In The Matter Of The Goods Of Late Km. ... vs Shailendra Nath Mukherjee And Others on 15 October, 2020

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Allahabad High Court

In The Matter Of The Goods Of Late Km. ... vs Shailendra Nath Mukherjee And Others on 15 October, 2020

HIGH COURT OF JUDICATURE AT ALLAHABAD Judgment Reserved on 09.09.2020 Judgment Delivered on 15.10.2020 In Chamber Case :- TESTAMENTARY SUITS No. - 6 of 2012 Plaintiff :- In The Matter Of The Goods Of Late Km. Priti Lata Mukherjee Defendant :- Shailendra Nath Mukherjee And Others Counsel for Plaintiff :- Dinesh Chandra Mishra,Dinesh Chandra Mishra (In Person),In Person,R.P. Mishra Counsel for Defendant :- Rajesh Gupta, Administrator-General, Anoop Banerjee, Anoop Baranwal, Dinesh Chandra Mishra,J.Nagar,NarendraMohan, Ramesh Prasad Mishra Hon'ble Vivek Agarwal, J

1. Heard Sri Dinesh Chandra Mishra in person. Sri Ramesh Chandra Mishra, counsel for applicant nos. 2 and 3, Sri Narendra Mohan for caveator and Sri Anoop Baranwal for defendant nos. 2 to 5.

2. This testamentary suit has been filed for grant of letter of administration to the plaintiffs on the strength of Will dated 21.4.1997 regarding estate of deceased Late Km. Priti Lata Mukherjee.

3. Km. Priti Lata Mukherjee alleged to have executed a Will on 21.4.1997 bequeathing her property in favour of the plaintiffs. Beneficiaries of the Will are the plaintiffs namely Ramesh Chandra Mishra, Dinesh Chandra Mishra and Brijesh Chandra Mishra, s/o Ram Krishna Mishra after her lifetime.

4. In the plaint, it is mentioned that one Late Chittanando Mukherjee owned a House No. 210/145 Alenganj, Allahabad measuring 478 Sq. yards and another adjacent plot no. 92 having area of 548 Sq. yards. He was full and absolute owner of the aforesaid properties during his lifetime. Abovenamed Chittanando Mukherjee died in the year 1948 leaving behind his two sons namely Shailendra Nath Mukherjee and Biswanath Mukherjee, his wife Braj Bala Devi and two daughters namely Smt. Shanti Banerjee and Km. Priti Lata Mukherjee. According to the plaint averments after death of Chittanando Mukherjee family partition took place amongst family members and Shailendra Nath Mukherjee and Biswanath Mukherjee were made exclusive owner of plot no. 92 measuring 548 Sq. yards whereas it was decided that Smt. Shanti Banerjee who was married in the year 1932 will not have any share in the property of Chittanando Mukherjee. While testator Late Km. Priti Lata Mukherjee who was unmarried will have ½ of the southern portion of house No. 210/145, Alenganj, Allahabad while her brothers Shailendra Nath Mukherjee and Biswanath Mukherjee will have ¼th share each in the northern ½ share of house no. 210/145, Alenganj, Allahabad. It is further mentioned in the plaint that in terms of this family settlement, a partition wall was erected and house no. 210/145, Alenganj, Allahabad was partitioned into northern ½ portion and southern ½ portion. It is alleged that though partition wall was broken by Shailendra Nath Mukherjee with a view to grab the southern portion, but he failed and plaintiffs obtained photograph of the said broken partition wall.

5. It is submitted that Shailendra Nath Mukherjee and Biswanath Mukherjee applied for mutation in regard to plot no. 92, Alenganj, Allahabad and same was sanctioned in their favour vide this order dated 22.8.1950. This property, contained in plot no. 92, has been sold by the brothers in favour of one Narendra Bhushan Ghosh vide registered sale deed dated 22.2.1957.

6. In the year 1969 Biswanath Mukherjee executed a sale deed of his 1/4th share of house no. 210/145, Alenganj, Allahabad in favour of his brother Shailendra Nath Mukherjee and therefore Shailendra Nath Mukherjee has become exclusive owner of northern ½ portion of house no. 210/145, Alenganj, Allahabad. It is further mentioned in the plaint that Shailendra Nath Mukherjee had written a letter in Bangla language to his mother Smt. Braj Bala Devi on 19.9.1965 admitting ½ share of Km. Priti Lata Mukherjee in the property namely house no. 210/145, copy of which alongwith Hindi translation has been enclosed as Annexure-3 to the plaint.

7. It is mentioned in the plaint that one Nanhe Lal was living in the accommodation i.e. northern portion of the house when a notice dated 02.02.1970 was sent by Shailendra Nath Mukherjee for eviction of the said tenant and said notice sent through counsel Abdul Mazid is available on record as Annexure-4. In this notice, it is mentioned that his client is owner of the northern ½ portion of house no. 145, Alenganj, Allahabad. Thereafter revision was filed by Shailendra Nath Mukherjee in which it has come on record that Shailendra Nath Mukherjee was residing in the southern portion of the house in question and after mentioning such fact, revision was dismissed treating that revisionist was not having bona fide requirement of the northern portion of the property.

8. It has come on record that Smt. Braj Bala Devi died on 22.11.1973 whereas Biswanath Mukharjee died on 23.11.1975 without leaving any successor and Shanti Banerjee died in the year 1988 leaving behind three sons and two daughters.

9. On 5.1.1982 Shailendra Mukherjee preferred an application for mutation of his name while Km. Priti Lata Mukherjee filed an application for mutation of her name including his brother Shailendra Nath Mukharjee. Sahayak Nagar Adhikari passed order dated 21.07.1982 directing for recording the names of Shailendra Nath Mukherjee, Km. Priti Lata Mukharjee and Smt. Shanti Banerjee as legal heirs in the aforesaid property in question in the records of municipal corporation.

10. It is also averred that even if it is presumed that family partition had not taken place then Km. Priti Lata Mukherjee will have at least ½ share in building no. 210/145 in as much as there are only two constructed rooms in southern portion against 5 constructed rooms in the northern portion and, therefore, even if Km. Priti Lata Mukherjee has 1/3rd share in the house no. 210/145 and plot no. 92, southern portion will go to her.

11. It is submitted that Km. Priti Lata Mukherjee preferred injunction suit No. 231/1991, (Km. Priti Lata Mukherjee Vs. Shailendra Nath Mukherjee), restraining Shailendra Nath Mukherjee from interfering in the use of latrine and bathroom for herself. Shailendra Nath Mukherjee filed written statement denying share of Km. Priti Lata Mukherjee with a view to grab the entire southern portion of the property. Copy of this written statement is Annexure-7. Thereafter, it is mentioned that on 24.6.1994 Km. Priti Lata Mukherjee entered into a registered agreement to sell for sale of her southern ½ portion of house No. 210/145 in favour of the petitioners for a sum of Rs. 1,80,000/- with condition that sale deed will be executed in favour of the petitioners within a period of 8 months after getting permission under section 27 of the Urban Ceiling Act and clearance from the Income Tax Department, she had received a sum of Rs. 80,000/- as advance. Copy of this agreement to sell is Annexure-8. Thereafter Km. Priti Lata Mukherjee executed a registered power of attorney in favour of Ram Krishna Mishra, father of the plaintiffs and on 25.6.1994 had handed over the possession of the building in question in favour of the plaintiffs. Copy of this Kabjanama is enclosed as Annexure-10.

12. It has also come on record that Shailendra Nath Mukherjee filed partition suit no. 715 of 1994 on the ground that share of Km. Priti Lata Mukherjee in building in question is 1/9th only and had also filed an application for injunction to restrain her not to execute sale deed against agreement to sell dated 24.6.1994. In this case Km. Priti Lata Mukherjee filed her written statement admitting handing over of possession to the plaintiffs and in this regard reliance has been placed on document-Annexure-12, which is affidavit dated 21.7.1994.

13. Relief of injunction was granted against Km. Priti Lata Mukherjee restraining her from executing any sale deed in terms of the agreement to sell dated 24.6.1994 till finalisation of the suit. Thereafter aforesaid two suits were consolidated and decided on 14.2.2002, whereby Km. Priti Lata Mukherjee was allowed to use latrine and bathroom situated on northern east corner of the house in the commission map 26-A and it was directed that Shailendra Nath Mukherjee shall not cause any obstruction in the use. Similarly in suit no. 715 of 1994, it is held that Shailendra Nath Mukherjee has 7/12 share in house no. 210/145 and suit of the Shailendra Nath Mukharjee was accordingly decreed.

14. It is mentioned in the plaint that Shailendra Nath Mukherjee filed two civil appeals no. 52 of 2002 and 61 of 2002 against the order dated 14.2.2002 and had obtained stay orders dated 21.3.2002 and 10.4.2002 regarding preparation of the final decree. Therefore, the sale deed could not be executed in terms of the agreement to sell dated 24.6.1994 in her lifetime on account of aforesaid stay order dated 3.9.1994 granted by the trial court regarding non execution of the sale deed in favour of the petitioners or any third party, Km. Priti Lata Mukharjee had executed a registered Will dated 21.4.1997.

15. Km. Priti Lata Mukherjee retired as Assistant Teacher on 31.07.1990 as is evident from her Pensioner Identity Card and it had allegedly filed nomination in favour of the plaintiffs to receive any remnants of post retiral benefits released after her death.

16. It is pointed out that there are two attesting witnesses of the aforesaid registered Will namely Jagdish Pandey, R/o Police Lines, Allahabad and Om Prakash Tiwari, Advocate, S/o Maharani Deen Tripathi. It is further averred that in the year 2003 Km. Priti Lata Mukherjee was 70-years of age and her mental and physical condition was not good. Therefore, Shailendra Nath Mukherjee and respondent no. 6 got greedy to grab the southern portion of house of the petitioners and thereafter Km. Priti Lata Mukherjee was unduly pressed by Shailendra Nath Mukherjee and respondent no. 6 to live with them and they in collusion and putting undue influence on Km. Priti Lata Mukherjee got the power of attorney dated 24.6.1994 cancelled vide document dated 20.5.2003. She was also pressed to file suit no. 774 of 2004, Km. Priti Lata Mukherjee Vs. Ram Krishna and others regarding cancellation of agreement to sell dated 24.6.1994. In the aforesaid suit no. 774 of 2004, present plaintiff's father Ram Krishna Mishra was also a party along with the plaintiffs. Plaintiffs who were defendants had filed an application under Order 39 Rule 1 and 2 seeking direction against Km. Priti Lata Mukherjee to be restrained from transferring, selling or alienating the property. The trial court passed order dated 24.8.2005 and refused to grant injunction in favour of the defendants/plaintiffs of this case on the ground that they had not filed suit for specific performance against agreement to sell dated 24.6.1994. Against this order Ram Krishna had filed appeal when the District Judge, Allahabad vide order dated 1.10.2005 directed the parties to maintain status quo.

17. It is submitted that petitioners filed suit No. 410 of 2006; Dinesh Chandra Mishra and others Vs. Km. Priti Lata Mukherjee and others for specific performance. It is further submitted that when another Will dated 7.8.2007 was executed by Km. Priti Lata Mukherjee, she was not able to understand any text or context of drafting and was not in a position to read anything due to her completely weak eye sight at the age of 74-years and she did not affix her signatures on the aforesaid Will dated 7.8.2007. Respondent no. 6 has committed fraud in collusion with her husband. On such pleadings, plaintiffs are praying for grant of letter of administration.

18. Defendant no. 1 Shailendra Nath Muherjee is represented through his legal heirs Ashish Kumar Sanyal, who filed counter affidavit to the effect that Shailendra Nath Mukherjee died on 4.6.2010 and he has been substituted in his place and is well acquainted with the facts of the case. Besides denying the averments made in the plaint, it is specifically mentioned that in the suit no. 231 of 1991which was filed by Km. Priti Lata Mukherjee there was no averment of partition of the property as has been canvassed by the plaintiff / petitioner and, therefore, deliberately copy of the plaint is not filed by the plaintiffs but it has been enclosed by the answering defendant as Annexure-1, alongwith his counter affidavit. In the plaint Km. Priti Lata Mukherjee has mentioned that defendant Shailendra Nath Mukherjee is annoyed with her for last one week and is trying to harass her, as a result of which on 9.3.1991 he had deliberately locked bathroom and latrine and therefore a suit for injunction was filed against Shailendra Nath Mukharjee.

19. Similarly, defendant no. 6 filed a detailed counter affidavit denying the plaint averments, submitting that plaintiff has been shown as resident of Mahatama Gandhi Marg, Lowther Road, Allahabad and they have been casting their vote from the address given in the voter list - Annexure-2. They also averred that Km. Priti Lata Mukherjee executed a Will in their favour on 7.8.2007 with all her senses intact and after considering the impact and content of the document. In support of their contention, defendants have enclosed medical discharge tickets dated 05.07.2007 and 24.07.2007 to show that Km. Priti Lata Mukherjee was a patient of C.O.P.D. i.e., Chronic Obstructive Pulmonary Disease. There was no issue with her eye sight or sensory organs. It is also submitted that even in the telephone directory address of the plaintiff is not at Allenganj, Allahabad where the property in dispute is situated and in support of his contention copy of the telephone directory issued by Bharat Sanchar Nigam Limited has been enclosed as annexure to the list of documents filed on behalf of respondent no. 6.

20. It is submitted that the document showing delivery of possession is forged and fabricated in asmuch as though plaintiff has filed copy of the document showing their possession as Annexure-10 and it is dated 25.6.1994 but in her affidavit filed in case no. 715 of 1994; Shailendra Nath Mukherjee Vs. Km. Priti Lata Mukherjee which is dated 21.7.1994, Annexure-12. Km. Priti Lata Mukherjee in para-3 has categorically mentioned that she is in possession and title of ½ portion of the property. It is further submitted that mutation order dated 21.07.1982 passed by the Municipal Authorities as is available on record, demonstrate that no partition had taken place and names of all the three legal heirs of Smt. Braj Bala Devi and Class-I heirs of Biswanath Mukherjee were jointly mutated in the municipal record. It is also submitted that though plaintiffs have raised issue of partition wall to demonstrate that partition had taken place between Shailendra Nath Mukherjee, Biswanath Mukherjee and Km. Priti Lata Mukherjee, but neither these photographs have been proved as per the requirements of Evidence Act nor witness has been examined in this regard. In fact, judgment of the Court for partition suit no. 715 of 1994, filed by Shailendra Nath Mukherjee regarding a finding that no partition had taken place has attained finality.

21. There is no date on which photographs were clicked. Neither the photographer nor the developer were examined. Even negative of the photographs have not been produced. It is also submitted that even the letter allegedly written by Shailendra Nath Mukherjee, to his mother Smt. Braj Bala Devi on 19.09.1965, written in ''Bangla' and translated copy of which is produced on record to demonstrate that Km. Priti Lata Mukherjee had half share in the property, has not been proved and therefore, these documents cannot be treated as evidence on the issue. In any case these material are of no relevance in the light of judgment and decree passed in Original Suit No. 715 of 1994 and Original Suit No. 231 of 1991.

22. It is also submitted that plaintiff's plea that a Commissioner was appointed in a matter between Km. Priti Lata Mukherjee and Shailendra Nath Mukherjee and that Commissioner had found that there were five rooms in the northern portion and two rooms in the southern portion and therefore, even if Km. Priti Lata Mukherjee had 1/3rd share, she is entitled to complete southern portion, is bellied from the evidence given by Km. Priti Lata Mukherjee in Original Suit No. 231 of 1991 where Km. Priti Lata Mukherjee was examined as PW-1 on 10.10.1995. In this case, she admitted that she is not having papers of partition. This was an unregistered partition. She also admitted that she has not seen the Commissioner Report. She also admitted that she is in possession of one room in the disputed property situated on south-west. Gate of such room opens in the west on the road. She admitted that she got a commission issued in the matter, but Commissioner had not carried out the inspection in front of her. She admitted that she is in possession of one room since last four years. She further admitted that from 1965 to 1990, she had possession of two rooms, when defendant Shailendra Nath Mukherjee had taken over possession of one room from her. She also admitted that she had not filed any case against Shailendra Nath Mukherjee, when she was dispossessed from one room. Reading of this evidence and further the statement of Km. Priti Lata Mukherjee that agreement of sale was for a sum of Rs. 2,00,000/- (two lakhs rupees) and she had received only a sum of Rs. 50,000/- (fifty thousand rupees), clarifies two aspects namely, that even in 1995, admittedly, Km. Priti Lata Mukherjee was in possession, when she had given evidence before the Court of Law in Original Suit No. 231 of 1991. Secondly, this statement establishes forged nature of agreement to sell.

23. It is also submitted that this bellies truthfulness and correctness of the ''Kabjanama' dated 25.06.1994. Further it bellies the fact that there were seven rooms in the house, two on the southern side and five on the northern side. There is no evidence of seven rooms in the disputed property. Thus denying the plaint averments, it has been prayed that suit be dismissed with cost.

24. In this plaint issues were framed vide order dated 11.12.2017 with the consent of the parties, which are as under:-

"I. Whether Late Km. Prti Lata Mukherjee has duly and validly executed the registered WILL dated 21 April 1997, and if so, its effect?

II. Whether the said WILL dated 21 April 1997 is the last valid, genuine and final WILL of Late Km. Priti Lata Mukherjee?

III. Whether the WILL dated 7 August 2007 has been duly and validly executed and is the last valid and genuine WILL of the deceased in favour of defendant No.6?"

25. Plaintiff has produced witness Dinesh Chandra Mishra (PW-1), Jagdish Pandey (PW-2), Om Prakash (PW-3) and Sri Shrish Chand Dwivedi (PW-4). On the other hand, respondent has produced DW-1 Deepak Bandopadhyay, DW-2 Prem Chandra Giri. When counsel for the defendant no. 6, submitted that he does not want to produce any other witness for cross examination, evidence was closed and the matter was directed to be listed for final hearing.

26. These witnesses have been examined and cross examined.

27. I had occasion to go through the original Wills dated 21.4.1997 and 7.8.2007 allegedly written by Km. Priti Lata Mukherjee which was opened from the sealed cover in the presence of the persons mentioned in the order sheet above and thereafter in their very presence Wills were sealed keeping photostat copy of the same as produced by the plaintiff on record for perusal and for the purpose of judgment writing.

28. I have heard counsel for the parties and perused the record.

29. All the three issues framed in the suit are inter connected and therefore they are being considered and decided together.

30. Learned counsel for the plaintiff submits that their case is that Km. Priti Lata Mukherjee on the strength of family partition had become owner of half portion of house no. 210/145 and by virtue of being such owner of the southern half portion of the aforesaid house, (herein referred to as "disputed property"), she had executed a registered agreement to sale dated 24.06.1994 in favour of plaintiffs thereafter, she had executed a registered power of attorney dated 24.06.1994 in favour of Sri Ram Krishna Mishra, father of the plaintiffs. On 25.06.1994, she had handed over the possession of the building in question in favour of the plaintiffs vide Kabjanama contained in Annexure-10. In the suit no. 231 of 1991 filed by Km. Priti Lata Mukherjee seeking injunction and in the partition suit no. 715 of 1994 filed by her brother, Shailendra Nath Mukherjee which were finally decided vide order dated 14.02.2002, Km. Priti Lata Mukherjee admitted the execution of agreement to sale and handing over the possession of the disputed property in favour of the plaintiffs. It is submitted that in Annexure-12, Km. Priti Lata Mukherjee had admitted executing an agreement to sale dated 24.06.1994. Similarly, vide Annexure-13 i.e., her written statement in Original Suit No. 715 of 1994, she admitted that too safeguard her interest from anti-social elements she had kept a help. It is submitted that there is further admission on behalf of said Km. Priti Lata Mukherjee as is evident from the narration in Annexure-16 deposition and cross examination of Km. Priti Lata Mukherjee in Original Suit No. 231 of 1991 that she executed a Will as she was not knowing the fact that she was injuncted by the Court and because of such court case, sale deed could not be executed. Similarly, it is submitted that Km. Priti Lata Mukherjee had executed a registered Will dated 21.04.1997 in favour of the plaintiffs admitting the execution of agreement to sale and possession of plaintiffs and therefore, present testamentary suit has been filed by the plaintiffs for getting the Letter of Administration in the light of duly registered Will dated 21.04.1997. It is also submitted that since, defendant no. 6- Meeta Bandyopadhyay has not denied the execution of said documents and further her husband- Deepak Bandyopadhyay, DW1 could not deny execution of said documents, and also in view of the fact that suit for specific performance of agreement to sale dated 24.06.1994 bearing suit no. 410 of 2006 has been instituted by Dinesh Chandra Mishra and 2 others vs. Priti Lata Mukherjee for specific performance of agreement to sale dated 24.06.1994 and same is pending, therefore, plaintiffs are entitled to protect their possession under Section 53-A of the Transfer of Property Act, 1882.

31. Reliance is placed on the judgment of Delhi High Court in case of Hardip Kaur vs. Kailash and another as reported in 2012 Law Suit (Del) 1353, wherein it has been held that "the agreement to sale of itself may not create any interest in the property under Section 53-A of the Transfer of Property Act, 1882, but the agreement along with the payment of entire sale consideration, handing over of the possession, execution of the receipt, affidavit, Will, indemnity bond and irrevocable power of attorney creates interest in the property within the meaning of Section 202 of the Contract Act, 1972. The words "an interest in property which forms the subject matter of agency" in Section 202 of the Contract Act, 1872 are of wider amplitude than the words "an interest in or charge on such property" in Section 54 of the Transfer of Property Act, 1882. Where the seller has received the sale consideration in pursuance of the agreement to sale and has delivered the possession to the purchaser, the purchaser would have interest in the property within the meaning of Section 202 of the Contract Act, 1872."

32. In this backdrop, Delhi High Court observed that plaintiff therein had made absolutely false and incorrect statements on oath before the Trial Court and in this backdrop, it has been held that false claims and defenses are really serious problem with real estate litigation, because of ever escalating prices of the real estate as it is the duty of the Courts to see that such wrongdoers are discouraged at every step and even if they succeed in prolonging the litigation, ultimately, they may suffer the cause of all these years long litigation and in this backdrop, order of the courts below was upheld by the Delhi High Court.

33. Reliance is also place on the judgment of High Court of Madras in case of G. Ganeshan and others vs. P. Sundari and others as reported in 2011 Law Suit (MAD) 13, wherein the issue which has been dealt with by the High Court of Madras was whether an unprobated Will is admissible in evidence to prove the cancellation of an earlier Will upon which Letter of Administration is sought for. Answering this in para-17, the Madras High Court referring to provisions contained in Sections 211 and 213 of the Indian Succession Act, 1925, it has been held that "close reading of the above judgments would make it very clear that it is settled proposition of law that in view of the bar contained in Section 213 of the Act, an unprobated Will cannot be admitted in evidence in any proceeding to establish any right or title derived under the Will. However, for collateral purposes, such an unprobated Will can be proved in evidence. This is the view which has been taken by the Supreme Court in case of Commissioner, Jalandhar Division and others vs. Mohan Krishan Abrol and another as reported in 2004 (7) SCC 505, wherein the Supreme Court had laid down the proposition that an unprobated Will can be admitted in evidence for collateral purposes, but Division Bench of Madras High Court took a view that an unprobated Will sought to be proved not for collateral purpose, but for the main purpose of proving that the said Will is the last free Will of the testator, cancelling the earlier registered Will. For this main purpose, unless the said Will is probated, the same cannot be admitted in evidence."

34. Reliance is also placed on the judgment of Allahabad High Court in the matter of Late Smt. Dukhia (Deceased), Ramayan Prasad Singh- plaintiff vs. Vijay Bahadur Singh and others- defendants decided in testamentary suit no. 6 of 1998 vide order dated 04.08.2006 wherein it has been held that "the lest merely emphasizes that, in determining the question as to whether an instrument produced before the Court is the last Will of the testator, the Court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator, who is no longer alive.

It is obvious that for deciding material questions of fact which arise in applications for probate or in actions on wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. It may, however, be stated generally that a propounder of the will has to prove the due and valid execution of the will and that if there are any suspicious circumstances surrounding the execution of the will the propounder must remove the said suspicions from the mind of the Court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties.

It is no doubt true that on the proof of the signature of the deceased or his acknowledgment that he has signed the will he will be presumed to have known the provisions of the instrument he has signed; but the said presumption is liable to be rebutted by proof of suspicious circumstances. What circumstances would be regarded as suspicious cannot be precisely defined or exhaustively enumerated. That inevitably would be a question of fact in each case.

These principles were reiterated in Rani Purnima Debi Vs. Kumar Khagendra Narayan Deb, AIR 1962 SC 567; Shashi Kumar Banerjee and others Vs. Subodh Kumar Banerjee, AIR 1964 SC 529; Ramchandra Rambux Vs. Champabai, AIR 1965 SC 354; Pushpavati Vs. Chandraja Kadamba, AIR 1972 SC 2492; Jaswant Kaur Vs. Amrit Kaur, AIR 1977 SC 74; S. Sundaresa Pai Vs. Sumangala T. Pai, AIR 2002 SC 317; Janki Narayan Bhoir Vs. Narayan Namdeo Kadam, AIR 2003 SC 761; Pentakota Satyanarayana Vs. Pentakota Seetharatnam, AIR 2005 SC 4362 and Madhukar D. Shende Vs. Tarabai Aba Shedage, AIR 2002 SC 637.

In the present case, the propounder has not removed the suspicious circumstances surrounding the will. He has not stated about the care and affection, which he had given to his mother-in-law. He has not even given name of his wife in the petition or in his statement. Both the plaintiff's witnesses are totally silent about the registration of the will at Tehsil Bara on the same day, which creates very strong doubt over the due execution of the will by Smt. Dukhiya. The will also does not mention the details of the properties. All these circumstances go to show that the plaintiff, who has not even proved his relationship with the deceased, got the will executed in highly suspicious circumstances, creating doubt over the execution, attestation and registration of the will of the deceased. In the facts and circumstances, I therefore find that Shri Ramayan Prasad Singh has failed to prove the due execution of will of Smt. Dukhiya in his favour and decide the issue against the plaintiff."

35. Reliance is also placed on the judgment of Calcutta High Court in case of Usharani Roy vs. Hemlata Roy as reported in AIR 1946 Cal 40, Calcutta wherein it has been held that "when a second will purporting to be executed by the same testator is set up by a caveator there is a duty cast upon the probate Court to see, quite irrespective of what the parties might choose to allege, how far the latter will has superseded the earlier one and whether probate has to be granted of one of the two wills to the exclusion of the other or both of them together. This duty the probate Court cannot discharge unless the second will is proved in the proper way after issuing of necessary citations. The fact that the caveator may not be interested in obtaining a probate of the second will is, in our opinion, really immaterial. A will may be revoked in various ways as laid down in S. 70, Succession Act. If the caveator relies upon a subsequent instrument of revocation executed by the testator no difficulty arises and he can prove execution and attestation of the document in the ordinary way. Where, however, the will set up by the propounder is said to have been revoked by a subsequent will, the situation becomes entirely different. The latter will cannot be looked upon merely as an instrument of revoking the earlier one and nothing else. To amount to a will it must be the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death. As we have said above, if the probate Court is apprised of the existence of more than one testamentary document in respect to a dead man's property it is its clear duty to decide as to which of the documents, if any, should be admitted to probate and whether or not probate should be granted of all of them together.

If the caveator is not the executor under the later will, a citation would be necessary as is provided for by S. 229, Succession Act, calling upon the executor to accept or renounce his executorship and if the executor renounces or fails to accept the executorship within the time limited for acceptance or refusal thereof, the will may be proved and letters of administration with a copy of the will annexed may be granted to the person who would be entitled to administration in cases of intestacy. (Section 231, Succession Act.) The caveator must ex hypothesi be a person entitled to administration in cases of intestacy; otherwise he would have no locus standi to come and contest the probate proceeding. Consequently, there is no bar to his getting letters of administration with a copy of the will annexed as laid down in S. 231, Succession Act. If on the other hand, the executor chooses to apply for probate the proceeding may be commenced at his instance and the two proceedings might be consolidated and heard together."

36. Reliance is also placed on the judgment of Hon'ble Supreme Court in case of Mrs. Hem Nolini Judah v. Mrs. Isolyne Sarojbashini Bose and others as reported in 1962 AIR SC 1471, wherein it has been held that in the light of the provisions contained in Section 213(1) of the Indian Succession Act that this section clearly creates a bar to the establishment of any right under Will by an executor or a legatee unless probate or Letter of Administration of the Will have been obtained.

37. Reliance is also placed on the judgment of Madhya Pradesh High Court in case of Ram Shankar vs. Balakdas as reported in AIR 1992 MP 224 decided on 29th August, 1991 by Justice T.N. Singh wherein it has been held that "clear and satisfactory" evidence must be forthcoming when a plea has raised that the earlier Will had been revoked because the proof will be required of the fact that "the two cannot stand together". Section 213(1) of the Indian Succession Act does not evidently relate to any right of vesting which is automatic under the Will. It relates to exercise of any right consequent upon such vesting. As the purpose of a probate is to prove the "last Will", the probated Will shall prevail against unprobated to enforce legal and valid vesting under the "last Will" proved as validly executed. By probate, vesting taking place under an unprobated Will may become inoperative as power is conferred expressly on the Probate Court to "revoke" under Section 263, and "recall" under Section 216, the probate granted. The question of divesting and of consequent vesting in proper person may arise in such cases and that Will depend on Probate Court's decision.

38. There was, therefore, no scope for the trial Court to express any opinion on plaintiff's claim based on the Will dated 30-9-1988, executed by deceased Raghuvir Das in their favour, that the same was not genuine; and for that matter, was not the "last Will" of the said Raghuvir Das. Not only that decision cannot operate as res judicata in any other proceedings, it shall be open to the plaintiffs to apply for probate of that Will and to take a conclusive finding of the Probate Court as to the legality, validity and genuineness of that Will. Till they do so, they cannot have any locus standi to interfere with the possession of the suit property by defendant/respondent Balakdas who, according to their own case, is possessing the same on the basis of the Will executed in his favour on 19-4-1979 by the same Raghuvir Das. Because, as already pointed out above, Balakdas is not required to take out probate for the purpose of vesting in him of the property of the deceased. Until such time as it is not proved that the Will dated 19-4-1979 was not the "last Will" of deceased Raghuvir Das, the property of the deceased shall be deemed to have been vested in him on and from his death which took place on 30-9-1988.

39. Reliance is also placed on the judgment of Hon'ble Supreme Court in case of H.V. Nirmala and anothers vs. R. Sharmila and another as reported in 2018 (3) SCC 303, wherein it has been held that "having examined, we are inclined to concur with the reasoning of the High Court and accordingly answer the question in favour of Respondent No. 1, i.e., the Plaintiff and against the Appellants (Defendant Nos. 2 and 3). In other words, we hold that the Plaintiff was able to prove the Will dated 12.03.1980 in accordance with law and there is no reason to hold otherwise. This we say for the following reasons:-

First, the Will dated 12.03.1980 is a registered Will.

Second, it was executed by none other than the father-Ramaiah in favour of his minor daughter-Sharmila and minor Son-Umesh born from first wife.

Third, when Ramaiah-the father bequeathed his property to his minor children then we find nothing unnatural in it. In our opinion, it is a natural bequeath out of love and affection.

Fourth, there is no question of minor daughter and son playing an active role in execution of the Will dated 12.03.1980 in their favour. It is for the simple reason that both were too young to indulge in any kind of illegal acts to grab the suit property. In other words, it was too much to expect from the minor children to play any active role in grabbing their father's property and create forged Will.

Fifth, it has come in the evidence that the original Will dated 12.03.1980 was not in possession of the Plaintiff but it was in possession of Defendant No. 1. For this reason, the Plaintiff filed its certified copy after obtaining from Registrar's office.

Sixth, this explanation was accepted by the High Court and, in our opinion, rightly.

Seventh, since the original Will was not in Plaintiff's possession, its existence and legality could be proved by the Plaintiff by leading the secondary evidence.

Eighth, the Plaintiff proved the Will dated 12.03.1980 in accordance with the requirement of Section 68 of the Evidence Act, 1872 by adducing her own evidence and by examining one attesting witness of the Will. In our view, such evidence was sufficient to prove the Will.

Ninth, it is not in dispute that the later Will dated 20.05.1995 disclosed by the Defendants did not find mention therein the fact of execution of first Will dated 12.03.1980 by the testator. In our view, the Will dated 20.05.1995 should have found reference of the earlier Will dated 12.03.1980 because Will dated 12.03.1980 was a registered Will and in order to prevail the last Will over the earlier one, the reference of revocation of the earlier Will dated 12.03.1980 was necessary in the later Will. It was not so.

Tenth, since the Plaintiff was not a party to the compromise decree dated 25.01.1997 passed in OS No. 7266 of 1996, it was not binding on her.

Lastly, once the Will dated 12.03.1980 is held proved, in accordance with law, the Plaintiff becomes entitled to claim a declaration in her favour that she is the owner of the properties bequeathed to her by the testator as specified in the Will."

40. On the other hand, case of the defendant no. 6 is that Km. Priti Lata Mukherjee had executed a Will dated 07.08.2007 while residing in the property which plaintiff alleges to have obtained possession and which has been demonstrated by them not to be in possession of the plaintiffs. This has been substainiated through the voter list and the telephone directory. It is further submitted that in the subsequent Will of 2007, she categorically mentioned that she is staying alone in the said house. Her nephew, Deepak Bandyopadhyay and his wife, Smt. Meeta Bandyopadhyay visits her daily and not only takes care of her, but also takes care of all her requirements. She had willed her share of property in favour of Meeta Bandyopadhyay after her death. It is submitted that in fact, no partition had taken place between Km. Priti Lata Mukherjee and her brothers and plaintiff has failed to prove any partition. It is also submitted that even suit for specific performance as has been filed in the year 2006 bearing no. 410 of 2006 (Dinesh Chandra Mishra and others vs. Km. Priti Lata Mukherjee) pending in the Court of Civil Judge (Senior Division), Court No. 13, Allahabad is not maintainable, and is barred by Law of Limitation. It is submitted that in fact vide judgment dated 14.02.2002, both the suits filed by Km. Priti Lata Mukherjee seeking injunction bearing original case nos. 231 of 1991 and 715 of 1994 filed by Shailendra Nath Mukherjee, learned Civil Judge (Junior Division) Allahabad District Court. had granted a decree of injunction in favour of Km. Priti Lata Mukherjee and against Shailendra Nath Mukherjee from not to prevent her from using latrine and bathroom situated on north-east of the Commission Map No. 26-A and had also decreed the suit of partition in favour of Shailendra Nath Mukherjee holding him to be owner of 7/12 portion of said house situated at house no. 210/145, Allenganj, Allahabad, whereas share of Km. Priti Lata Mukherjee has been decreed to the extent of 1/3rd.

41. It is submitted that this judgment and decree negates the argument raised by learned counsel for the plaintiffs Dinesh Chandra Mishra and others that they were put into possession of the house in the year 1994. In fact, both the cases were consolidated in the year 1996 and held that no partition had taken place between the parties, as has been canvassed by the plaintiff in the present testamentary suit and further noted that it has come on record that lock which was put by Shailendra Nath Mukherjee was opened on objection raised by Km. Priti Lata Mukherjee.

42. Reading evidence of Km. Priti Lata Mukherjee dated 10.10.1995 in Original Suit No. 231 of 1991 (Annexure-16) and judgment and decree passed in Original Suit No. 231 of 1991 and 715 of 1994 as is available on record as Annexure-17, it is pointed out that possession of the plaintiff as mentioned in the testamentary suit is not made out. It is also submitted that vide said judgment and decree contained in Annexure-17, only 1/3rd share of the property was fixed in the total house constituting the property situated at 210/145 , Allenganj, Allahabad in favour of Km. Priti Lata Mukherjee and therefore, neither Km. Priti Lata Mukherjee had a right to execute an agreement to sale for half of the portion of the disputed property nor she had any right to execute a Will for a portion in excess of her share in the property.

43. It is further submitted that Km. Priti Lata Mukherjee had revoked the power of attorney contained in Annexure-9, and in any case since, it was not an irrevocable power of attorney, law laid down by Delhi High Court in case of Hardip Kaur vs. Kailash and another (supra) will not be applicable to the facts and circumstances of the present case.

44. It is further submitted that execution of successive documents namely, agreement to sale, power of attorney and then so called, Kabjanama contained in Annexure-10 leads to singular conclusion that Will did not form a part of independent transaction out of sweet will, love and affection, but originated out of compulsion of a transaction which was forced upon Km. Priti Lata Mukherjee taking advantage of her lonely and singular status.

45. It is submitted that Km. Priti Lata Mukherjee in Annexure-12, which is the affidavit dated 21.07.1994 filed by her in counter to the suit filed by Shailendra Nath Mukherjee bearing no. 715 of 1994 categorically stated in para-3, that she is in possession of half of the property and never ever mentioned that she has already parted with her possession in favour of the plaintiff in the present testamentary suit. This document has been relied on by the plaintiffs in the present suit and they have only filed this as Annexure-12. Similar is the status of Annexure-16 dated 10.10.1995.

46. It is submitted that cleverly and deliberately plaintiffs did not file copy of the plaint as filed by Km. Priti Lata Mukherjee bearing case no. 231 of 1991 along with the testamentary suit, in which there is no mention of any partition between her and her brothers or other family members. This plaint is available along with the counter affidavit filed by said Ashish Kumar Sanyal, legal heir of respondent no. 1 i.e., Shailendra Nath Mukherjee who died on 04.06.2010.

47. It is also submitted that once Km. Priti Lata Mukherjee had cancelled the power of attorney and executed a Will in favour of the answering defendant no. 6 and even mutation has been carried out in favour of Meeta Bandyopadhyay, defendant no. 6 in the records of the Nagar Nigam. Will dated 21.04.1997 in relation to which Letter of Administration is sought is neither a genuine Will nor it can be said to be executed out of free volition. This fact is corroborated from the pleadings mentioned in the Suit No. 774 of 2004 filed by Km. Priti Lata Mukherjee. It is also submitted that one of the witnesses of the Will is father-in-law of brother of plaintiff, viz., Dinesh Chandra Mishra who was working at police station and another witness is Advocate closely associated with Dinesh Chandra Mishra, plaintiff. It is submitted that they are trying to grab the property of a lady on the basis of false and frivolous documents. Merely not filing of the probate of the subsequent Will cannot be taken to be a circumstance against the defendant no. 6 especially, in the light of the law laid down by Hon'ble Supreme Court in case of Commissioner vs. Mohan Krishan Abrol (supra), wherein it has been held by Hon'ble Supreme Court that such Will can be used for collateral purposes.

48. Thus, it is submitted that neither the plaintiffs are in possession of the suit property nor they were ever given the possession. Their suit for specific performance is highly belated and not maintainable and thirdly, they are not entitled to claim Letter of Administration on the strength of Will dated 21.04.1997. It is also submitted that plaintiffs, throughout had knowledge of all the legal developments including outcome of partition suit etc but never approached the deceased Ms. Priti Lata Mukherjee for correction of Will. They never sought correction from ½ share to 1/3rd share, which goes to prove that the Will dated 21.04.1997 is a forged and fabricated document. This Will was possibly obtained by the plaintiffs using their dominant status, taking advantage of intra-family dispute, without knowledge and understanding of Km. Priti Lata Mukherjee.

49. Therefore, it is prayed that the suit for grant of 'Letter of Administration' be dismissed.

50. Documentary evidence as has been produced by the plaintiff is to the effect that as per the legal notice sent by Shailendra Nath Mukherjee to Nanhe Lal, Advocate seeking eviction of the tenant from the northern half portion of the ground floor of house no. 145, Allenganj, Allahabad, it is mentioned that Shailendra Nath Mukherjee is landlord of the northern half portion of house no. 145. Certified copy of this document is available on record. Similarly, an agreement to sale dated 24.06.1994 has been enclosed between Km. Priti Lata Mukherjee and Ramesh Chandra Mishra, Dinesh Chandra Mishra and Brijesh Chandra Mishra s/o Ram Krishna Mishra. In this agreement, it is categorically mentioned that agreement is without possession. Thereafter, document no. 3 is of the same date, dated 24.06.1994 giving power of attorney in favour of Ram Krishna Mishra s/o Late Ram Pratap Mishra, father of plaintiffs. Document no. 4 is an agreement to give possession of the property in regard to which agreement to sale was executed on 24.06.1994 and power of attorney was executed. This document dated 25.06.1994 clearly makes a mention that possession was handed over in favour of the plaintiffs.

51. Another document is the photocopy of the plaint filed by Shailendra Nath Mukherjee seeking partition of the property, which was registered as Civil Suit No. 715 of 1994 and apparently was filed in July, 1994. This is followed by the written statement filed by Km. Priti Lata Mukherjee in which she categorically mentioned that the deponent has right to use and possession over her half portion and her possession is continuing on the said portion. This is clearly mentioned in Para-5 and 6 of the affidavit on which plaintiff has placed reliance and date of this affidavit is 21.07.1994, that Km. Priti Lata Mukherjee admitted her possession. Document No. 7 is the another affidavit filed by Km. Priti Lata Mukherjee dated 01.08.1994.

52. Plaintiff has also filed copy of order sheet from First Additional Munsif, Allahabad dated 03.09.1994 granting injunction in favour of the plaintiff-Shailendra Nath Mukherjee and against Km. Priti Lata Mukherjee restraining her from transfering any of her share in favour of any third person and keep her share intact. Thereafter, copy of examination of Km. Priti Lata Mukherjee has been filed. A copy of the judgment dated 01.03.1998, rejecting application under Order 39 Rule 2A has been filed and thereafter, a copy of the judgment passed by Civil Judge (Junior Division), West Allahabad dated 14.02.2002 has been brought on record whereby partition of the property, contained in house no. 210/145, Allenganj, Allahabad, was granted holding that Shailendra Nath Mukherjee will have 7/12th share whereas Km. Priti Lata Mukherjee will have 1/3rd share and defendant nos. 2 to 5 i.e., Dulal Chandra Banerjee, Satyavrat Banerjee, Devbrat Banerjee, Sona Mukherjee will have 1/12th share. Similarly, it was directed that in terms of the provisions contained in Section 4 of the Partition Act, 1893 and Section 44 of the Transfer of Property Act, 1882, since there is a provision prohibiting the co-sharer to sell one's share i.e., the share of the co-sharer in favour of a third party inasmuch as there is a preferential right of the co-sharer to purchase the property. It has been held that in case Km. Priti Lata Mukherjee and defendant nos. 2 to 5 decide to alienate their share of the property, then till preparation of the final decree, they shall sell it in favour of Shailendra Nath Mukherjee on a preferential basis if he is willing to pay the sale consideration in her favour. Similarly, it was directed that Shailendra Nath Mukherjee will not cause any obstruction to Km. Priti Lata Mukherjee in use of laterine and bathroom in house no. 210/145.

53. Thereafter there are orders of the Court of District Judge where Shailendra Nath Mukherjee has challenged the judgment and decree passed by the trial court. In this appeal, cross objections were filed on behalf of Km. Priti Lata Mukherjee. Thereafter, there is a copy of the Will dated 21.04.1997 whereby Km. Priti Lata Mukherjee allegedly bequeathed her share of property in favour of the plaintiffs namely, Ramesh Chandra Mishra, Dinesh Chandra Mishra and Brijesh Chandra Mishra.

54. Plaintiff has also filed copy of the suit filed by Km. Priti Lata Mukherjee against the plaintiffs and their father seeking cancellation of the agreement to sale dated 24.06.1994 on the ground that such agreement to sale is illegal, null and void, obtained through misrepresentation, forgery and coercion. This is followed by the version of the defendants. In this case i.e., suit no. 774 of 2004, an application under Order 39 Rule 1 CPC, was filed by the defendants, who are plaintiffs in the present case and it appears from the order dated 01.10.2005 passed by the Court of District Judge, Allahabad that such application for injunction was rejected though plaintiffs have not filed on record copy of the order passed by the trial court. In this miscellaneous appeal vide order dated 01.10.2005, Learned District Judge, directed the parties to maintain status quo in relation to the disputed property till the next date fixed.

55. Plaintiffs have also brought on record a copy of the suit bearing no. 410 of 2006 filed by them in the Court of Civil Judge (Senior Division), Allahabad against Km. Priti Lata Mukherjee seeking a decree in favour of the plaintiffs and against the defendants for execution of the sale deed in respect of her share in the house in suit no. 210 (new) 145 (old) situated in Mohalla-Allenganj, Allahabad. Plaintiffs have also filed copy of the judgement dated 03.02.2018 whereby in appeal filed by them against the order dated 24.08.2005 in original suit no. 774 of 2004, Km. Priti Lata Mukherjee vs. Ram Krishan Mishra and Others, their application for temporary injunction is allowed directing the defendants (legal heirs and successors of Km. Priti Lata Mukherjee) to not to carry out any sale deed in favour of a third party.

56. On the other hand, defendants have filed a copy of passbook of Late Priti Lata Mukherjee bearing A/c No. 1090 Ledger Folio 6/185 of Allahabad Bank, Allenganj issued on 18.03.1985 and copy of cheque book issued by Allahabad Bank to show that Km. Priti Lata Mukherjee has been paying different sums to the plaintiffs and vide cheque no. 055513, she had paid a sum of Rs. 75,000/- (seventy five thousand rupees) in favour of R.K. Mishra.

57. Then on 11.09.1996 vide cheque no. 055514, she had paid a sum of Rs. 5,000/- (five thousand rupees) in favour of D.C. Mishra and then again a sum of Rs. 1,000/- (one thousand rupees) was paid in favour of D.C. Mishra on 30.10.1996 vide cheque no. 055515. There is a certificate as document no. 3 issued by Allahabad Bank, Allenganj Branch, Allahabad dated 28.01.2004 exhibited as A-25 in which it is certified that on 06.09.1994, through clearing of cheque no. 055513, a sum of Rs. 75,000/- (seventy five thousand rupees) was paid in the account of Indian Overseas Bank of Ram Krishna Mishra.

58. Similarly, copy of the card, issued by the Treasury Officer, Civil Lines Treasury, Allahabad has been enclosed in which it is clearly mentioned that Km. Priti Lata Mukherjee was given a P.P.O. No. M2662P2634 upon her retirement on 31.07.1990 and she was drawing a pension of Rs. 2,000/- (two thousand rupees). Thereafter, her medical prescriptions from Priti Hospital, Panna Lal Road, Allahabad showing her admission on 30.06.2007 and discharge on 05.07.2007 and thereafter again admission on 11.07.2007 and discharge on 24.07.2007 have been brought on record to show her actual condition of health during the relevant period. Her prescription dated 15.03.2008 and 16.04.2008 and then her certificate of death dated 17.12.2009 have been brought on record.

59. There are photocopies of the bills issued in name of Km. Priti Lata Mukherjee by Allahabad Water Department and the letter written by Km. Priti Lata Mukherjee to the U.T.I. Services Ltd. on 06.03.2009. Another passbook of Km. Priti Lata Mukherjee of Allahabad Bank, Allenganj Branch of A/c No. SB9241 has been brought on record. A newspaper cutting published in Northern India Patrika dated 29.07.1994 showing that 'abortive bid to grab house' was made by Ramesh Chandra Mishra. There are other newspaper reports dated 31.10.1996 followed by card printed to show the death ceremony programmes of Km. Priti Lata Mukherjee. This followed by the order passed by Assistant Municipal Commissioner/Zonal Officer, Zone 4, Nagar Nigam, Allahabad carrying the mutation of share of the property of Priti Lata Mukherjee in favour of Meeta Bandyopadhyay followed by certain pages of telephone directory and voter's list of the area namely, Mahatma Gandhi Marg and Lowther Road dated 10.01.2009 issued by the Election Commission of India showing the names of the plaintiffs Dinesh Chandra Mishra at serial no. 925, his wife Pragati Mishra at serial no. 926, Ram Krishna Mishra at serial no. 777, Shanti Mishra at serial no. 778, Ramesh Chandra Mishra at serial no. 779 and his wife Vartika Mishra at serial no. 780 to show that they were never in possession of the property at Allenganj, as has been canvassed by them. Also there is a copy of deed of cancellation of power of attorney dated 24.06.1994 registered in the Office of Sub-Registrar, Sadar-Allahabad dated 20.05.2003 has been brought on record. Defendants have also brought on record a copy of the application dated 26.11.2012 regarding cancellation of the ration card and deletion of the names of Dinesh Chandra Mishra, Advocate of High Court and his wife Pragati Mishra in the electoral roles.

60. They have also brought on record copy of Advocate's Register to show that address of Dinesh Chandra Mishra s/o Ram Krishna Mishra has been shown as 253/10A, Mahatma Gandhi Marg, Medical College Crossing, Allahabad. Copies of electricity bills issued in name of Meeta Bandyopadhyay w/o Deepak Bandyopadhyay showing their possession on the suit property has also been produced. Defendants also produced original documents issued by Madhyamik Siksha Parishad, Allahabad, Uttar Pradesh dated 15.03.1975 showing address of Deepak Bandyopadhyay husband of the beneficiary of 2007 Will, viz., Meeta Bandyopadhyay as 145, Allenganj, Allahabad and so also appointment letter dated 11.02.1972 issued in favour of Deepak Bandyopadhyay on the post of stenographer issued by the Inspecting Assistant Commissioner of Income Tax, Allahabad on the address of 145, Allenganj, Allahabad to show that it is in fact Deepak Bandyopadhyay and his wife, who have been taking care of Km. Priti Lata Mukherjee and not the plaintiffs. Defendants have also filed copy of order dated 12.12.2018 passed by a coordinate Bench of this High Court in Matters under Article 227 No. 1574/2018 and 5783/2018, whereby the writ court has set aside the order dated 03.02.2018 passed by the First Appellate Court in Misc. Appeal No. 260/2005.

61. The case of the defendant is that not only Km. Priti Lata Mukherjee had returned a sum of Rs. 81,000/- (eighty one thousand rupees) in favour of the plaintiffs and their father through account payee cheques, but also she was not entitled to transfer her share of property in favour of an outsider overlooking the claims of her own brother especially in the light of the provisions contained in Section 4 of the Partition Act, 1893 and Section 44 of the Transfer of Property Act, 1882. It is also their case that Km. Priti Lata Mukherjee not only revoked the power of attorney through a registered deed dated 20.05.2003, but also never put the plaintiffs in possession of the suit property as is apparent from her own affidavit dated 10.10.1995 filed by the plaintiffs. Plaintiff has filed document no. 6 dated 21.07.1994 in para-5 and 6 of which Km. Priti Lata Mukherjee has categorically mentioned that she is in possession of half portion of her property. She only made a mention of agreement to sale, but has never mentioned that she ever parted with the possession which belies the so called ''kabjanama' i.e., letter of possession dated 25.06.1994. Similarly, supplementary affidavit filed in suit no. 715 of 1994, there is a improvisation and it is mentioned in Para-4 that in half of her portion, she and her helpers are in possession, but neither names of the helpers are mentioned nor any details have been given. In fact it is submitted that a helper may be an employee or a licensee but certainly not a possessor. It also makes a mention of a police report dated 25.07.1994 and another fact that proceedings of partition are completed at the Municipal Corporation, but there is no document to substantiate this submission, that any partition either at the time of death of her father or thereafter had already taken place.

62. In her cross examination, before the trial court on 10.10.1994,(Annexure-16), Km. Priti Lata Mukherjee has mentioned that she had executed an agreement to sale in favour of sons of Ram Krishna Mishra for a total sale consideration of Rs. 2,00,000/- (two lakhs rupees) and received only Rs. 50,000/- (fifty thousand rupees) in advance. She further mentioned that she had executed a power of attorney in favour of Ram Krishna Mishra, but had not given right to sale. She further deposed that if it is mentioned in that power of attorney that right to sale has been given, then it is incorrect. She also admitted that when her brother used to fight with her, Tarul Sanyal, who was staying with the members of Pal family used to come to her rescue. This demonstrates that her saviour was Tarun Sanyal and not the plaintiffs.

63. Perusal of documents prima facie establishes the claim of the defendants that firstly, possession of the property in question was never handed over as is apparent from the agreement to sale in which it is clearly mentioned that it is without possession, secondly, this agreement to sale is contrary to the contention of the vendor namely, Km. Priti Lata Mukherjee that the total consideration was Rs. 2,00,000/- (two lakhs rupees) and she had received only Rs. 50,000/- (fifty thousand rupees) as advance. Contrary to this, in the agreement to sale, sale consideration is mentioned as Rs. 1,80,000/- (one lakh and eighty thousand rupees) and payment of sum of Rs. 80,000/- (eighty thousand rupees) has been shown in favour of the proposed vendor. This demonstrates that, plaintiffs obtained signatures of Km. Priti Lata Mukherjee on any document, using their dominant position of a lawyer and pseudo well wisher, casting bonafide doubt on all the transactions between the plaintiffs and Km. Priti Lata Mukherjee.

64. It is apparent that Km. Priti Lata categorically denied that she had given a power of attorney for the purposes of effecting the sale deed, but had not given power of attorney for other purposes, other than sale. It is also evident that it is mentioned in the power of attorney itself that it is revocable inasmuch as on page 3 of the power of attorney, it is categorically mentioned "yah mukhtyarnama kisi bhi samay cancel kiya ja sakta hai". Thus, letter of possession i.e., ''kabjanama' is an illegal document and it is not admissible in law inasmuch as just one day after execution of the agreement to sale, it was allegedly executed so to circumvent the stamp duty and moreover, it is apparent from the documentary evidence available on record that plaintiffs were never ever put in actual possession and such paper possession has no sanctity in the eyes of law.

65. It is apparent from record that suit for partition was filed by Shailendra Nath though opposed by Km. Priti Lata Mukherjee, but ultimately decree was passed granting only 1/3rd share in favour of Km. Priti Lata Mukherjee and Km. Priti Lata Mukherjee has apparently not challenged the judgment and decree dated 14.02.2002 nor the plaintiffs have challenged such judgment and decree though they were having power of attorney in their favour which was cancelled/revoked on 14.06.2003, therefore, even otherwise Km. Priti Lata Mukherjee could not have alienated half of the property contained in plot no. 210/145, Allenganj, Allahabad specifically when she was having only 1/3rd share.

66. It is also submitted that when there is an order of status quo by the Court of District Judge, then without getting the issue sorted out, plaintiffs are not entitled to any relief. Subsequently, Km. Priti Lata Mukherjee had executed a Will in favour of Meeta Bandyopadhyay dated 07.08.2007, then subsequent Will, will hold the field and not the earlier Will.

67. It is pointed out that ''kabjanama' dated 21.04.1997 is unregistered. It is a forged document. In support of his contention, it is pointed out that plaintiff could not have paid a sum of Rs. 80,000/- (eighty thousand rupees) alleged to be paid by them in cash without having income tax clearance. It is also submitted that the documents like Ration Card, Voter's List and Telephone Directory etc. are frivolous documents which plaintiffs got prepared by using their influence as a lawyer. It is also submitted that in the Will there is no mention of any love and affection and on the contrary, it is clearly mentioned in the said Will that till her lifetime, she will be complete owner of her own movable and immovable property. There is no mention in the Will of fact that possession was already handed over in favour of the plaintiffs. Though, according to the plaintiffs, they acquired possession on 25.06.1994.

68. Defendants have also placed reliance on the provisions contained in Section 230A of the Income Tax Act to point out that the value of the property is required to be more than two lakhs then when income tax clearance certificate is required. Secondly, there was no need for any ceiling clearance certificate as the property was less than 500 sq. yards and as per the Chapter 3 of Urban Land (Ceiling and Regulation) Act, 1976, properties measuring less than 500 sq. yards were not required to have any clearance certificate.

69. It is submitted that as per the law laid down by Supreme Court in case of Narendra Gopal Vidyarthi vs. Rajat Vidyarthi, 2010 (1) ARC 403, the Supreme Court has held that as per the provisions contained in Section 72, 82 and 84 of the Indian Succession Act, 1925, the testator's intention are to be ascertained from the words used and the surrounding circumstances.

70. In Para-33 it has been held as under:-

".................33. How a Will has to be interpreted is no longer res integra. Intention of the testator must be ascertained from the words used and the surrounding circumstances. The Court will put itself in the armchair of the testator.

In Navneet Lal vs. Gokul [(1976) 1 SCC 630] it has been held :

"8. From the earlier decisions of this Court the following principles, inter alia, are well established:

(1) In case of Ram Gopal vs. Nand Lal, AIR 1951 SC 139, it is held that in construing a document whether in English or in vernacular the fundamental rule is to ascertain the intention from the words used; the surrounding circumstances are to be considered; but that is only for the purpose of finding out the intended meaning of the words which have actually been employed.

(2) In construing the language of the will the court is entitled to put itself into the testator's armchair [Venkata Narasimha Appa Row vs. Parthasarathy Appa Row , (1913-14) 41 IA 51] and is bound to bear in mind also other matters than merely the words used. It must consider the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense... But all this is solely as an aid to arriving at a right construction of the will, and to ascertain the meaning of its language when used by that particular testator in that document. [Venkata Narasimha case and Gnambal Ammal vs. T. Raju Ayyar, AIR 1951 SC 103] (3) In case of Raj Bajrang Bahadur Singh vs. Thakurain Bakhtraj Kuer, AIR 1953 SC 7, it is held that the true intention of the testator has to be gathered not by attaching importance to isolated expressions but by reading the will as a whole with all its provisions and ignoring none of them as redundant or contradictory.

(4) In case of Pearey Lal v. Rameshwar Das, AIR 1963 SC 1703, it is held that the court must accept, if possible, such construction as would give to every expression some effect rather than that which would render any of the expressions inoperative. The court will look at the circumstances under which the testator makes his will, such as the state of his property, of his family and the like. Where apparently conflicting dispositions can be reconciled by giving full effect to every word used in a document, such a construction should be accepted instead of a construction which would have the effect of cutting down the clear meaning of the words used by the testator. Further, where one of the two reasonable constructions would lead to intestacy, that should be discarded in favour of a construction which does not create any such hiatus.

(5) In case of Ramachandra Shenoy vs. Hilda Brite, AIR 1964 SC 1323, it is held that it is one of the cardinal principles of construction of wills that to the extent that it is legally possible effect should be given to every disposition contained in the will unless the law prevents effect being given to it. Of course, if there are two repugnant provisions conferring successive interests, if the first interest created is valid the subsequent interest cannot take effect but a Court of construction will proceed to the farthest extent to avoid repugnancy, so that effect could be given as far as possible to every testamentary intention contained in the will."

71. Similarly, it is submitted that Will is to be proved by propounder in accordance with Section 68 even if its execution is not denied by anybody for reference judgment of Supreme Court in case of Ramesh Verma (D) through L.Rs. vs. Lajesh Saxena (D) by L.Rs. And Others as reported in AIR 2017 SC 494 has been cited to point out that in fact, both the witnesses to the Will are related to the plaintiffs.

72. One of the witness is Jagdish Pandey, who has admitted that he is related to the plaintiffs, plaintiff-Dinesh Chandra is his son-in-law, marriage was performed on 24.05.1997. Though it is mentioned by him in his cross examination that on 21.04.1997, he had no knowledge about Dinesh Chandra and he did not taken any help of Dinesh Chandra, but he has also admitted that his examination-in-chief affidavit was prepared by the counsel as per his instructions. There is no mention of the fact, as to on which date marriage of his daughter was fixed i.e., whether it was prior to 21.04.1997 or not.

73. In Para-5 of the examination-in-chief affidavit, he has mentioned that firstly he had signed the Will as a witness and thereafter, Om Prakash Tripathi had signed the Will as a witness at the instance of the testator. Whereas affidavit of one Sri Om Prakash s/o Maharani Deen Tiwari has been filed on record as another witness of the Will. In his cross-examination, he has admitted that in the affidavit, he has mentioned his name as Om Prakash. In the identity card enclosed i.e., the Aadhaar Card, his name is only metioned as Om Prakash and not as Om Prakash Tripathi. Thus there is issue of proving identity of another witnesses.

74. It is also apparent that the Will is to fortify the transaction of the agreement to sale for which purpose a power of attorney was also executed and in fact, Km. Priti Lata Mukherjee has nowhere mentioned in any of the documents before the courts below that she ever executed a Will in favour of the plaintiffs and when this aspect is read in the light of the law laid down in case of Narendra Gopal Vidyarthi (supra), it is apparent that the Will is a forged document and is not in terms of the provisions contained in Section 63 of the Indian Succession Act, 1925. It is also submitted that even in the written statement dated 5th day of February, 2005, which was filed by the plaintiffs in suit no. 774 of 2004 filed by Km. Priti Lata Mukherjee contesting the cancellation of agreement to sale, they never ever made a mention of the fact that any Will was executed in their favour which categorically proves the point beyond comprehension that the Will is a forged document and it cannot be acted upon. This is when clubbed with another fact that in fact Will should have been recovered from possession of Late Km. Priti Lata Mukherjee, but it was already in possession of the plaintiffs is a sufficient circumstance to draw a conclusion against the plaintiffs, that they got all the documents executed in furtherance of agreement to sell and the Will in question is not an independent transaction originating from free mind, out of love and affection.

75. Section 2(h) of the Indian Succession Act, 1925 (hereinafter referred to as "Act of 1925") defines "Will" means that legal declaration of the intention of a testator with respect to his property which he desires it to be carried into effect after his death. Essential characteristics of a Will are as follows:

(i) There must be a legal declaration.

(ii) A declaration must be with respect to the property of the testator.

(iii) A declaration must be to the effect that it is to operate after the death of the testator i.e., it should be revocable during the life of the testator.

76. If any of the three essential characteristics are lacking, the document is not a "Will".

77. When this Will is read with the so called 'Kabjanama' dated 25.06.1994, produced by the petitioner-plaintiff, there is no mention of such 'Kabjanama' in the Will, but it is mentioned that she has entered into a registered agreement to sale and when such agreement to sale came to the knowledge of her brother, then he lodged a case of partition and looking to the fact that the beneficiaries are from a decent and good family and help her in every manner and are available for her help, she is writing this Will in favour of the beneficiaries.

78. It is also mentioned in the Will that till her lifetime, she will be the owner of the property and after her lifetime, half of the property contained in house no. 210/145, Allenganj, Allahabad, shall bequeathed in favour of the three beneficiaries. It is also mentioned that this is her first and last Will and if any person produces any other Will after this Will, then that Will shall deemed to be forged. Thus, it is apparent that this Will is to be read with other documents like agreement to sale, power of attorney and kabjanama. Kabjanama demonstrates that property was already settled in favour of the petitioner but there is no mention of the fact that the Will is revocable and further in a sense became operative once possession was allegedly given to the petitioners, then as per the law laid down in case of Thakur Umrao Singh vs. Thakur Lachhman Singh as reported in (1911) 13 Bom. L.R. 404 and also in case of Parvathy vs. Rama Lakshmy as reported in AIR 1956 TR Coch 19, a document which is plainly intended to be operative immediately and to be final and irrevocable is a non-testamentary instrument.

79. In case of Namburi Basava Subrahamanyam vs. Alapati Hymavathi and Others as reported in AIR 1996 SC 2220, it has been held that nomenclature of a document is not conclusive. The recital in the document as a whole, and the intention of the executant and the acknowledgement thereof by the parties alone is material. The Court has to find whether the document confers any interest in the property i.e., 'presence', so as to take effect inter vivos and whether an irrevocable interest thereby created in favour of the petitioner under the document and whether the executant intended to transfer the interest in the property only on the demise of the settler. These could be gathered from the recitals in the document as a whole.

80. A perusal of the Will makes it abundantly clear that Will has been lacking in this aspect of transfer of the property after the lifetime of the settler because there is a clear mention of the fact that because of the injunction passed by the Court in case no. 715 of 1995, she is not able to execute the sale deed and therefore, she is writing the Will.

81. In fact reading of the Will reveals that it is a Contingent Will and was written with an intention to fulfill the obligations of the testator to be discharged in relation to the agreement to sale which could not be converted into a sale deed, due to contingency of filing of a case for partition by her brother and by virtue of there being an order of injunction.

82. In fact in the suit, which was filed by her brother, it has been decided that Km. Priti Lata Mukherjee has only 1/3rd share in the property as is apparent from the judgment dated 14.02.2002 rendered by Civil Judge (Junior Division), West Allahabad in Original Suit No. 231 of 1991 and 715 of 1994. There is also a mention of the fact that Priti Lata was injuncted from transfering any portion of the property namely, 210/145, Allenganj, Allahabad unless and until final decree is passed. Further a preferential right of purchase has been recognised by the learned trial court, in favour of the brother of Km. Priti Lata Mukherjee in terms of the provisions contained in the Transfer of Property Act, Will dated 21.04.1997 of Km. Priti Lata Mukherjee lost its sanctity being in violation of judicial pronouncement.

83. Thus, once a decree was passed and only 1/3rd share devolved on Priti Lata, upon partition, then Priti Lata was required to refurbish her Will and could have bequeathed only 1/3rd of the share in the southern part of the house no. 210/145, Allenganj, Allahabad.

84. No final judgment and decree has been produced on record. When chronology of events is examined in the light of the fact that power of attorney was given in favour of the father of the petitioner to give effect to agreement to sale was cancelled, case was filed for cancellation of the agreement to sale, then it is apparent that the Will was not made with free mind and thus, absence of a free mind will render the Will ineffective.

85. Another circumstance is that as per Section 61 of Act of 1925, the Will or any part of the Will, the making of which has been caused by fraud or coercion or by such ''importunity', as it takes away the free agency of a testator is void.

86. Importunity or undue influence can be inferred from the recitations of the Will. The expression used in this section is 'importunity takes away the free agency of the testator'. Undue influence means 'presence of whatever character if so exercised as to overpower the volition without convincing the judgment of the testator, though no force is either used or threatened'.[Hall vs. Hall, (1868) LR 1 P&D 481].

87. Undue influence is defined by Section 16 of Indian Contract Act, 1872, as "that relation which subsists between the parties, by which one of the party is in a position to dominate the Will of the other and uses that position to obtain an unfair advantage over that other."

88. In the present case at the cost of repetition, chronology of dates is important inasmuch as agreement to sale was executed on 24.06.1994, power of attorney on 24.06.1994, a suit bearing no. 715 of 1994 was filed by brother of Km. Priti Lata Mukherjee on 07.07.1994, on 03.09.1994 stay was granted by the Court, Will was registered on 21.04.1997, judgment was rendered on 14.02.2002 in the partition suit holding that Km. Priti Lata Mukherjee has only 1/3rd share and not 1/2 share as she claimed and there is mention of the fact that because of injunction, she is not able to execute the sale deed and therefore, ingredients of undue influence which forced her to write a Will can be read into the Will. Another mitigating circumstance is the possession of Will by the plaintiffs/beneficiary and not the testator, therefore, in terms of Section 61, importunity or undue influence taking away the free agency of the testator is evident rendering the Will to be void.

89. In Boyce vs. Ross Borough, (1857) 6 HLC 2 : De Souza vs. De Souza, AIR 1956 MB 246, Lord Cranworth says that, "influence in order to be undue within the meaning of any rule of law which would make it sufficient to vitiate a will, must be an influence exercised either by coercion or fraud ...it is not necessary to establish that actual violence has been used or even threatened. It is extremely difficult to state in the abstract what acts will constitute undue influence. It is sufficient to say, they must range themselves under one or other of these heads- coercion or fraud. To be undue influence in the eyes of law, there must be- to sum up in one word -'coercion'."

90. In this regard, law laid down by Hon'ble Supreme Court in case of Indu Bala Bose vs. Mahendra Chandra Bose, AIR 1982 SC 133 is relevant as "the Supreme Court has enunciated principles to be kept in view, while granting probate. Ordinarily, proving a Will does not differ from any other document except to special requirement of attestation under Section 63 of the Succession Act. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where, however, there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court before the court accepts the will as genuine. Even where circumstances give rise to doubts, it is for the probator to satisfy the conscience of the court by completely removing all legitimate suspicion. The suspicious circumstances may be as to the genuineness of the signatures of the testator, the condition of the testator's mind, the disposition made in the will being unnatural, improper or unfair in the light of relevant circumstances, or there might be other indications in the will to show that the testator's mind was not free. If the probator himself takes a predominant part in the execution of the will which confers a substantial benefit on him that is also a circumstance to be taken into account. If the probator succeeds in removing the suspicious circumstances, the court would grant probate even if the will might be unnatural and might have cut off wholly or in part near relations. Any and every circumstance is not a ''suspicious' circumstance and would be ''suspicious' when it is not normal or is not normally expected in a normal situation or is not expected of a normal person."

91. Section 74 of Act of 1925, provides that it is not necessary that any technical words or term of art be used in a Will, but only that wording is such that the intention of the testator can be known therefrom. In this regard, intention of the testator can be gathered by applying the ''Armchair Rule'. It is held in case of Lalta Baksh Singh vs. Phool Chand, AIR 1945 PC 113, that "the primary duty of the Court is to endeavour to ascertain the intention of the testator from the will itself by reading it as a whole, without indulging in any conjecture or speculation on what the testator would have done if he had been better informed or better advised and from the language used by him, and on doing so the court is entitled and bound to bear in mind other matters than merely the words used in the will."

92. When facts of this case and evidence on record is examined in the light of ''Armchair Rule', then also it is apparent that the Will is not a free manifestation of bequeathing the property on the petitioners, but is an extension of the agreement to sale. In fact, Section 75 of Act of 1925 provides that "for the purpose of determining questions as to what person or what property is denoted by any words used in a Will a court shall inquire into every material fact relating to the persons who claim to be interested under such Will, the property which is claimed as the subject of disposition, the circumstances of the testator and of his family, and into every fact a knowledge of which may conduce to the right application of the words which the testator has used.

The best way of construing a will is to read the will as a whole and form an opinion on its import and then see whether the intention could be sustained in the light of the general principles laid down in case of Rajinder Singh Chowdhry vs. Manjit Singh Chowdhry as reported in AIR 2001 Del 15 (FB). The use of extrinsic evidence is exceptional to meet the following situations:

(a) where the surrounding circumstance are taken into account under the "armchair principle";

(b) where from the words which the testator has used, the will is ambiguous on its face;

(c) where the words which the testator has used are ambiguous in view of the surrounding circumstances;

(d) where any part of the will is meaningless; and

(e) to rebut presumptions which equity raises. [Mellows, The Law of Succession, 1993, Butterworths, pp. 142-143.]"

93. In case of Navneet Lal Rangi vs. Gokul and others, AIR 1976 SC 794, the Supreme Court has considered the entire law on the provision of the Will and has laid down the following principles:-

"(i) In construing a document whether in English or in vernacular the fundamental rule is to ascertain the intention from the words used. The surrounding circumstances are to be considered; but that is only for the purpose of finding out the intended meaning of the words which have actually been employed.

(ii) In construing the language of the will, the court is entitled to put itself into the testator's armchair and is bound to bear in mind also other matters than merely the words used. It must consider the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense. But all this is solely as an aid to arriving at a right construction of the will, and to ascertain the meaning of its language when used by that particular testator in that document.

(iii) The true intention of the testator has to be gathered not by attaching importance to isolated expressions but by reading the will as a whole with all its provisions and ignoring none of them as redundant or contradictory

(iv) The court must accept, if possible, such construction as would give to every expression some effect rather than that which would render any of the expressions inoperative. The court will look at the circumstances under which the testator makes his will, such as the state of his property, the family and the like. Where apparently conflicting dispositions can be reconciled by giving full effect to every word used in a document, such a construction should be accepted instead of a construction which would have the effect of cutting down the clear meaning of the words used by the testator. Further, where one of the reasonable constructions would lead to intestacy, that should be discarded in favour of a construction which does not create any such hiatus.

(v) It is one of the cardinal principles of construction of wills that to the extent that it is legally possible, effect should be given to every disposition contained in the will unless the law prevents effect being given to it. Of course, if there are two repugnant provisions of successive interests, if the first interest created is valid, the subsequent interest cannot take effect but a Court of construction will proceed to the farthest extent to avoid repugnancy, so that effect could be given as far as possible to every testamentary intention contained in the will."

94. The above principles is reiterated in case of Gopala Menon vs. Shivaraman Nair, AIR 1979 SC 1345 and then in case of Uma Devi Nambiar vs. T.C. Sidhan, (2004) 2 SCC 321.

95. Another facet is that there is no mention of bequeathing the property on account of love and affection. Thus, it is evident that when the Will is read as a whole then the Will is full of material consideration and consideration is the agreement to sale. This agreement to sale is admittedly a subject matter of challenge in a suit filed by Late Priti Lata Mukherjee which has been registered as Civil Suit No. 774 of 2004 before the Court of Civil Judge (Junior Division), West Allahabad in which there is a specific mention of a fact that such agreement to sale was obtained through fraud and coercion and there was no requirement of any kind of money for the petitioner as it is evident from the evidence of the defendants and copy of the passbook of her bank account along with copy of pension pay order showing that she was drawing a pension. This abundantly makes it clear that the consideration which has been mentioned in the Will for writing the Will has been itself challenged by the author of the Will by filing a Civil Suit bearing no. 774 of 2004. Thus, applying the, ''Armchair Rule', it cannot be said that Will is free from blemishes and the indulgence of the beneficiaries coupled with the fact that even witnesses to the Will are all either related to the plaintiffs or are belonging to the same profession, the authenticity of the Will cannot be said to be beyond doubt and its authentication also creates doubt about the presence of the free Will at the time of the execution of the Will.

96. When all the above facts are co-related, then it is apparent that the Will is not free from blemishes and it cannot be said to be free Will of the author namely, Km. Priti Lata Mukherjee inasmuch as it is not a declaration in respect of the property of the testator and it also lacks the element of revocability during the lifetime of the testator. Thus, applying ''Armchair Rule', and the law on the subject especially, the law laid down in case of Navneet Lal Rangi vs. Gokul and others (supra), I am of the opinion that plaintiffs are not entitled to ''Letter of Administration' in respect of the Will in question as the evidence on record is hazy and totality of the facts and circumstances do show that Km. Priti Lata Mukherjee had either no idea of the contents of the Will and she was under undue influence pressure, coercion of the present plaintiffs to execute a Will as the present plaintiffs were clearly taking advantage of their dominant position in a situation where Km. Priti Lata Mukherjee was under mental stress due to lack of cordiality and abutting dispute with her brother, Shailendra Nath Mukherjee.

97. As far as reliance of the plaintiff on the judgment of Delhi High Court in case of Hardip Kaur (supra) is concerned, i.e distinguishable on two counts, inasmuch as, admittedly in the present case entire payment of sale consideration has not been made rather on the contrary, there is evidence that even sum of Rs.80,000/-(eighty thousand only) was returned by the testator and secondly, the power of attorney on which reliance has been placed (Annexure-9), to the suit is not a irrevocable power of attorney, but is a revocable one, inasmuch as, on internal page-3 of the said power of attorney, it is clearly mentioned that this power of attorney can be cancelled at any point of time.

98. Even Section 202 of the Contract Act has limited application to the facts of the present case and on this ground also, the decision of Delhi High Court is distinguishable. In the present case, the power of attorney was given to obtain permission from the competent authority of Urban Ceiling, Allahabad so also from the Income Tax Department and, thereafter, for executing the sale deed. In this very power of attorney, it is mentioned that it can be cancelled at any point of time and in fact admittedly this power of attorney was revoked by the author namely, Km. Priti Lata Mukherjee by giving notice dated 14.06.2003, Annexure-25. This was followed by filing of a suit for cancellation of agreement to sale, and these facts have not been disputed by the plaintiffs in the present suit. There is no material available on record nor, it has been argued that Ram Krishna Mishra ever disputed the cancellation of the power of attorney and the dispute was only raised in regard to suit filed by Km. Priti Lata Mukherjee for cancellation of the agreement to sale.

99. In view of such facts, since power of attorney has been cancelled and admittedly the agency was not made irrevocable, provisions of Section 202 of the Contract Act will not be applicable, and, therefore the ratio of the law laid down in case of Hardip Kaur (supra) has no application to the facts of the present case.

100. In fact, in case of State of Rajasthan and others Vs. Basant Nahata as reported in 2005 (12) SCC 77, it has been held that the power of attorney is creation of an agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of the grantor, which when executed will be binding on the grantor as if done by him. It is revocable or terminable at any time, unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee.

101. Section 203 of the Contract Act authorizes the principles to revoke the authority given to his agent at any time before the authority has been exercised so as to bind the principles.

102. In the present case, since authority was revoked before it could be acted upon, coupled with the fact that the power of attorney in question is not an irrevocable one, then no benefit can be extended in favour of the plaintiff in the light of the law laid down in case of Hardip Kaur (supra).

103. As far as law laid down by Madras High Court in case of G. Ganeshan and others (supra) is concerned, this Court is not expressing any opinion on the issues dealt therein because for the present, we are examining the validity of the Will dated 21.04.1997 on the basis of which, plaintiffs are claiming their rights. Plaintiffs are not entitled to take advantage of any weakness of the opposite party. Therefore, for the present, this judgment of Madras High Court has no or little relevance to the facts of the present case.

104. Law laid down by Allahabad High Court in case of Late Smt. Dukhiya (supra) is rather against the plaintiffs, inasmuch as, similar to that case, there is no evidence to show that propounders have stated anything about the care and affection which they had given to the author of the Will and in fact, the transaction of Will was not in terms of love and affection, but to meet the ends of execution of agreement to sale and thus, does not fulfill the requirements of a valid Will.

105. Reliance placed on the judgment of Calcutta High Court in case of Smt. Usharani Roy (supra) is also misplaced, inasmuch as, i.e. the judgment on the issue of validity of a subsequent Will and the rights of the Caveator. In fact, it has been held that the Caveator may not be interested in obtaining the Probate of the second Will, is, in our opinion, really immaterial. A Will may be revoked in various ways as laid down in Section 70 of the Indian Succession Act, 1925.

106. As discussed above, plaintiffs are required to show their own rights flowing out of the Will, rather than banking on the strength or weaknesses of other party. The judgment of Supreme Court in case of Hem Nolini Judah (supra) is also in relation to the fact that unless Probate or Letter of Administration of Will is obtained, no right can be established. There is no dispute with this legal position, but the fact is that plaintiffs are required to establish their own case for grant of Letter of Administration. Even the judgment of Madhya Pradesh High Court in case of Ram Shankar (supra) is to the same effect that caveator/defendant cannot take advantage of the rights flowing out of a Will, if it is not probated.

107. In fact, the ratio of law is that a person who is in possession of the property on the basis of a Will executed in his favour, cannot be ousted, unless it is proved that the Will, on the basis of which a person in actual possession is claiming rights is not the last Will of the deceased/testator.

108. In the present case, admittedly, plaintiffs are not in possession, though they have tried to make a case to demonstrate as if they are in possession of the suit property and secondly admittedly the caveator is in possession, which can be gathered from the fact that Priti Lata Mukharjee in her suit registered as suit no.774 of 2004 has categorically mentioned about her possession over the suit property. This fact is corroborated from other documents like affidavit of Km. Priti Lata Mukherjee in Original Suit No. 715 of 1994, her testimony in Original Suit No. 231 of 1991, coupled with the fact that Km. Priti Lata Mukherjee sought cancellation of the agreement to sale on the strength of it being obtained on the basis of mis-representation, fraud, boloney etc. In this very suit, it is mentioned that no sale consideration was transferred in favour of the author of the Will and on the contrary she had paid a sum of Rs.75,000/-(seventy five thousand only) to the defendants for their need through her bank account which has not been repaid to her. Thus having failed to prove their possession, provisions of Section 53-A of the Transfer of Property Act will not be applicable.

109. The judgment of Supreme Court in case of H.V. Nirmala and another (supra) is distinguishable on the facts. Supreme Court has given several reasons which are 10 in number to show that author of the Will in that case had executed the Will in favour of his minor daughters, minor son born from first wife. It was a natural bequeath out of love and affection. There was no question of the beneficiaries being active players having any role in the execution of the Will in their favour, but these circumstances are missing in the present case. Neither the plaintiffs could establish any relationship of love and affection, nor they could establish that they had no role to play in execution of various documents starting from agreement to sale to the Will in question. These suspicious circumstances as have been discussed above distinguishes the case of the plaintiff from the facts of the case of H.V. Nirmala and another (supra) before the Supreme Court.

110. Thus, Will of Km. Priti Lata Mukherjee dated 21.04.1997 cannot be said to be a testamentary statement of author made without any coercion, importunity and undue influence, with open mind. Thus on the basis of above discussion and due appreciation of material placed on record, this Court is of the opinion that plaintiffs have failed to make out a case for grant of ''Letter of Administration'.

111. Suit fails and is dismissed.

112. Parties to bear their own cost.

113. A decree be drawn in above terms.

Order Date : 15.10.2020.

S.K.S. /Vikram In Chamber Case :- TESTAMENTARY SUITS No. - 6 of 2012 Plaintiff :- In The Matter Of The Goods Of Late Km. Priti Lata Mukherjee Defendant :- Shailendra Nath Mukherjee And Others Counsel for Plaintiff :- Dinesh Chandra Mishra,Dinesh Chandra Mishra (In Person),In Person,R.P. Mishra Counsel for Defendant :- Rajesh Gupta, Administrator-General, Anoop Banerjee, Anoop Baranwal, Dinesh Chandra Mishra,J.Nagar,NarendraMohan, Ramesh Prasad Mishra Hon'ble Vivek Agarwal, J None for the plaintiffs, none for other defendants and Sri Narendra Mohan for the caveator is present.

Judgement pronounced in chamber.

Order Date : 15.10.2020 S.K.S. /Vikram

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