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

- **Citation:** [2004] Supp. 5 S.C.R. 31
- **Court:** Supreme Court of India
- **Decided:** 2004-10-05
- **Case number:** Civil Appeal No. 6258 of 2000
- **Bench:** Ashok Bhan, S.H. Kapadia
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/crystal-developers-etc-etc-v-smt-asha-lata-ghosh-dead-through-lrs-and-ors-etc-20313
- **Pages:** 43

## Headnote

Indian Succession Act, 1925; Ss. 2(/), 2(h), 63, 2Jl, 212, 213, 214, 218,
219, 220, 221, 227, 235, 263, 273, 278, 297, 307 and 332:
Testator bequeathing property in dispute to his son from third wife
ignoring other legal heirs-Grant of probate/Letter of Administration-Suit
A
B
c
for partition of the property filed by other legal heirs-Agreements to sell the
property in dispute entered into between the testator and vendee-Execution
thereof by the executor-son after death of his father/testator-Revocation of D
probate on ground of non-citation-Sale transactions-Validity of-Held:
Agreement to sell the property executed and certain amount as part
consideration received by testator himself during his life time-Testator had
strained relations with his second wife and sons but had cordial relations with
his third wife and son-Testator bequeathed his properties to his son from
third wife out of love and affection, and appointed the son as constituted E
attorney for negotiations and selling of the property-No abnormality found
in testator appointing one of his sons as constituted attorney-Trial Court
failed to take into account the proved preponderatory circumstances but was
influenced by unconsequential matters in holding the will as not genuineGrant of Probate establishes the genuineness of the will-Grantee entitled to F
convey the title-If propounder did not take appropriate steps by mistake to
notify his heirs_ before obtaining probate, third party/purchaser, if acted
bonafidely, not answerable to the mistake committed by the grantee-Since
Vendees invested huge amount to free the suit premises from requisition,
acquisition and other encumbrances, they were . bound to expedite the 3ale
after grant of probate-Since partition suit filed by other legal heirs, sons G
from second wife of the testator, and the suit premises got demolished and a
new building constructed thereon, it shows that other legal heirs also had
knowledge of these events-They knowingly allowed the executor of the will
to represent himself as owner of the suit property-Hence, Vendee is bona fide
31
H
32
SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.
A purchaser for value-Indian Evidence Act, 1872-Section 68.
..-..~
Effect of affidavit and counter affidavit on the genuineness of the willHeld: Initially mother of the executor alleged the will as forged in terms of
affidavit filed by her at an interim stage of the proceedings, she rectified the
earlier statement by supporting the genuineness of contents and signatures of
B testator on the will by filing another affidavit-'{hese evidence not shakenHence, alleged suspicious circumstances stand cleared.
'(
Revocation of grant-Circumstances-Held: Liable to be revoked if
obtained fraudulently-Probate Court revoked the grant on ground of nonc
citation-Since the executor of the will deposed that he could not cite his two
step sisters due to mis-conception and not on account of fraud, Courts below
erred in concluding that the probate was obtained by the executor fraudulently.
Constitution of India, I950; Article I36-Scope of-Discussed.
D
Transfer of Property Act-Section 41-Applicability of-Discussed.
Words and Phrases: 'Executor' and' administrator-Distinction between
A partition suit was filed by the legal heirs, sons of the deceased/
testator, claiming their share in the properties. The deceased had three
E
wives (One of whom died during his life time) and nine children. He was
living along with his third wife (defendant No.I) and son (defendant No.2)
since he. was having strained relations with his second wife and other
children. Defendant No.2 contested the suit relying on several documentary
evidence including the registered Will made by his father during his life
time, bequeathing the disputed properties in his favour. The disputed
F property was transferred by defendant No.2 in favour of the appellant/
Vendee (defendant No.I4 in the suit). Subsequently the property was
transferred by the appellant in favour of defendant No

## Text

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--
CRYSTAL DEVELOPERS ETC. ETC.
v.
SMT. ASHA LATA GHOSH (DEAD) THROUGH LRS. AND ORS.,
ETC. ETC.
OCTOBER 5, 2004
[ASHOK BHAN AND S.H. KAPADIA, JJ.]
Indian Succession Act, 1925; Ss. 2(/), 2(h), 63, 2Jl, 212, 213, 214, 218,
219, 220, 221, 227, 235, 263, 273, 278, 297, 307 and 332:
Testator bequeathing property in dispute to his son from third wife
ignoring other legal heirs-Grant of probate/Letter of Administration-Suit
A
B
c
for partition of the property filed by other legal heirs-Agreements to sell the
property in dispute entered into between the testator and vendee-Execution
thereof by the executor-son after death of his father/testator-Revocation of D
probate on ground of non-citation-Sale transactions-Validity of-Held:
Agreement to sell the property executed and certain amount as part
consideration received by testator himself during his life time-Testator had
strained relations with his second wife and sons but had cordial relations with
his third wife and son-Testator bequeathed his properties to his son from
third wife out of love and affection, and appointed the son as constituted E
attorney for negotiations and selling of the property-No abnormality found
in testator appointing one of his sons as constituted attorney-Trial Court
failed to take into account the proved preponderatory circumstances but was
influenced by unconsequential matters in holding the will as not genuineGrant of Probate establishes the genuineness of the will-Grantee entitled to F
convey the title-If propounder did not take appropriate steps by mistake to
notify his heirs_ before obtaining probate, third party/purchaser, if acted
bonafidely, not answerable to the mistake committed by the grantee-Since
Vendees invested huge amount to free the suit premises from requisition,
acquisition and other encumbrances, they were . bound to expedite the 3ale
after grant of probate-Since partition suit filed by other legal heirs, sons G
from second wife of the testator, and the suit premises got demolished and a
new building constructed thereon, it shows that other legal heirs also had
knowledge of these events-They knowingly allowed the executor of the will
to represent himself as owner of the suit property-Hence, Vendee is bona fide
31
H
32
SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.
A purchaser for value-Indian Evidence Act, 1872-Section 68.
..-..~
Effect of affidavit and counter affidavit on the genuineness of the willHeld: Initially mother of the executor alleged the will as forged in terms of
affidavit filed by her at an interim stage of the proceedings, she rectified the
earlier statement by supporting the genuineness of contents and signatures of
B testator on the will by filing another affidavit-'{hese evidence not shakenHence, alleged suspicious circumstances stand cleared.
'(
Revocation of grant-Circumstances-Held: Liable to be revoked if
obtained fraudulently-Probate Court revoked the grant on ground of nonc
citation-Since the executor of the will deposed that he could not cite his two
step sisters due to mis-conception and not on account of fraud, Courts below
erred in concluding that the probate was obtained by the executor fraudulently.
Constitution of India, I950; Article I36-Scope of-Discussed.
D
Transfer of Property Act-Section 41-Applicability of-Discussed.
Words and Phrases: 'Executor' and' administrator-Distinction between
A partition suit was filed by the legal heirs, sons of the deceased/
testator, claiming their share in the properties. The deceased had three
E
wives (One of whom died during his life time) and nine children. He was
living along with his third wife (defendant No.I) and son (defendant No.2)
since he. was having strained relations with his second wife and other
children. Defendant No.2 contested the suit relying on several documentary
evidence including the registered Will made by his father during his life
time, bequeathing the disputed properties in his favour. The disputed
F property was transferred by defendant No.2 in favour of the appellant/
Vendee (defendant No.I4 in the suit). Subsequently the property was
transferred by the appellant in favour of defendant Nos. I5 to 20. Trial
Court decreed the suit holding that defendant No.I4 was not bona.fide
purchaser since the agreements (Ex.A/I and ExA/2) for sale of the disputed
G
properties were executed by defendant No.2 as constituted attorney when
his. father, owner of the property was alive; that the probate was obtained
by defendant No.2 without service of the citations on his step sisters; that
the suit for specific performance filed by the Vendee was settled in haste
as the transfer deed (Ex.A/8) was executed by defendant No.2 even without
receiving the total consideration amount from the vendee; and that the
property was further sold to defendant Nos. I5 to 20·even after revocation
...
H
I ,
,,.
CRYSTAL DEVELOPERS v. A.L GHOSH
33
• >-.
of the grant of probate. The order of the Trial Court was affirmed by the A
High Court. Hence the present appeals.
It was contended by the appellants that although Ex.All and Ex. Al
2 were executed by defendant No.2 as constituted attorney of the deceased,
certain amount was received by the deceased from defendant No.14 as
evidenced by receipts Ex.A/3 and Ex/A/4, which establish that the deceased B
during his life time had intended to sell the suit property. Thus, Ex.All
~
was binding on him as also on his heirs; that since Ex.A/8 was executed
,,
pursuant to the agreements for sale of the properties, Ex.All, Ex.A/2 and
the probate, it was binding on the estate of the deceased; that it was not
open to the plaintiffs/other legal heirs to impugn transfor deed, Ex.A/8, c
as fictitious or fraudulent as they had acquiesced and allowed the suit
property to be freed from encumbrances by the vendees; that Ex.A/8 was
entered into only after thorough search of the title deeds and the
documents, including the probate; that defendant No.14 had paid the
balance consideration amount to defendant No.2 who was the executor
under the will; that in terms of the order of the Court defendant No.2 was D
brought on record as the executor under the will on demise of his father,
the testator; that the second wife of the deceased was aware of defendant
_,,
No.2 being appointed as an executor; that the probate Court has revoked
the grant only on the ground of non-citation which was admitted by PWl
in his evidence; that the revocation cannot annul the impugned disposition E
which was effected during the period when probate was in existence; that
in the absence. of allegation of fraud or collusion against defendant No.14,
both the Courts below erred in holding that defendant No.14 was not at
arms length to defendant No.2, since fraud and collusion have to be alleged
·~
and proved; and that defendant No.14 had completed the sale only after
the grant of probate. Thus, defendant No.14 was a bona fide purchaser F
and since defendants Nos.15 to 20 had derived title from defendant No.14,
they are also protected.
It was submitted by the respondents that defendant Nos. 14 to 20
were not entitled to rely upon the probate or the will in support of their
G
case in view of the concession made by them before the Division Bench of
the High Court; that probate granted without will being proved in
accordance with Section 63 of the Indian Succession Act and Section 68
of the Evidence Act is void ab initio; that the impugned will was surrounded
by suspicious circumstances and that the onus was on defendant No.2 or
_.....,
defendant No.14 to remove or explain t_hose circumstances; that the H
34
SUPREME COURT REPORTS J2004) SUPP. 5 S.C.R.
(
"'" ~~
A consent decree was a collusive decree entered into with the intention to
defeat the rights of the plaintiffs/other heirs in the partition suit; that
defendant No.14 or defendant Nos. 15 to 20 cannot claim protection for
the transfer, which originated from fraud.; that suit for specific
performance was filed by defendant No.14 to complete the sale at the
B
earliest; that the total price/consideration amount payable was higher but
defendant No.2 transferred the property for lesser amount; ancl that by
surreptitious method, defendant No.14 in connivance with defendant No.2
as constituted attorney executed Ex.A/2 after death of the owner of the
property.
c
Allowing Civil Appeal Nos. 6258 and 6259 of 2000 and disposing of
Civil Appeal Nos. 6871-6873 of 2003 as having become infructuous, the
Court
HELD: 1.1. Sections 211, 212 and 213 of the Indian Succession Act
bring out a dichotomy between an executor and an administrator. They
D indicate that the property shall vest in the executor by virtue of the will
..
whereas the property will vest in the administrator by virtue of the grant
of the letters of administration by the Court. These sections indicate that
an executor is the creature of the will whereas an administrator derives
all his rights from the grant of letters of administration by the Court. In
E
the case of letters of administration, intermediate acts of the grantee are
not protected whereas in the case of probate, all such acts are treated as
valid. [54-B; 55-A)
1.2. Under Section 263 of the Act, grant of probate of letters of
administration is liable to be revoked on any of five grounds mention~d
)c
F therein. One of the grounds is failure on the part of the grantee to exhibit/
file an inventory or statement of account. Similarly, the probate or letter
l ;.
of administration is liable to be revoked if the grant is obtained
fraudulently. If the grant is not ab initio void in the case of non-filing of
inventory or statement of account then equally it cannot be ab·initio void,
if it is obtained fraudulently. If the intermediate act of the executor is not
G for the purpose of administration of the estate or if the act is performed
in breach of trust then such act(s) is not protected. However, acts which
are in consonance with the testator's intention and which are compatible
~
-~
with the administration of the estate are protected. Therefore, on reading
Sections 211, 227 along with Section 263 of the Act, it is clear that
H
revocation of the grant shall operate prospectively and such revocation
....__
...
...
CRYSTAL DEVELOPERS v. A.L GHOSH
35
shall not invalidate the bona fide intermediate acts performed by t"e A
grantee during the pendency of the probate. (55-G, H; 56-A, Bl
1.3. Section 273 of the Act refers to conclusiveness of the probate a~
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 B
Section 41 of the Evidence Act, the grant operates as judgment in rem and
can be set aside on the ground of fraud or collusion provided it is pleaded
and proved by the party so alleging. It is, therefore, not a pure question
of law. Hence, the revocation will not operate retrospectively so as to .
obliterate all intermediate acts of the executor performed during the C
existence of the probate, however, ifthe intermediate acts are incompatible
with the administration of the estate, they will not be protected. That the
conclusiveness under Section 273 is of validity and contents of the will.
[57-B, C, DJ
Lady Dinbai Dinshaw Petit and Ors. v. The Dominion of India and Anr., D
AIR (1951) Bombay 72; S. Parthasaithy Aiyar v. M Subbaraya Gramany
and Anr., AIR (1924) Madras 67; Mt. Azimunnisa Begum v. Sirdar Ali Khan
and Ors., AIR (1927) Bombay 387; Cherichi v. Jttianam and Ors., AIR (2001)
Kerala 184; Sheonath Singh v. Madan/al, AIR (1959) Raj. 243; Mrs. Hem
Nolini Judah v. Mrs. Jsolyne Sarojbashini Bose and Ors. AIR (1962) SC 1471;
Komollochun Dutt and Ors. v. Nilruttun Mundie 4 ILR Cal.360; Akshay E
Kumar Pal v. Nanda/al Das, ILR (1946) 1 Cal. 432 and Valerine Basil Pais
(dead) by Lrs. v. Gilbert William James Pais and Anr., (1993) 2 Kar. LJ 301,
referred to.
1.4. The finding of the Trial Court is perverse since it is clear that
the probate was revoked only on account of non-citation and despite this F
evidence, the Trial Court holds that the probate was revoked on the
ground of forgery and fraud apart from non-citation. Hence, finding of
the Trial Court is unsustainable for want of evidence. [60-F, G, HJ
2.1. The testator had married thrice. His first wife pre-deceased him.
When he made the will he had two wives and nine children. He was strong G
willed person who was conscious of his legal rights and had considerable
properties. During his life time itself, he asserted his legal rights qua the
tenants and used to litigate on every issue. He collected rent from the
tenants. He filed eviction and rent collection suits against the tenants. He
sued his second wife by filing numerous cases. He was at one point of time H
36 .
SUPREME COURT REPORTS (2004] SUPP. 5 S.C.R.
A living with his second wife and her sons in one of the properties. However,
his second wife and her sons started disobeying him; they were ungrateful
to him; he was ill-treated by them and that thereafter he has been living
with his third wife and her son. In the circumstances, there was no question
of defendant No.2, executor of the will influencing his father/testator in
B the making of the will bequeathing the suit premises to him.
(62-G, H; 63-A; 64-B-C-D)
2.2. The evidence shows th.at during the life time of the testator,
agreements for sale of the properties, Ex.All and Ex.A/2, came to be
executed. That although Ex.All and Ex.A/2 were executed by defendant
C No.2 as the constituted attorney of the deceased/testator, certain amount
was received by the testator himself from defendant No.14/vendee, which
is uncontroverted evidence, and which indicates that the testator was
aware of Ex.All and that he intended to sell the suit premises to defendant
No.14. Further, he lived for almost three years after making the will. He
found defendant No.2 to be obedient. He loved defendant Nos. 1 and 2.
D These basic tell-tale circumstances have not been considered by the Courts
below. Both the Courts below have drawn inferences from circumstances
with dead uniformity and without realistic diversity. The basic error
committed by the Courts below is that it has examined the alleged
suspicious circumstances de hors the tell-tale circumstances duly
E established by evidence and the contents of the will. In the light of the
above circumstances, the factors relied upon by the Courts below are not
relevant particularly in the context of deciding the question whether the
testator had approved the impugned disposition in favour of defendant
No.2. [64-E, F, G, H; 65-A)
F
Surendra Nath Chatterji v. Jahnavi Charan Mukherji, AIR (1929) Cal.
484 and Smt. Indu Bala Bose and Ors. v. Manindra Chandra Bose and Anr.,
AIR (1982) SC 133, referred to.
3.1. The Trial Court has placed reliance on the affidavit of defendant
No. l, third wife of the testator, in which she has alleged that the will was
G forged; and that it was outcome of undue influence exercised by defendant
No.2 on his father. However, the said affidavit has been filed by her at an
interim stage and it is not put in evidence. Subsequently, she filed another
affidavit whereby she confirms the signature of her husband, the testator
on the power of attorney in favour of defendant No.2. She also confirms
the sale by defendant No.2 in favour of defendant No.14. Defendant No.2
H in his evidence has explained that the first affidavit was filed by his mother
..
CRYSTAL DEVELOPERS v. A.L GHOSH
37
under misconception and subsequently on going through the papers she A
had rectified her earlier position. This evidence has not been shaken.
Therefore, the alleged suspicious circumstance stood cleared. (65-B, C, DI
3.2. The execution of power of attorney by the testator was found to
be abnormal by the Trial Court. He was 90 years of age. Negotiation for
sale is a tedious and laborious task. Though he was hale and hearty but B
to negotiate and sell the property was difficult for an old man. Hence, there
could be no abnormality in the son being appointed as constituted attorney,
particularly when under the will he was the legatee. The Trial Court has
come to the conclusion that the power of attorney was not produced in
evidence by him and consequently execution of Ex.A/I by constituted C
attorney was to defraud the testator and his heirs. However, the Trial
Court has failed to consider the evidence of defendant No.2 stating that a
part of sale consideration was received by the testator. (65-D, E, Fl
3.3 Another circumstance which the Trial Court takes into account
is that defendant No.2 has received payments of Rs.9.54 lacs whereas under D
the agreement (Ex.A/I) he was entitled to receive Rs.15 lacks. However,
no suggestion was put to him in cross-examination on this point. In the
absence of allegations the Trial Court could not have proceeded on the
circumstance to hold that property was sold at a lesser price. In fact, there
was no such plea taken by the plaintiffs/legal heirs. (65-G, H; 66-A, BJ
Surendra Nath Chatterji v. Jahnavi Charan Mukherji, AIR (1929) Cal.
484, referred to.
3.4. The Trial Court placed reliance on revocation of probate.
According to the Trial Court the will was forged. However, this finding
was without evidence. [66-C]
F
Naresh Chandra Ghosh and Ors. v. Archit Vanijya and Viniyog Ltd and
Ors., (1998) 2 Cal. L.J. 344, distinguished.
4. The findings of the Courts below are not based on evidence. The
Trial Court has failed to take into account the proved preponderatory G
circumstances and it was influenced by inconsequential matters in holding
that the will was not genuine. It is reiterated that revocation of the probate
operates prospectively; that such revocation does not obliterate bona fide
transactions entered into by the executor during the pendency of the
probate. The findings of the Courts below are perfunctory. High Court' H
38
SUPREME COURT REPORTS [2004] SUPP. S S.C.R.
A has given a finding that in 1982 defendant No.2 got impleaded in a suit
without disclosing the conv!'!yance. No particulars of the order of
impleadment h~ve been given. However, it has been found that order dated
21.8.1982 passed by Additional District Judge in Misc. Case No.3/80 in
which the testator was a party as a shebait and the subject matter of the
B case was quite different. Further, Ex.A/8 in the present case concerning
the suit premises was not relevant in the Misc. case as the subject matter
of the two cases was different. That in any event the order was not put to
defendant No.2 in cross-examination. In th~ circumstances, the High Court
erred in holding that defendant No.2 had deliberately withheld the
disclosure of the conveyance and the probate. (66-F, G; 67-B, C, D, E]
c
5. The High Court has also given a finding that defendant No.2 had
obtained the probate fraudulently without service of citation on his mother
and two step sisters. There is no evidence. On the contrary, the Probate
Court had rejected the application for revocation made by another son
of the testator on the ground .of forgery and fraud. High Court erred in
D disbelieving defendant No.2 when he deposed that his two step sisters were
not cited as they were not the legatees. This was due to misconception and
not on account of fraud. Lastly, the High Court has observed that the will
is lying in the state of derelict without being probated. After revocation,
defendant No.2 applied for revival of proceedings; that order of revival
E was passed and it was challenged by one of the sons of the testator.
Therefore, these circumstances indicate the strained relationship between
the parties, their propensity to litigate at every stage have not been
considered by the Courts below. Hence, the findings of the Courts below
are based on conjectures and suspicion and that relevant circumstances
have not been taken into account. [67-F, H; 68-A, BJ
F
..
'
6. The grant of probate establishes the genuineness of the will and
the person in whose favour the probate is granted is entitled to convey
the title arising out of the will probated by the Court. It may happen that
the propounder did not take appropriate steps, by mistake, to notify the
other heirs before obtaining probate. But the third party who acts bona
G fide and deals with ttie grantee cannot be made answerable to the fraud
o_r mist~kes committed by the propounder. (68-E, F]
Valerine Basil Pais (dead) by Lrs. v. Gilbert William James Pais and
Anr., (1993) 2 Kar. L.J. 301, referred to.
H/
' ..
\.
CRYSTAL DEVELOPERS v. A.L GHOSH
39
7. Without allegation of collusion against developers, both the Courts A
erred in holding, without evidence, that Ex.A/8 was collusive as it was got
executed expeditiously. The evidence shows the propensity of the family
to litigate on every issue. Appellant, the developers had invested hug(l
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 B
encumbrances including eviction of tenants. Under these circumstances,
after the probate, the developers were bound to expedite the sale. Even
according to the Division Bench of the High Court, defendant No.2 was
not reliable. In the circumstances, without evidence, the Courts below
erred on the basis of expedition of sale that Ex.A/8 was fictitious and based
on collusion between defendant No.2 and defendant No.14. [70-C, D, El
C
8. The second wife of the testator was aware of the will. However,
she did not apply for letters of administration. She did not challenge the
will. The plaint was amended. The developers demolished the old building
and constructed a multi-storied building. They got freed the property from
D
all encumbrances. In the circumstances, it cannot be said that the other
heirs of testator had no knowledge of these events. Hence, the test laid
down by the High Court in the case of Naresh Chandra Ghosh and Ors. v.
Archit Vanijya & Viniyog Ltd and Ors. in the matter of applicability of
Section 41 of the Transfer of Property Act is squarely applicable to the
facts of the present case. The intestate heirs of the testator allowed E
defendant No.2 to represent to the developers that he was the owner of
the suit premises. It is established by the conduct of the inaction on the
part of the intestate heirs of the testator. Hence, defendant No.14 was bona
fide purchaser for value. [71-B, C, D, E]
Gurbaksh Singh v. Nikka Singh and Anr., AIR (1963) SC 1917, relied F
on.
Seshumull M Shah v. Sayed Abdul Rashid and Ors. AIR (1991) Kar.273
and Naresh Chandra Ghosh and Ors. v. Archit Vanijya & Viniyog Ltd. and
Ors., (1998) 2 Cal. L.J. 344, approved.
9. Under the will, the suit premises have been bequeathed by the
testator to defendant No.2, his son from the third wife who is also
appointed as an executor. Therefore, there is nothing to suggest that Ex.A/
8 was incompatible with the administration of the estate of the testator.
G
In the circumstances, defendant No.14 was a bona fide purchaser for value H
40
SUPREME COURT REPORTS [2004) SUPP. 5 S.C.R.
A and the alienation effected by defendant No.14 in favour of defendants
No.15 to 20 was valid. Before the Trial Court, defendant No.14 and
defendant Nos. 15 to 20 had asked for stay of the partition suit pending
decision by the Probate Court. It was objected to by the plaintiffs. The
objection of the plaintiffs was upheld and the matter was decided against
B
the defendants. Besides, before the Trial Court, it was the plaintiffs who
had relied upon the alleged suspicious circumstances surrounding the will.
In the circumstances, defendants No.14 to 20 cannot be prevented from
relying on the probate and the will. [71-G; 72-D, E)
G.F.F. Foulkes and Ors. v. A.S. Suppan Chettiar and Anr., AIR (1951)
c Madras 296, referred to.
10.1. Generally, this Court does not interfere with the concurrent
findings recorded by the Courts below in civil appeals by way of special
leave under Article 136 of the Constitution of India. However, in cases
where the Courts below have given findings on documents and m1 the basis
D of assumption and inferences founded on facts and circumstances, which
in themselves offer no direct or positive support for the conclusion reached,
it is incumbent duty of the Court to review such inferential process. In
such cases, the right of this Court to review such inferential process cannot
be denied. It is well settled that inferences have to be drawn from a given
E
set of facts and circumstances with realistic diversity and not with dead
unifo(mity. [72-F, GJ
, ..
10.2.In the instant case, the concurrent findings recorded by the
Courts below are interfered with. The judgment and decree of both the
Courts below are set aside and the suit for partition stands dismissed.
F Interim order, if any, against the appellants stands vacated. [72-H; 73-A)
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6258 of
2000.
From the iudgment and Order dated 7.9.2000 of the Calcutta High
G Court in A.No. 47 of 2000.
WITH
C.A. Nos. 6259/2000 and 6871-6873 of 2003.
Shanti Bhushan, Ranjit Kumar, Hiren Dasan, Mrs. Sarla Chandra,
H Srikanto Roy and Sanjay K. Pathak for the Appellants.
,, ,,..
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' .
CRYSTAL DEVELOPERS v. A.L GHOSH [KAPADIA, J.)
41
Mukul Rohtagi, R.K. Shukla, Ms. Sandhya Goswami, Bijan Kumar A
Ghosh, Dhruv Mehta, Sakya Singha Chaudhuri, Mohit Chaudhry, Ms.
Sawhney, D.P. Mukherjee, Ms. Nandini Mukherjee, S.K. Bhattacharya, Uijwal
Banerjee, H.K. Puri and H.C. Kharbanda for the Respondents.
The Judgment of the Court was delivered by
B
KAPADIA, J.
CIVIL APPEALS N0.6258-6259 OF 2000
These civil appeals, by grant of special leave, are directed against the
judgment and order dated 4.9.7000 passed by the High Court of Calcutta in C
First Appeal Nos. 46 and 47 of 2000 confirming the judgment and decree
passed by the Court of 9th Sub Judge, Alipore, Calcutta in Title Suit No.89
of 1981, whereby the suit for partition stood decreed. It may be clarified that
Civil Appeal No.6258 of2000 has been preferred by Crystal Developers who
were original defendant no.14 in title suit no.89/81 whereas Civil Appeal D
No.6259 of 2000 has been filed by Archit Vanijya & Viniyog Pvt. Ltd. and
Ors., original defendants no.15 to 20 in the said suit no.89/81.
Since common questions of law and fact arise in the said Civil Appeals,
the same were heard together and are disposed of by this judgment.
The facts giving rise to these appeals are as follows:
One Balai Chand Ghosh (since deceased) had three wives. His first
wife was Jamuna, from whom he had two sons, Naresh and Paresh. Ninnala
was the second wife of Balai Chand Ghosh, from whom there were four sons
E
and two daughters, namely, Jogesh, Ramesh, Bhabesh and Suresh. The names F
of the two daughters were Parul and Manju. Mamta was the third wife who
had only one issue, Arindam.
On 21.9.1981, the above partition suit no.89/81 was filed in the Court
of 9th Sub Judge, Alipore (hereinafter for the sake of brevity referred to as
"the trial Court"). It was filed by Naresh, Jogesh, Ramesh, Bhabesh, Parul G
and Manju as legal heirs of Balai Chand, who had died on 16.8.1980. Balai
Chand Ghosh left behind him considerable properties, one of which was the
suit premises situate at 9/4, Middleton Row, Calcutta-16. Mamta, the third
wife of Balai Chand wa? defendant no.1 and her son Arindam was defendant
no.2 in the said suit. Nirmala, the second wife of Balai Chand was the third
defendant. Paresh, the son from the first wife, was defendant no.4. Suresh, H
42
. SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.
A son of Balai Chand from the second wjfe, was the 5th defendant. Therefore,
the parties to the suit claimed l/l lth undivided share each in the suit premises.
The suit premises were wholly tenanted on 21st September, 1981 when the
partition suit no.89 of 1981 was filed. In the said suit, a written statement was
filed on 9.5.1983 by defendants no. I and 2, namely, Mamta and her son
Arindam. In the said written statement, Arindam set up the registered will
B made by Balai Chand on 25.I2. I977. He relied on the probate dated 3l.7.I93I;
consent decree dated 3.8.198 I in suit no.310 of I 98 I as also the conveyance
(Ex.A/8) dated 4.8. I 98 I in favour of Crystal Developers, defendant no.14. In
the written statement, defendant no.2 also relied on the order dated 2 I .8. I 982
passed by the Court of 5th Addi. District Judge, Alipore in Miscellaneous
C Case No.3/80 to show that Nirmala had knowledge of the registered will of
Balai Chand and of the appointment of defendant no.2 as the executor under
the said will. In I 993, the plaint was amended and defendant no.14 was
brought on record. It is alleged that on inspection of assessment record of the
municipality on 22.6. I 993 and 22.8. I 993, the plaintiffs came to know of the
impugned transfer. According to the amended plaint, Mamta {defendant no. I)
D and Arindam (defendant no.2) had sold, in collusion with each other, the suit
premises to defendant no. I4 to prevent the plaintiffs from claiming the same;
that prior to the transfer, defendants no. I and 2 did not serve notice to the
other heirs of Balai Chand; that the plaintiffs were not aware of the agreement
for sale dated I2.3.1979 (Ex.All), the supplemental agreement for sale dated
E 21. 7 .1980 (Ex.A/2), the conveyance dated 4.8.1981 (Ex.A/8); that defendants
no.I and 2 never acquired any indefeasible title and consequently Ex.A/I,
Ex.A/2 and Ex.A/8 were null and void and not binding on the other heirs of
Balai Chand. The plaintiffs, accordingly, prayed for a preliminary decree for
partition of the suit premises after declaring the plaintiffs l/l lth share in the
suit premises.
F
In the written statement, defendant no.14 - Crystal Developers (the
appellant in C.A. No.6258/2000) alleged that the present partition suit was
filed to circumvent Ex.All and Ex.A/2, executed during the life time of Balai
Chand; that pursuant to the consent decree dated 3.8.1981 in suit no.310/81,
defendant no.2 had executed Ex.A/8 in favour of defendant no.14 on payment
G 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
H executed only after defendant no.2 got the probate on 31. 7 .1981; that the
CRYSTAL DEVELOPERS v. A.L GHOSH [KAPADIA, J.]
43
aforestated developments were known to the heirs of Balai Chand who A
acquiesced to the development of the property between 21.9.1981 (when the
partition suit was filed) and 22.6.1993 (when defendant no.14 was brought
on record). It was submitted that probate dated 31.7.1981 was revoked on
9.7.1987 not on the ground of alleged fraud but for non service of citation
on Parul and Manju, the daughters of Balai Chand and consequently Ex.A/
I, Ex.A/2 and Ex.A/8 were binding on the estate cf 'Jalai Chand. In the B
written statement, defendant no.14 claimed that they were bona fide purchasers
for value wi.thout notice of any defect in obtaining of pi·obate by defendant
no.2.
The written statement filed by defendants no.15 to 20, the vendees C
from defendant no.14, is on the same lines as that of defendant no.14 and
therefore, it is not necessary to repeat the averments contained therein.
On the above pleadings, the trial Court framed 14 issues. However, we
are concerned with issues no.8, 9, 11 and 12 as framed by the trial Court:
(i)
Did defendants no. I and 2 acquire indefeasible title and absolute
right in the suit premises?
(ii) Whether Ex.A/8 executed by defendant no.2 in favour of
defendant no.14 on the basis of probate dated 31.7.1981 was null
D
and void in view of the subsequent revocation of the grant by the E
Probate Court vide order dated 9.7.1987?
(iii) Whether Ex.A/8 executed by defendants no. I and 2 in favour of
defendant no.14 was valid, legal and binding on the plaintiffs?
and
(iv) Whether defendants no.15-20 were bona fide purchasers for value p
without notice?
Answering the above issues; the trial Court held that defendant no.14
was not a bona fide purchaser. In support of the said findings, the trial Court
relied upon the following circumstances. Firstly, that Ex.A/I and Ex.A/2
were executed by defendant no.2 as constituted attorney ofBalai Chand. That G
no reason was given as to why Ex.A/I and Ex.A/2 were got executed by
defendant no.2 when Balai Chand was alive. Secondly, in the said suit no.310/
81, defendant no.2 alone was the sole defendant even though on the date
(21.4. I 931) of filing of the suit for specific performance, probate had not
been granted. Thirdly, that the probate was obtained without service of the
citation on Parul and Manju, the two daughters ofNirmala. Fourthly, according H
44
SUPREME COURT REPORTS [2004) SUPP. 5 S.C.R.
A to the trial Court, the hastiness .with which the said suit no.310/81 was settled
indicated that consent decree was obtained without looking into the probate.
According to the trial Cpurt, defendant n?.14 had knowledge of the grant of
probate even before issuance of its certified copy by the Registry as defendant
no.2 and defendant no.14 had common attorneys. Fifthly, the trial Court
B relied on the affidavit dated 25.9.1997 filed by defendant no.I at the interim
stage stating that Balai Chand had never entered into Ex.All and that the
power of attorney and the will were forged. Sixthly, the trial Court found that
power of attorney was not proved and, therefore, Ex.All and Ex.A/2 were
executed by defendant no.2 to defeat the rights of the plaintiffs. Seventhly,
under clause (2) of Ex.A/I, the purchase price was to be calculated @
C Rs.55,000 per kottah Of land. On that basis, the total consideration receivable
by defendant no.2 was Rs.15 lacs (approximately), whereas he has been paid
Rs.9,54,632. Eighthly, in Ex.A/8 there wa5 no reference to the consent decree
dated 3.8.1981. Ninthly, the adhesive stamp was affixed on Ex.A/8 on 3.8.1981
i.e. one day prior to its execution. Lastly, that defendants no.15 to 20 had
D
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 an~ defendant no.14; that defendant no.14
was not a bona fide purchaser and that defendant no.2 had no authority to
execute Ex.A/8 without the consent and knowledge of other heirs of Balai
Chand. According to the trial Court, the probate was revoked by the High
E Court vide order dated 9.7.1987 for non-citation and forgery. The trial Court·
concluded that defendant no.2 had practised fraud upon the Probate Court in
collusion with defendant no.14 and in the circumstances, Ex.All, Ex.A/2 and
Ex.A/8 were not binding on the other heirs of Balai Chand. Consequently,
the trial Court decreed the partition suit.
F
Being aggrieved, the matter was carried in appeal to the Division Bench
of the High Court. By the impugned judgment, it has been held that defendant
no.2 got himself substituted in the legal proceedings in 1982 without disclosing
the grant of probate and Ex.A/8; that probate was revoked on account ofnoncitation; that defendant no.14 had colluded with defendant no.2 in filing of
G suit no.310/81 in which none of the other heirs were made party defendants;
that no notice of purchase was given by defendant no.14 to the said other
heirs before executing Ex.A/8; that in Ex.A/8, there was no reference to the
consent decree; that in Ex.A/8, the date of grant of probate has been altered
from 29.7.1981to31.7.1981 and Ex.A/8 was executed even before issuance
of the certified copy of the probate by the Registry. In the circumstances, the
H High Court came to the conclusion that defendant no.14 was a privy to the
/
CRYSTAL DEVELOPERS v. A.LGHOSH [KAPADIA, J.)
45
fraudulent acts of defendant no.2 and was, therefore, not a bona fide purchaser. A
In the circumstances, the High Court dismissed the appeals. Hence, these
appeals.
Mr. Shanti Bhushan, learned senior counsel for defendant no. 14
submitted that although Ex.A/I and Ex.A/2 were executed by defendant no.2
as constituted attorney ofBalai Chand, an advance ofRs.2.25 lacs was received B
by Balai Chand from defendant no.14 as evidenced by receipts Ex.A/3 and
Ex.A/4. The receipt of payments by Balai Chand establifhes that Balai Chand
during his life time had intended to sell the suit premises. Hence, Ex.A/I was
binding on Balai Chand as also on his heirs. It was urged that Ex.A/8 was
pursuant to Ex.A/I, Ex.A/2 and the probate, hence, it was binding on the C
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 D
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 E
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
F
was entered into only after thorough search of the title deeds and the
documents, including the probate dated 31. 7.I 981. It was submitted that
defendant no.14 had paid the balance consideration to defendant no.2 who G
was the executor under the will. It was urged that the sale was duly completed
only after defendant no.2 had obtained the probate. It was submitted that the
heirs of Balai Chand were bound by the acts of the executor and the sale was
binding on the estate of the deceased.
Learned counsel for defendant no. I 4 referred to the order passed by the H
~
46
SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.
A civil Court in Misc. Case No.3/80 between Nirmala and Balai Chand by
which on the demise of Balai Chand defendant no.2 was brought on record
as the executor ~nder the above will. According to the learned counsel the
above order shows that Nirmala, the second wife of Balai Chand, was aware
of the above will. She was aware of defendant no.2 being appointed an
executor. Learned counsel therefore submitted that both the Courts below
B 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
C grant on the ground that probate was obtained fraudulently. In the said
application it was further alleged that the will was forged. By order dated
18.9 .1986, the Probate Court dismissed the application. Learned counsel further
pointed out that Parul and Manju did not support Bhabesh in the above
application. It is so recorded by the Probate Court in the order dated 18.9.1986,
dismissing application of Bhabesh for revocation. Yet on 25.3.1987, Parul
D and Manju applied for revocation on the ground of fraud, forgery and noncitation. By an ex-parte order dated 9.