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CASE NO.: Appeal (civil)  6258 of 2000

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.       \005Appellants   

Versus

Smt. Asha Lata Ghosh (Dead) Through LRs. & Others                           \005Respondents

AND  

CIVIL APPEAL Nos.6871-6873/2003.

Archit Vanijya & Viniyog Pvt. Ltd. & Ors.       \005Appellants   

Versus

Arindam Ghosh & Others                  \005Respondents

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.

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       The facts giving rise to these appeals are as  follows:\027         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

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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:\027 (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

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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

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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

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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

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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.  

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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

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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.

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       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

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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:\027

(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?

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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

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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

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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

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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:\027         "\005 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\005."

       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

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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].          

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       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.

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       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:\027 (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

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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

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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:\027 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

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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

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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

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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

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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

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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

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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

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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,

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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

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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

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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.