Calcutta High Court
Sri Tarun Aich & Ors vs Unknown on 25 June, 2020
Author: Ashis Kumar Chakraborty
Bench: Ashis Kumar Chakraborty
IN THE HIGH COURT AT CALCUTTA
TESTAMENTARY AND INTESTATE JURISDICTION
ORIGINAL SIDE
GA 3060 OF 2017
PLA 143 OF 2016
In the Goods of:
KIRAN WADAN BHAGAT ... Deceased
And
In the matter of:
SRI TARUN AICH & ORS..... Applicants
Mr. Jayanta Kumar Mitra, Sr. Advocate,
For the executor : Mr. B. K. Samanta, Advocate,
Mr. P. K. Chaki, Advocate
.
For the applicant : Mr. S.N. Mitra, Sr. Adv,
Mr. Debjit Mukherjee, Adv.
Mr. Sanjoy Mukherjee, Adv.
Mr. Tanmoy Mukherjee, Adv,
Mr. Lal Ratan Mondal, Adv.
Ms. Susmita Chatterjee, Adv.
Mr. S. Bhattacharya, Adv,
Ms. D. Ganguly, Adv,
Mr. Deepak Kr. Jain, Adv.
Judgement on : 25.06.2020
Ashis Kumar Chakraborty, J.
The applicants have filed this application under Section 263 of the Indian Succession Act, 1925, (in short, the Act of 1925) praying for revocation of the probate granted by this Court on July 14, 2017 in respect of the Will dated November 20, 2002 by late Kiran Wadan Bhagat 2 (hereinafter referred to as "the said Will") in PLA No.143 of 2016. The ground urged in this application is that the alleged executor obtained the probate of the said Will without serving prior notice or citation upon the applicants who are the interested parties in the estate of said Kiran Wadan Bhagat, since deceased.
According to the applicants one Lajpat Rai Bhagat, since deceased was the absolute owner and in possession of 7 bighas of land with the building and structures thereon appertaining to Municipal Holding No.368, under Ward No.1 of Panihati Municipality recorded in C.S. Dag Nos. 3387, 3388, 3389 and 3391 of C.S. Khatian No.59 of Mouza Sukhchar, J.L. No.9 within P.S.-Khardah in the District of North 24- Parganas (hereinafter referred to as "the said property"). On January 19, 1974 the said Lajpat Rai Bhagat died intestate leaving behind his wife Jagjit Bhagat, three sons namely, Kiran Wadan Bhagat, Ravi Wadan Bhagat, Laj Wadan Bhagat (hereinafter referred to as Kiran Wadan, Ravi Wadan and Laj Wadan, respectively) and only daughter Hemi Kapoor. Subsequently, Jagjit Bhagat also died intestate, leaving behind her aforesaid three sons and only daughter. Hence, each one of the three sons and the only daughter of the said Lajpat Rai Bhagat and Jagjit Bhagat became one-fourth owner in respect of the said property. On February 6, 2005 Kiran Wadan, the eldest son of Lajpat Rai Bhagat and Jagjit Bhagat, died leaving behind his only son Ajay Bhagat and four daughters, namely 3 Anita Singh, Sunita Singh, Kabita Singh and Debika Dhirani as his heirs and legal representatives. The wife of Kiran Wadan, namely Shila Bhagat pre-deceased her husband. By a registered power of attorney dated June 20, 2005 the said Anita Singh, Sunita Singh, Kabita Singh and Debika Dhirani (hereinafter collectively referred to as "the daughters of the deceased testator") appointed their brother Ajay Wadan (hereinafter referred to as "Ajay Wadan") as their lawful and constituted attorney with all power and authority to transfer their respective share in the said property. By a registered deed of conveyance dated July 5, 2005 the said Ravi Wadan himself and Ajay Wadan, for himself and as the constituted attorney of his four above named sisters transferred one half share in the said property to the applicants, whose names have since been duly recorded in the L.R. records of rights in respect of the said property, as well as in Municipal register. The applicants also claim to be in possession of the said property. By a registered deed of conveyance dated December 5, 2012 even Laj Wadan, transferred his undivided one-fourth share in the said property in favour of three companies controlled by the applicants namely Shreebhumi Realcon Private Limited, High View Towers Private Limited, Ananddhara Properties Private Limited, Execelline Realty Private Limited and Sun Heaven Builders Private Limited, respectively. By a further registered deed of conveyance dated March 15, 2013 the Smt. Hemi Kapoor also transferred her undivided one-fourth 4 share in the said property to three companies, of which the applicants claim to be the directors. It is alleged that on August 01, 2017 the applicant no.2 received an envelope from one Narayan Chandra Sarkar, containing a copy of the Original Side Cause List of this Court published for July 14, 2017 wherefrom he found the name of Kiran Wadan appearing as Item No.8 under the non-contentious business (for final disposal). The applicant no.2 having failed to understand what the matter was, immediately contacted the other applicants and all of them instructed an advocate to make enquiry and take proper steps in the matter. The applicants have named the said advocate who upon necessary enquiry informed them that one Tamal Sarkar as executor of a purported Will alleged to have been executed by late Kiran Wadan on November 20, 2002, had applied for probate of the said Will by this Court and had obtained probate of the said Will. Based on the advice given by the said advocates the applicants have filed the present application seeking relief as already mentioned above.
The applicants have asserted that by the said deed of conveyance dated July 5, 2005 the brother of late Kiran Wadan, that is, late Ravi Wadan and the sons and daughters of late Kiran Wadan sold and transferred their one-half share in the said property. It has been claimed that the property mentioned in the said deed of conveyance dated July 5, 2005 and that mentioned in the said alleged Will of the Kiran Wadan, 5 since deceased, which has been probated by this Court are same. Shri Narayan Chandra Sarkar, the father of the executor of the said alleged Will of Kiran Wadan, since deceased has filed a suit, being Title Suit No.171 of 2016, before the learned Civil Judge (Junior Division), 4 th Court at Sealdah, against the present applicants claiming, inter alia, a declaration that the deed of conveyance dated July 5, 2005 executed by Ravi Wadan and the daughters of Kiran Wadan in respect of the said property is null and void and not binding upon him. By virtue of the probate granted by the learned District Delegate at Barrackpore, District North 24-Parganas of a Will of Ravi Wadan he is the owner of the said suit property and that the deed of conveyance dated July 05, 2005 execute by Ravi Wadan, since deceased, and the proforma defendant nos.4 to 7 (the daughters of Kiran Wadan and the wife of Ajay Wadan ) is null and void and not binding upon him. The applicants have disclosed an undated letter issued by the advocate of Tamal Sarkar addressed to the applicant No.1 alleging that the deed of conveyance executed by the said Ravi Wadan and the heirs and legal representatives of Kiran Wadan on July 5, 2005 is a false, fabricated and manufactured deed. According to the applicants, inasmuch as the said deed of conveyance dated July 5, 2005 the Ravi Wadan and the heirs and heiresses of Kiran Wadan had sold and transferred their undivided one-half share in the said property to them, the said Will dated November 20, 2002 could not have been made 6 by the said Kiran Wadan , since deceased. It is claimed that before filing of the probate application, PLA No.143 of 2016 the executor of the said alleged Will was fully aware that the applicants are deeply interested in the estate of the deceased Kiran Wadan, and as such, they were entitled to receive of the said probate application. Had this Court been properly appraised of the above facts granted probate of the said alleged Will of Kiran Wadan would not have been granted behind back of the applicants and without issuance of citation to each of them. The executor of the said Will is alleged to have fraudulently obtained the grant of probate of the said Will intending to unlawfully deprive the applicants of their exclusive ownership of the said property, forming part of the estate of the said deceased, Kiran Wadan. The applicants have asserted that in the present case there exists just and sufficient cause that warrants revocation of the grant of probate of the said alleged Will of Kiran Wadan.
The executor has contested the application and he has filed the affidavit-in-opposition. The copies of the present application were also served upon the four daughters of Kiran Wadan, since deceased and they have also filed their respective affidavit.
In his affidavit, the executor claimed that in terms of an order dated November 29, 2016 passed in the said probate application general citation was issued in the newspapers and special citation were despatched by Registered Post with AD to the daughters of the deceased 7 testator, since deceased testator and Ajay Wadan. The executor has also disclosed the newspaper publications dated January 1, 2017 in the Sunday Edition of "The Statesman" and also in the Sunday Edition of "Vishwamitra". A copy of the general citation was affixed on the notice board of this Court on December 12, 2016 and at the office of the Collector at Calcutta on December 15, 2016. It is further alleged that prior to such publication, the Photostat copy of the special citation was issued and sent to the heirs in intestacy of Kiran Wadan, being Anita, Sunita, Kabita and Debika and Ajay Wadan by the Sheriff's Office to their address being 137, Sector 16, P.S.- Sanjay Colony, Haryana-121002. However, the postal packets containing such photostat copies of the special citation were returned undelivered with the endorsement "incomplete address". Thereafter, by order dated March 10, 2017 a learned Single Judge of this court allowed the prayer of the executor for further issuance of the special citation upon the heirs in intestacy of Kiran Wadan Bhagat. The executor was further directed to publish the general citation, once in English daily and once, in a Hindi daily having wide circulation in and around Haryana. On May 4, 2017 an employee attached to the office of the Sheriff's at Calcutta affixed a copy of the special citation at a conspicuous place on the outer wall of premises No. 137, Sector-16, Sanjay Colony, Faridabad, Haryana. Even, in terms of the order dated March 10, 2017 general citation was also published in 8 English Newspaper "Times of India", New Delhi Edition on 5 th May and on 17th May, 2017 in "Dainik Bhaskar" Newspaper. The heirs and legal representatives of the testator in their respective affidavit disputed the genuiness of the said Will of Kiran Wadan, since deceased.
Mr. S. N. Mitra, learned Senior Counsel appearing in support of the application contended that in the present case when by the said deed of conveyance dated July 4, 2005 the said Ravi Wadan for himself and Ajay Wadan for himself and his four sisters, namely Anita, Sunita, Kabita and Debika transferred their undivided one-half share in the said property in favour of the applicants they have a caveatable interest in the estate of the deceased testator. Consequently, the probate of the said testator obtained by the executor without issuing citation to the applicants is liable to be revoked under Section 263 of the Act of 1925. In this regard, Mr. Mitra cited the Division Bench decisions of the Madras High Court in the cases of S. Bhaskaran & Anr. -vs- R. Loganathan, reported in (2007) 6 Mad L.J. 290 and E. Sankaran -vs- Krishnaveni, reported in (2011) Mad 269. He further cited the decisions of the Supreme Court in the cases of G. Gopal -vs- C. Bhaskaran & Ors., reported in (2008) 10 SCC 489 and Krishna Kumar Birla -vs- Rajendra Singh Lodha & Ors., reported in (2008) 4 SCC 300. Mr. Mitra lastly cited the single Bench decision of this court in the case of Asim Kumar Chattaraj and Anr. -vs- Sankar Prasad Chattaraj and Ors., reported in (2011) 5 CHN 52. 9
On the other hand, Mr. Jayanta Kumar Mitra, learned Senior Counsel appearing for the executor contended that the daughters of the deceased testator, in their affidavits have not alleged that the address on which the citations of the probate proceeding was served was wrong address or that they were not aware of the pendency probate proceeding, PLA No.143 of 2016 before this Court. It was further submitted that despite being aware of grant of probate of the said Will, the heirs of the deceased testator have not filed any application for revocation of grant of probate of the said Will by this Court in PLA No.143 of 2016.
It was argued for the executor that only the application filed by the applicant, which does not contain a copy of the said Will, was served upon the heirs and legal representatives of the deceased testator. However, in their respective affidavit Anita, Sunita, Kabita and Debika have alleged that their father, Kiran Wadan (since deceased) never came to Barrackpore, West Bengal in November, 2002 when the alleged, manufactured, forged Will was prepared. It was contended that if the heirs of Kiran Wadan, since deceased had not received the citation issued in PLA No.143 of 2016 and had no knowledge of the said probate proceeding, they could not have alleged that the said Will was executed at Barrackpore or that the said Will was forged or manufactured. It was strenuously contended by the executor that the applicants in this application are neither heirs of the testator Kiran Wadan nor do they fall 10 in the line of succession of the testator and, as such they cannot have any right in estate of deceased testator. The applicants' claim for a caveatable interest is based on the purported deed of conveyance dated July 5, 2005 executed by Shri Ajay Wadan for himself and his sisters does not entail any caveatable interest in the estate of the deceased testator. In support of such contention, the learned counsel for the executor relied on the decision of the Supreme Court in the case of Krishna Kumar Birla (supra) cited by the applicants. According to him, in the said case the Supreme Court laid down the law that to sustain a caveat, a caveatable interest must be shown and any person questioning the existence of title in respect of the estate or capacity of the testator to dispose of the property by Will on ground outside the law of succession should be a stranger to the probate proceeding inasmuch as none of such rights can effectively be adjudicated in a probate proceeding. Citing the decision of the Supreme Court in the case of Jagjit Singh & Ors. -vs- Pamela Manmohan Singh, reported in (2010) 5 SCC 157 it was submitted that in the said case Supreme Court found that there is conflict of views in the decisions of Krishna Kumar Birla (supra) and in the case of G. Gopal (supra) both cited by the applicants and, as such the matter was referred to a Larger Bench. It was further submitted that in the case of Saroj Agarwalla -vs- Yasheel Jain, reported in (2017) 14 SCC 285 the Supreme Court once again held that in order to ascertain whether a 11 person has any caveatable interest, the test which may be applied is whether the grant of probate prejudices the caveator's right because it defeats some other line of succession in terms whereof the caveator asserts his/her right. Learned counsel for the executor lastly cited the decision of the Delhi High Court in the case of Raghbir Singh -vs- State (NCT of Delhi) & Ors., reported in (2019) SCC OnLine Del 10401 holding that the caveatable interest would thus mean that the caveator can claim a right, title or interest in the property under any Personal Law of succession as applicable to the parties, in the event of intestacy of the testator. It was vehemently argued that in the present case, the applicants not claiming their right, title and interest in the property under any personal law of succession, but as purported purchasers of a portion of the said property on the basis of a document, the validity of which is the subject matter of challenge in a suit pending before the competent Court, cannot and do not create any caveatable interest in the estate of the said deceased testator. Accordingly, the application filed by the applicants for revocation of probate of the said Will of the testator is not maintainable. The next argument advanced by the learned senior counsel for the executor was that the said deed of conveyance dated July 5, 2005 whereby the said Ravi Wadan Bhagat and the son and daughters of the deceased testator purportedly transferred their one-half share of the said property measuring about three Bighas, five Cottahs and seven Chittaks 12 of land at a throw away price of Rs.4 lakh 60 thousand, that too paid in cash is a sham document. The gross under-valuation of the said property in the said deed of conveyance dated July 5, 2005 is evident from the fact that the market value of the said property was assessed at Rs.1,72,19,237/- on which Rs.13,77,549 was payable as stamp-duty and from the document disclosed in the application it is evident that the deficit stamp-duty of Rs.13,40,700 was paid on June 26, 2012. According to the executor the said transaction was not a bona fide transaction and the applicants as transferee with notice of the said Will of the deceased testator. It was further submitted that when Ravi Wadan had died on June 4, 2004 there cannot be any doubt that the said deed of conveyance dated July 5, 2005 purportedly executed by him is a sham document. According to the executor, in any event, when the said deed of conveyance dated July 5, 2005 allegedly executed by Ravi Wadan and the heirs of the deceased testator is already the subject matter of challenge in a validly constituted suit, being Title Suit No.171 of 2016, pending before the learned 4th Civil Judge (Senior Division) at Sealdah, any decision holding that the applicants have got a right on the basis of a deed of conveyance would amount to pre-judging the entire issue involved in the said suit.
In his reply, learned counsel for the applicants submitted that although in the case of Jagjit Singh (supra) the Supreme Court held that 13 in the decisions of the cases in Krishna Kumar Birla (supra) and G. Gopal (Supra) two Co-ordinate Benches of the same Court expressed conflicting views on the interpretation of the expression "caveatable interest" and, as such referred the matter to a Larger Bench, but subsequently, the Special Leave Petition in the case of Jagjit Singh (supra) was withdrawn. In this connection, the applicant produced a copy of an order dated March 27, 2015 passed by the Hon'ble Supreme Court in I.A. No.6, 2014 in Civil Appeal No.8031 of 2001. It was further submitted that from a careful reading of the decisions of the Supreme Court in the cases of Krishna Kumar Birla (supra) and G. Gopal (supra) it is evident that no conflicting views were expressed in the said decisions with regard to the interpretation of the expression "caveatable interest". It was pointed out that in paragraph 5 of the decision in the case of G. Gopal (supra) the Division Bench of the Supreme Court expressly held that it is settled law that a person who has even a slight interest in the estate of the testator is entitled to file caveat and contest the grant of probate of the Will of the testator. Learned counsel for the applicants further referred to Paragraphs 84, 85, 86, 92 and 103 of the decision of the Supreme Court in the case of Krishna Kumar Birla (supra) and submitted that in the said decision of the Supreme Court held that what would be the caveatable interest would depend upon the fact situation in each case and no hard and fast rules as such can be laid down to interpret the expression 14 "caveatable interest". It was emphasised that in the present case, when the applicants have claimed title with regard to one-fourth share in the said property on the strength of the said deed of conveyance dated July 05, 2005 executed by the heirs and legal representatives of deceased testator, Kiran Wadan there cannot be any doubt that the applicants have caveatable interests in the estate of the said deceased testator. According to the applicants, when the said deed of conveyance dated July 05, 2005 executed by the heirs and legal representatives of the deceased testator and Ravi Wadan has not yet been declared to be void by the competent court, there is no merit in the contention raised by the executor with regard to the alleged insufficiency of the power of attorney granted by the daughters of the deceased testator in favour of their brother Ajay Wadan or that the consideration paid by the applicants for purchasing one-half share in the said property was low.
On the facts of this case as discussed above, it is evident that the applicants have based their in this application for revocation of the grant of the probate of the said Will of the deceased testator only on the basis the said deed of conveyance dated July 05, 2005 executed by the heirs and legal representatives of the deceased testator, Kiran Wadan and Ravi Wadan, since deceased. By the said deed of conveyance dated July 05, 2005 executed by the heirs and legal representatives of the deceased testator and Ravi Wadan, since deceased the applicants claim to have 15 purchased their undivided one-half share in the said property. The heirs and legal representatives of the deceased testator have accepted the said registered deed of conveyance to be valid and binding upon them. The executor obtained the probate of the said Will of the deceased testator from this Court after being aware of the said registered deed of conveyance being executed by the heirs and legal representatives of the deceased testator and Ravi Wadan in favour of the applicants. This is evident from filing of the Title Suit No.171 of 2016 by the executor's father. The executor is the proforma defendant in the said suit filed by his father. However, the executor has not filed any proceeding before the competent Civil Court to challenge the validity of the said deed of conveyance dated July 05, 2005. It is the executor's father, Naryan Chandra Sarkar who has challenged the validity of the said deed of conveyance dated July 05, 2005 executed by Ravi Wadan, since deceased and the legal representatives of the deceased testator, Kiran Wadan. The father of the executor of the said Will of the deceased testator also claims to be beneficiary of an alleged Will executed by Ravi Wadan, since deceased. From a perusal of the plaint filed in Title Suit No.171 of 2016, a copy whereof has been disclosed by the applicants in the application it is evident that in the said plaint there is no whisper of the said Will of the deceased testator executed on November 20, 2002. However, the executor 16 did not cause citation of the probate proceeding PLA No. 143 of 2016 being served on any of the applicants.
Until the said deed of conveyance dated July 05, 2005 is set aside by the competent Civil Court, the applicants remain to be the owner of one-half share in the said property. Thus, in the present case, as pointed out by the applicants and in view of the decisions of the Supreme Court in the Case of Krishna Kumar Birla (supra) and in the case of G. Gopal (supra) as explained by the applicants, and the single Bench decision of this court in the case of Ashim Kumar Chatterjee (Supra) the applicants have caveatable interest in the estate of Kiran Wadan Bhagat, since deceased comprising one-fourth share in the said property. The view expressed by a learned Single Judge of the Delhi High Court in the case of Raghbir Singh (supra) cannot be held to be the good law. The decision of the Supreme Court in the case of Saroj Agarwal (supra) has no application in the present case.
For all the reasons as aforesaid, the present application succeeds and probate granted by this Court on July 14, 2017 of the said Will dated November 20, 2002 of the deceased testator, Kiran Wadan stands revoked on the grounds of non-issuance of citation on the applicants.
Urgent certified website copies of this judgment, if applied for, be made available to the parties subject to compliance with requisite formalities.
17
Later The prayer is made on behalf of the executor for stay of operation of the present decision, the same is considered and rejected.
( Ashis Kumar Chakraborty, J. )