Calcutta High Court
Gocool Chandra Saha vs Unknown on 17 November, 2016
Author: Debangsu Basak
Bench: Debangsu Basak
ORDER SHEET
GA No. 2686 of 2016
PLA No. 148 of 1989
IN THE HIGH COURT AT CALCUTTA
Testamentary and Intestate Jurisdiction
IN THE GOODS OF :
GOCOOL CHANDRA SAHA, DECEASED
BEFORE:
The Hon'ble JUSTICE DEBANGSU BASAK
Date : 17th November, 2016.
Mr. Aniruddha Mitra,
Mr. Abhijit Nayak, Advs.
...appears
Ms. Radhika Misra, Adv.
...for the purchaser
Mr. Anubhav Sinha,
Mr. Sankar Kumar Samanta, Advs.
...for the respondents
The Court : The petitioner seeks a direction on the beneficiary as well as on the purchaser of an immovable property for furnishing security for the sum of Rs. 60,51,350/-.
Learned advocate for the applicant submits that, the property was sold subsequent to the grant of probate but during the pendency of the application for revocation of such grant. The applicant is one of the caveators contesting the probate proceedings. During the pendency of the application for the revocation of grant, by an order of injunction dated December 1, 2010 the purchaser was restrained from 2 creating any third party rights or otherwise dealing with or alienating or encumbering the property in question without previous leave of the Court. The injunction order dated December 1, 2010 was ultimately confirmed by the order dated June 23, 2016.
Learned advocate for the applicant submits that, the probate granted in favour of the beneficiary was ultimately revoked by the order dated May 11, 2016. An appeal carried from such order was dismissed. Therefore the probate having been revoked, it would be appropriate to protect the purchaser or the beneficiary to deposit the consideration price of the immovable property. He submits that, the same is essential for the purpose of protection and preservation of the estate available to the deceased.
Learned advocate for the beneficiary submits that, the applicant had made a similar prayer in the earlier application which stood disposed of by the order dated June 23, 2016. The applicant therefore, is not entitled to renew such prayer. He submits that, the sale had happened in 2010. The beneficiary presently is a resident of Canada. The sale proceeds were repatriated to Canada after requisite permission being obtained from the Reserve Bank of India. The beneficiary has also paid capital gains as applicable in respect of the transaction. Therefore it would 3 be inequitable if the beneficiary or the purchaser is directed to put in the sale consideration of the immovable property as security.
I have considered the rival contentions of the parties and the materials made available on record.
The probate granted in respect of the estate of the deceased was revoked by the order dated May 11, 2016. The appeal carried therefrom has since been dismissed.
Some of the caveators in the probate proceedings had filed affidavit in support of the caveat. Learned advocate for the caveator seeks leave to file affidavit in support of the caveats for the remaining caveators. Such leave is granted. Such caveators are permitted to file their affidavits in support of the caveats by November 21, 2016.
So far as the security is concerned, I find that the purchaser has been injuncted from creating third party rights and/or alienating the property in question by the order dated December 1, 2010 as confirmed on by the order dated June 23, 2016. Therefore the applicant before me is adequately protected. It would be inequitable to direct either the purchaser or the beneficiary to put in the sale consideration in respect of the same property which has been protected by the order of injunction. 4
In such circumstances, I am not inclined to grant any relief to the applicant in the present application. G.A. No. 2686 of 2016 is disposed of. No order as to costs.
Since some of the caveators have already filed their affidavits in support of the caveats and time to file affidavit in support of the caveat is extended for the others, it would be appropriate to give directions for treating PLA No. 148 of 1989 as a contentious cause. The department will do so subject to the beneficiary taking steps in accordance with law.
The parties will discover their respective documents within November 30, 2016; inspection forthwith thereafter. The plaintiff will prepare the Judge's Brief of Documents and will file the same on the next date of hearing. The parties will come prepared for the purpose of final hearing of the suit on the next date of hearing.
List the probate proceedings as a contentious cause under the heading "for hearing" in the monthly list of December, 2016.
(DEBANGSU BASAK, J.) TR/