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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