has been issued and published calling on 
the next-of-kin to accept or refuse letters of 
administration. Such provision is not there in respect of 
grant of probate. In the circumstances, the judgment in 
the case of Debendra Nath Dutt & 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 initio void. 
Under section 263, as stated above, grant of probate or 
letters of administration is liable to be revoked on any of 
five grounds mentioned therein. One of the grounds as 
stated above is failure on the part of the grantee to 
exhibit/file an inventory or statement of account. 
Similarly, the probate or letter or administration is liable 
to be revoked if the grant is obtained fraudulently. Can it 
be said that revocation of the probate on the ground of 
non-exhibiting an inventory or statement of account will 
make the grant ab initio void so as to obliterate all 
intermediate acts of the executor? If it is not ab initio 
void in the case of non-filing of inventory or statement of 
account then equally it cannot be ab initio void in the 
case of a grant obtained fraudulently. In other words, 
what applies to clause (e) of the explanation equally 
applies to clause (b) of the explanation. At this stage, we 
clarify that if the intermediate act of the executor is not 
for the purpose of administration of the estate or if the act 
is performed in breach of trust then such act(s) is not 
protected. However, acts which are in consonance with 
the testator's intention and which are compatible with the 
administration of the estate are protected. Therefore, on 
reading sections 211, 227 along with section 263, it is 
clear that revocation of the grant shall operate 
prospectively and such revocation shall not invalidate the 
bona fide intermediate acts performed by the grantee 
during the pendency of the probate. 

 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 
Act, 1925]. In the said judgment, it has been observed 
that in cases where the probate has been given in the 
common form, and not in the solemn form, the Probate 
Court may call upon the propounder to prove the will in 
the presence of the objector afresh so as to give the 
objector an opportunity of testing the evidence in support 
of the will. This judgment, therefore, lays down that 
even when the probate issued in the common form is 
revoked under section 263 the revocation operates 
prospectively; that on revocation parties are given an 
opportunity to prove the will afresh. To the same effect 
is the ratio of the judgment in the case of Mt. Ramanandi 
Kuer 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 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 14.5.1986, Bhabesh applied for revocation on two 
grounds, namely, that the will was forged and that the 
probate was obtained fraudulently by defendant no.2. 
Vide order dated 18.9.1986, the Probate Court dismissed 
the application of Bhabesh. On 25.3.1987, an identical 
application was made by Parul and Manju for revocation 
of the grant alleging fraud, forgery and non-citation. By 
order dated 9.7.1987, the Probate Court revoked the 
grant. PW1 in his evidence has deposed that the probate 
was revoked on account of non-citation. Therefore, 
reading the aforestated orders and the evidence of PW1, 
it is clear that the probate was revoked only on account of 
non-citation. Despite this evidence, the trial Court holds 
that the probate was revoked on the ground of forgery 
and fraud apart from non-citation. In our view, this 
finding is unsustainable for want of evidence.

 Learned counsel for the plaintiffs, however, 
submitted that the initial onus was on defendant no.2 or 
defendant no.14 to prove the genuineness of the will. It 
was submitted that the will of Balai Chand was 
surrounded by numerous suspicious circumstances which 
have been taken into account by both the Courts below. 
In this connection, reliance was placed on the following 
factors:
(i) Execution of Ex.A/1 and Ex.A/2 by 
defendant no.2 as constituted attorney of 
Balai Chand even when Balai Chand was 
alive;

(ii) Affidavit of Mamta dated 25.9.1997 stating 
that Balai Chand was unduly influenced by 
defendant no.2. That the will was forged;

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

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

(v) That under clause (2) of Ex.A/1, the rate at 
which the suit premises were agreed to be 
sold was 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 High Court;

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

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

 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. 
No.
Suit No. 
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 him.

 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 probate. 
According to the trial Court Arindam had obtained the 
probate fraudulently. According to the trial Court the 
will was forged. As stated above, this finding was 
without evidence. As stated above, the application dated 
14.5.1986 by Bhabesh on the aforesaid grounds was 
dismissed. PW1 has stated that probate was revoked for 
non-citation pursuant to application by his sisters. 
Hence, the trial Court had given the finding without 
evidence. In this connection the trial Court relied upon 
the interim order passed by the Division Bench of the 
High Court in the case of Naresh Chandra Ghosh & 
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. 
301].

 Applying the above tests to the evidence on record 
we find that Balai Chand had strained relationship with 
his first two wives; that he had differences with his sons 
from the first two wives; that there were litigations writ 
galore between them; that Balai Chand loved Arindam 
and that he had bequeathed the suit premises to Arindam 
under the above will. Further, the sons of Nirmala have 
fought legal battles on every issue both during the life 
time of Balai Chand and even after his demise. Even 
after revocation, Ramesh had objected to revival of 
probate proceedings. These circumstances are relevant 
because the main ground on which the Courts below have 
proceeded to declare Ex.A/8 as fictitious, although there 
is no plea, was the speed with which Ex.A/8 came about. 
According to the impugned judgments the manner in 
which suit no.310/81 was filed without impleading the 
other heirs and the manner in which Ex.A/8 came to be 
executed on 4.8.1981 after the grant on 31.7.1981, 
without reference to the consent decree dated 3.8.1981 in 
suit no.310/81, proved that Ex.A/8 was collusive and 
fictitious having being entered into to defeat the claims of 
the intestate heirs. These findings of the Courts below 
are without consideration of the relevant circumstances. 
After the will dated 25.12.1977, Ex.A/1 was executed on 
12.3.1979 followed by supplemental agreement dated 
21.7.1980 (Ex.A/2) under which Balai Chand agreed to 
sell the suit premises to defendant no.14. It is true that 
Ex.A/1 and Ex.A/2 have been signed by Arindam as 
constituted attorney of Balai Chand. However, it would 
not be correct to say that Balai Chand was not aware of 
Ex.A/1 and Ex.A/2. In this connection, DW1 has 
deposed that 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 alienate. 
That he need not wait till the probate. For filing the said 
suit no.310/81, probate was not required. However, 
before the decree, probate had been obtained. In the 
circumstances, without allegation of collusion against 
developers, both the Courts erred in holding, without 
evidence, that Ex.A/8 was collusive as it was got 
executed expeditiously. Here also, we find that relevant 
evidence has not been taken into account. The evidence 
shows the propensity of the family to litigate on every 
issue. The developers had invested huge amount not 
only in the payment of consideration but also by way of 
costs incurred to free the suit premises from requisition, 
acquisition and other encumbrances including eviction of 
tenants. Under the above circumstances, after the 
probate, the developers were bound to expedite the sale. 
Even according to the Division Bench of the High Court, 
Arindam was not reliable. In the circumstances, without 
evidence, the Courts below erred on the basis of 
expedition of sale that Ex.A/8 was fictitious and based on 
collusion between Arindam and defendant no.14. 
Similarly, for the aforestated reasons, both the Courts 
below erred in holding that probate was obtained 
fraudulently without effecting service on Parul and 
Manju.

 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 without 
notice. 

 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 stands vacated. 

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.

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