Calcutta High Court
Manju Puri vs Rajiv Singh Hanspal & Ors on 13 April, 2017
Author: Sanjib Banerjee
Bench: Sanjib Banerjee, Siddhartha Chattopadhyay
OD-10
APO 94 of 2016
With
PLA 90 of 1982
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
MANJU PURI
Versus
RAJIV SINGH HANSPAL & ORS
Appearance:
Mr S. K. Dutt, Adv.
Mr A. Mukherjee, Adv.
... for the appellant
Mr Utpal Bose, Sr Adv.
Mr Kuldip Mullick, Adv.
... for the respondent Nos. 1, 2, and 3
Mr Jishnu Saha, Sr Adv. Mr Zeeshan Haque, Adv. Mr Swati Bhattacharyya, Adv.
... for the respondent No. 4BEFORE:
The Hon'ble JUSTICE SANJIB BANERJEE
-AND-
The Hon'ble JUSTICE SIDDHARTHA CHATTOPADHYAY Date: April 13, 2017.
The Court:- The petitioner challenges an order of August 24, 2015 by which the petitioner's application for revocation of a probate granted on June 4, 1982 in respect of a Will of a person who died in 1962 was dismissed.
Testator Surjan Singh Randhawa had two daughters, Gian and Beena. It appears from the Will that he bequeathed his Belvedere Road property to elder daughter Gian. The widow of the testator and his two daughters had already died prior to the application for revocation being made. 2
The story that was spun to seek revocation of a grant made in 1982 was that it was only in the year 2011 or so, shortly prior to the application being made, that the appellant herein came upon a deed of conveyance by which Gian's son, the first respondent herein, had conveyed the Belvedere Road property to a third party. Though the purchaser was also impleaded in the petition for revocation, it was completely unnecessary. It is elementary that a Probate Court does not decide on title.
According to the appellant herein, the Belvedere Road property was purchased by the appellant's maternal grandfather in the name of his wife. A deed of gift was executed in favour of the elder daughter by the wife of the testator; but upon the relevant persons subsequently realising that a benamdar could not pass any title, the deed of gift was revoked and cancelled upon the execution of a deed of release. The appellant says that the appellant's mother, Beena, filed a partition suit in the year 1984 and the defence taken by Beena's elder sister Gian in such partition suit pertaining to the Belvedere Road property was that Gian had obtained the property by way of a deed of gift executed in 1964 by her mother. The appellant claims that if the probate was obtained in the year 1982 and Gian was the beneficiary thereunder in respect of the Belvedere Road property, there was no occasion for Gian to take a dishonest stand in the partition suit in 1984 when she claimed title to the Belvedere Road property not under the Will but under the deed of gift executed in 1964 by her mother.
According to the appellant, the partition suit was not pursued for some time and it was dismissed for default in 1996 and attempted to be revived in 3 2006 but unsuccessfully. The appellant submits that Beena died in 2008 and it was only after Beena's death when the heirs of Beena took interest in the matter that they came upon the deed of conveyance of 2010 executed by the first respondent herein in favour of the transferee. The appellant and the proforma respondents are the heirs of Beena.
The trial court disbelieved the case made out by the appellant. The trial court noticed that Beena had not taken any steps in the partition suit for a period of more than two decades after its institution and Beena had not contested Gian's enjoyment of the Belvedere Road property during her lifetime. The trial court found that the appellant had applied for revocation of the grant after Beena had died and by citing the deed of conveyance as an excuse. Since the probate was granted upon Beena's consent being obtained, the trial court did not think that it was necessary for Beena's signature in the document of consent to be examined long after her death.
The more surprising aspect of the matter is as to how the appellant suddenly came upon the deed of conveyance of 2010 to realise that a property that ought to have passed on to him and his siblings through his mother had been usurped by some other. There does not appear to be any explanation in the petition for revocation in such regard. More importantly, it was not as if Gian was the propounder of Surjan Singh Randhawa's Will of 1961. The petition for grant of probate was made by a brother of the testator who was named as the executor in the Will. Though it may be an anomaly that the grant of the probate would be obtained in 1982 and Gian would assert her right qua the Belvedere Road property on the strength of a deed of gift which was subsequently annulled, there was no occasion to speculate on such matters 4 once it was noticed that it was not Gian who applied for or obtained the probate.
There was a delay of about 20 years in applying for the grant. The delay in applying for revocation was nearly 30 years. The trial court appears to have considered the matter in its proper perspective and the element of discretion exercised in rejecting the petition for revocation does not appear to be perverse.
For the reasons aforesaid, APO No.94 of 2016 and the connected applications therein, if any, are dismissed.
There will be no order as to costs.
(SANJIB BANERJEE, J.) (SIDDHARTHA CHATTOPADHYAY, J.) G.S. Das/kc