Calcutta High Court
Arun Baran Coomar vs Sanjay Kumar Sharma on 4 August, 2015
Author: Soumen Sen
Bench: Soumen Sen
IN THE HIGH COURT AT CALCUTTA
Testamentary and Intestate Jurisdiction
ORIGINAL SIDE
Present :
The Hon'ble Justice Soumen Sen
G.A. No.1446 of 2003
P.L.A. No.254 of 2002
Arun Baran Coomar
Vs.
Sanjay Kumar Sharma
For the petitioner : Mr. Suman Kumar Dutt, Adv.,
Mr. Arnab Dutt, Adv.
For the respondent : Mr. Dhruba Ghosh, Adv.,
Ms. Pritha Bhaumik, Adv., Mr. Tridib Sarkar, Adv.
Heard on : 30.03.2015, 01.04.2015, 13.07.2015 Judgment on : 4th August, 2015
Soumen Sen, J. :- This is an application for revocation of a grant of probate in common form of Arun Baran Coomar granted by this Court in PLA No.254 of 2002 on 17th September, 2002.
The probate was granted in common form to the last will and testament of the said deceased.
The widow and son of the deceased in or about 18th March, 2002 had entered into an agreement for sale of undivided 50% share of the premises in question for a consideration of Rs.3.75 lakhs out of which Rs.1.25 lakhs was paid by the petitioner Nos.1 and 2 as earnest money. The widow and son of Arun Baran Coomar on the same date had entered into an agreement with the petitioner Nos.3 and 4 to sell the balance undivided portion of the premises in question for a consideration of Rs.1.75 lakhs and had received Rs.1.25 lakhs as consideration earnest money. On 27th March, 2002 the widow and son of the testator cancelled the agreement dated 18th March, 2002 following which on April 1, 2002, an advertisement was published in a newspaper on behalf of the petitioners about the existence of an agreement for sale. In or about 27th March, 2002, the legal heirs of Arun Baran Coomar cancelled the agreements on ground of alleged non-performance. As a consequence thereof two suits were instituted on 5th April, 2002 being Title Suit Nos.513 and 514 before the City Civil Court at Calcutta for seeking specific performance of the agreement both dated 18th March, 2002. In the said proceeding on 6th April, 2002, an order was passed restraining legal heirs of Arun Baran Coomar from entering into an agreement with any third party with respect to the suit property. The mother of the testator Arun Baran Coomar by a communication dated 9th April, 2002 asserted that on the death of his son she along with her daughter-in-law Smt. Ashoka Coomar and grandson Somnath Coomar jointly became entitled to the estate of Arun Baran Coomar having one-third share each in the said property. Thereafter, on 31st July, 2002 consent affidavits purportedly signed by Ashoka Commar and Somnath Coomar were filed in PLA No.252 of 2002. The mother of the testator Smt. Pankajini Coomar also filed a consent affidavit on 26th August, 2002. On the basis of the consent affidavits and the affidavit of one of the attesting witnesses on 17th September, 2002, a probate was granted in common form to the last will and testament of Late Arun Baran Coomar.
The petitioners alleged that in the written objection filed on 10th February, 2003 in T.S. No.513 of 2002 the legal heirs of Arun Baran Coomar contended for the first time that subsequent to the agreement they came to know that Arun Baran Coomar died testate having made his last Will and testament dated 8th January, 2002 bequeathing the said property in favour of one Jaiprakash Singh, a tenant of the said premises and probate was granted on 17th September, 2002. The petitioners, thereafter, made enquiries and after obtaining various documents and pleadings with regard to the said probate proceeding filed this application on 17th April, 2003 for revocation.
Mr. Suman Kr. Dutt, learned Counsel appearing on behalf of the plaintiff submits that the said Will is unnatural. The mother of the deceased as late as in April, 2002 asserted that on the death of her son, she along with her daughter- in-law and grandson jointly became entitled to the estate of the said deceased each having undivided one-third share in the property. The said letter was little sarcastic in the last paragraph as the legal notice was incidentally issued on fool's day giving an impression that she could not be fooled by the said letter. It is submitted that the Will was alleged to have been executed on 8th January, 2002 in which the mother of the deceased was one of the attesting witnesses. If the said document is taken to be correct then the mother of the deceased being one of the attesting witnesses in her communication dated 9th April, 2002 could not have asserted her right as a legal heir of the said deceased claiming undivided one-third share in the property.
The learned Counsel has also referred to Paragraphs 3(f) and (g) of an affidavit filed by the executor Sri Jaiprakash Singh and Paragraph 3(g) of an affidavit filed by Smt. Ashoka Coomar. It is submitted that the said paragraphs would clearly establish that Smt. Pankajini Coomar was asserting her independent right in the property. It is submitted that ordinarily a probate proceeding has to be proved in solemn form. Having regard to the stand taken by the mother of the deceased that she is entitled to an undivided one-third share in the property and if this fact was known to the Court then the probate Court being a court of equity and conscience would have required the said probate to be proved in solemn form and not in common form. Moreover, it is unbelievable that the legal heirs would not be aware of the Will and in ignorance thereof would have executed the sale deed on 18th March, 2002 which is more than two months from the date when the alleged Will was executed. The execution of the agreement for sale by the legal heirs of the deceased coupled with the letter of the mother of the deceased dated April 9, 2002 asserting her interest in the property requires that the probate proceeding is to be heard in a solemn form notwithstanding the fact that subsequently affidavits of consent was filed by all the legal heirs in order to enable the executor to obtain probate. It is submitted that Smt. Pankajini was made to sign affidavit of consent much later in August 26, 2002 in respect of a Will whose existence is extremely doubtful. The learned Counsel has relied upon the decision of the Privy Council in Sarala Sundari Dassya Vs. Dinabandhu Roy Brajaraf Saha (Firm) reported at AIR 1944 Privy Council 11 and Promode Kumar Roy Vs. Sephalika Dutta reported at AIR 1957 Cal 631 and argued that it has been the consistent view that a person who has acquired an interest in the testators' estate though after his death could be entitled in law to apply for revocation of the grant under Section 263 of the Succession Act, 1925 particularly when an allegation is made that the grant was obtained by fraud.
Per contra, Mr. Dhruba Ghosh, learned Counsel appearing on behalf of the executor submits that the communication of Smt. Pankajini cannot be read out of context. Smt. Pankajini was reacting to an advertisement which was issued on behalf of the petitioners. The fact remains that Smt. Pankajini has given her consent to the grant. The paragraphs in the affidavit referred to by the petitioners in support of their claim that the parties knew that there was no will is a narration of events that had taken place which would show that initially Asoka and Somnath were unaware of the Will and it was only after they became aware of the said Will and satisfied that a Will was executed by Arun Baran Coomar had agreed to give their consent to the grant and consent affidavits were filed by them. The testator was not keeping well and had a premonition of his death. In order to avoid future dispute he distributed most of his properties to his legal heirs who would have succeeded to his estate after his death and, therefore, only a small amount of movable properties remained undistributed at the time of his death which figured in the affidavit of assets. Mr. Ghosh questions the locus of the applicant to apply for revocation of the grant. Mr. Ghosh submits that an agreement holder has no right to apply for the revocation of the grant since the agreement for sale does not create any interest in the property. Mr. Ghosh has relied upon a Division Bench Judgment of our Court in Kartick Chandra Shaw vs. Sm. Ranjita Pal and Ors. reported at AIR 1977 Cal 496 and submits that in a similar matter, the Hon'ble Division Bench of this Court held that a party to the agreement for purchase has no right or interest in the immovable property left by the testator and as such has no locus standi to oppose the grant of probate under Section 283 of the Indian Succession Act, 1925.
In my view, the contention raised by Mr. Ghosh deserves consideration. The petitioners are mere agreement holders. The Will was executed on 8th January, 2002. The testator died on 13th February, 2002. The will shows that Smt. Pankajini was one of the attesting witnesses. The widow of the deceased during her lifetime did not contest the said probate proceeding nor did she dispute her signature in the said document. I have compared the signatures of Smt. Pankajini appearing in the Will with the other two signatures and it appears that all the said three documents were signed by Pankajini. It is true that the mother of the deceased in her communication dated 9th April, 2002 asserted that she is having undivided one-third share in the property along with her daughter- in-law and grandson. That assertion by itself would not be sufficient to dislodge that the grant was obtained fraudulently. The said contention might have been raised as a defence to avoid obligation under the agreement. The testator is the owner of the said property. The testator is the sole authority to decide disposal of his own property. The testator has given some reasons for bequeathing the said property in favour of the executor beneficiary before the probate was granted. The executor has filed affidavits of consent of the legal heirs and of the attesting witnesses. Moreover the agreements relied upon by the applicants are unregistered documents.
In Sunil Gupta Vs. Kiran Girhotra reported at 2007 (8) SCC 506 in deciding the issue as to whether a transferee pendelite is a necessary party in a probate proceeding it was held that citations are necessary to be made to only those persons who, inter alia, claim through or under the Will or deny or dispute the execution thereof.
A person, who has certainly acquired an interest in the testator's estate, though after his death, by reason of a mortgage transfer by the testator's son and is undoubtedly also a creditor of the testator's said son whom the will purports to disinherit, has held to have locus standi in Promode Kumar (supra) to apply for the revocation of the grant, particularly when his allegation is that the grant was obtained in fraud of the creditors.
In Sarala Sundari (supra) the question arises whether a creditor of an heir who says that he is being or is likely to be defeated in his rights against the heir by reason of property which otherwise appear to be in possession of the heir being withdrawn by a Will is allowed to move to revoke the probate. The circumstances were that Haralal Saha was a man of some age and had been very successful in his business, which was principally that of a moneylender. He owned immovable property in several districts in Bengal and in one district outside. He died in 1927 and, upon his death, there can be no doubt, that his three sons who survived him took possession of the properties. In some instances they had joined in a suit with their mother and were substituted for their father in a partition suit. They got a certificate of succession to enable them to sue on certain debts which were due, no doubt, on the money lending business. They collected the rents of the immovable properties and they proceeded, both they and the widow, precisely as they would have proceeded if there had been an intestacy.
It would appear that the sons did not pursue the moneylender's business which, at any rate, in five or six years' time had, as the learned Judges found, disappeared; but they had in the name of a company conducted a business in electric lighting equipment, and they had incurred a debt to the present respondents, also for the purpose of their business of 5000 rupees. In November 1933, the respondents had obtained a decree against them for 5000 odd rupees. Their Lordships have no doubt that at that time they were in financial difficulties, as is shown by the fact that in the next year they were adjudicated insolvents. In February 1933, more than six years after the death of the alleged testator, the present appellant applied for probate of a will which she produced then for the first time. It is not surprising that that attracted a good deal of suspicion. The respondents came to the conclusion that the will was a forged document and in August 1935, they applied for revocation of the probate.
Mr. Dutt relying upon the said decision submitted that if a person is complaining that he has, in fact, been defrauded, he is one of the persons who is injured by the fraud alleged and that person is entitled to have his redress by applying to revoke the probate and thereby cause the fraud to become inoperative. It is submitted that the said Will is forged and brought into existence with a view to defeat the right of the petitioner. One of the grounds for revoking the probate was obtained fraudulently by making a false suggestion, which obviously covers the case of putting forward a forged will.
Under Section 263 of the Succession Act, the grant of probate may be revoked for just cause. The explanation to the said section adumbrates the circumstances which would constitute just cause. In Illustration (ii) it is stated that if the grant was made without citing parties who ought to have been cited it shall be considered to be a just cause for revocation of the Will. Similarly, under Section 283 of the Indian Succession Act a District Judge before granting probate or letters of administration if he thinks proper would issue citations calling upon all persons claiming to have any interest in the estate of the deceased to come and see the proceedings before the grant of probate. The question arises whether the petitioners would be required to be cited before the grant.
In the light of the aforesaid provisions now let me examine whether the applicant who is a third party has established his caveatable interest and whether the applicants have any locus standi to file the said application. The applicant is neither a legal heir nor would they get an interest in the property but for the will. The aforesaid section makes it clear and it is also well-established principle that only when the person who got some interest in the property but for the will for any of the reasons mentioned in Section 263 of the Act he can file an application for revocation of probate. However, such grant can be revoked or annulled for a just cause. The case of the applicants claiming right through an agreement for sale will not come under the purview of just cause. A contract for sale of an immovable property does not by itself create any interest in or charge on such property. This principle was recognized and reiterated in Rambaran Prasad Vs. Ram Mohit Hazra reported at AIR 1967 SC 744 where Their Lordships have held:-
"11. But there has been a change in the legal position in India since the passing of the Transfer of Property Act. Section 54 of the Act states that a contract for sale of immovable property "does not, of itself, create any interest in or charge on such property."
The said principle was followed in Kartick Chandra Shaw (supra) and also by a Division Bench judgment of Ramani U. Krishnan Vs. Dr. Ammini Praveen Joshua reported at AIR 2005 Madras 423. In Kartick Chandra Shaw (supra) in deciding the right of an agreement holder to be added in the probate proceeding it was held:-
"5. In our opinion, the agreement for sale does not create an interest in the property which is the subject-matter of the sale. Under Section 54 of the T. P. Act an agreement for sale of immoveable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not create any interest in or charge on such property or in other words the contract for sale does not create either an interest in or a charge on the property. It at best is a contract for sale which is only an equitable right of a purchaser and it does not create any interest in the land which is the subject-matter of the contract In the case (India Elec. Works v. Mantosh) it has been held by the Division Bench of this Court that even after a decree for specific performance has been passed, the purchaser has no interest in the property. From Section 54 of the T. P. Act it is clear to us that the agreement for sale does not create of itself any interest in or charge on the property which was contracted to toe sold between the parties.
8. In our opinion, therefore, a party to the agreement for purchase has no right or interest in the immovable property left by the testator and as such, has no locus standi to oppose the application for grant of probate under Section 283 of the Indian Succession Act. The view we take, is supported by the decisions of the Division Bench of this Court (Southern Bank v. K. Ganeriwalla) in which it has been held that a creditor of the deceased testator has no locus standi to oppose the grant of a probate. The Division Bench of this Court in considering the principle of Privy Council's decision came to the finding that the creditor of an heir of the deceased is not entitled to citation and on that ground the probate cannot be revoked. At p. 455 (of Cal WN): (at p. 384 of AIR Cal) their Lordships held as follows:-
"All that I am concerned with at the present moment is that it was held in this case that a creditor of a testator's heir had no interest in his estate."
10. Mr. Panda contended that the bare possibility of an interest is necessary to establish the locus standi of the opposite party No. 8 and there cannot be any doubt that the opposite party No. 8 has a possibility on the basis of the agreement of sale and therefore he must be said to be a person claiming to have any interest in the estate of the deceased. In the case reported in 36 Cal WN 635 : (AIR 1932 Cal 734) (Nabin Chandra v. Nibaran Chandra) it has been held that "possibility of an interest" does not apply to the possibility of a party filling a character which would give him an interest, but the possibility of his having an interest in the result of setting aside, the Will. It was held therein that in interpreting Section 283 of the Indian Succession Act, a person must have a real interest in the estate and a purchaser from an heir after the death of the testator has a locus standi and to have it, it is not necessary for the objector to show that he had an interest in the estate at the time of the testator's death. The main point for consideration is whether the person applying to be added in order to oppose the grant of probate must have a real interest in the estate of a deceased. A person entering into an agreement for sale has no interest in the immoveable property left by the deceased testator. His claim at best is a claim for filing a suit. Moreover the case reported in 36 Cal WN 635 : (AIR 1932 Cal 734) (Nabin Chandra v. Nibaran Chandra) has specifically repelled the argument that the "possibility of an interest does not apply to the possibility of a party filling a character which would give him an interest".
Since the applicants have no caveatable interest inasmuch as the sale agreement does not create any interest the applicants are not entitled to any notice and the probate granted in favour of the executor cannot be revoked at the instance of the said applicants.
The application, accordingly, stands dismissed. However, there shall be no order as to costs.
Urgent xerox certified copy of this judgment, if applied for, be given to the parties on usual undertaking.
(Soumen Sen, J.)