Calcutta High Court
For The vs Hardyal Singh Dhillon And Others ... on 30 August, 2023
IN THE HIGH COURT AT CALCUTTA
(Testamentary & Intestate Jurisdiction)
ORIGINAL SIDE
Present:
The Hon'ble Justice Krishna Rao
IA GA 4 of 2023
PLA 9 of 2010
In The Goods Of :
Binapani Das (Dec.)
Mr. Mukundalal Sarkar
Mr. Dipankar Mondal
.....For the applicant.
Mr. Debasish Chattopadhyay
Mr. Loknath Paul
Mr. Tirthankar Basu
.....For the executor of the last Will.
Hearing Concluded On : 16.08.2023
Judgment on : 30.08.2023
Krishna Rao, J.: -
1. The petitioner has filed the instant application being G.A. No. 4 of
2023 praying for revocation of probate granted by this Court on 4th
October, 2016 with respect to the Will executed by the deceased
Binapani Das dated 24th December, 2001.
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2. The petitioner submitted that by way of an agreement dated 17th
November, 1994, the deceased Binapani Das had executed an
agreement with respect of Plot No. B/5-31, measuring about 11
cottahs, 14 chittacks for a total consideration amount of Rs.
4,10,000/- in favour of the petitioner. The petitioner further contented
that the deceased had also executed a Power of Attorney with respect
of the said land in favour of the petitioner on 17th November, 1994.
The petitioner further contended that after execution of the agreement
and Power of Attorney, the possession of the property was also handed
over to the petitioner.
3. On 3rd August, 2002, the said Binapani Das had passed away. On 21st
June, 2011, the office of the Estate Manager, Kalyani had issued an
order contending that the physical possession of the plot no. B-
5/31(CA) is hereby re-entered by the Urban Development Department.
Being aggrieved with the order, the petitioner had filed a Writ Petition
being W.P. No. 18322 (w) of 2011 against the State authorities. In the
said writ application, the executor has pleaded for impleading him as
a party respondent and he was added as party to the said writ
application. In the said application, the executor has disclosed that the said plot of land has been transferred in favour of the executor in terms of the alleged Will and the probate was granted by this Court.
4. Mr. Mukund Lal Sarkar, learned Advocate representing the petitioner submits that the petitioner first time came to know about the alleged Will and the probate granted by the Court on 26th August, 2022. He 3 submits that the executor has obtained probate of the alleged Will by suppressing the fact of the agreement and the Power of Attorney executed by the deceased in favour of the petitioner. He submits that the executor has suppressed the fact that the petitioner has got the caveatable interest over the property and the executor has not made the petitioner as party to the probate application and no notice was issued to the petitioner.
5. Mr. Sarkar submits that without issuance of notice of the probate case and without giving an opportunity to the petitioner, the executor has obtained probate of the alleged Will behind the back of the petitioner.
6. Mr. Debasish Chattopadhyay, learned Advocate representing the executor submitted that pursuant to an advertisement sometimes in the year 1968-69, a plot of land measuring an area of 11 Cottah, 14 Chittack being B-5/31 (C.A.), Kalyani, under a long term lease for 999 years was allotted in favour of the deceased Binapani Das by the Metropolitan and Development Authority of West Bengal subject to payment of premiums and also subject to certain terms and conditions. He submits that after acceptance of the offer of the deceased Binapani Das an agreement for lease was executed on 9th March, 1969 and upon payment of requisite fee, the physical possession of the said plot was handed over to the deceased. He submits that the deceased could not utilize the said plot by raising construction in terms of the lease agreement, as no lease deed was 4 executed by the State Government inspite of several requests made by the deceased Binapani Das.
7. Mr. Chattopadhyay submitted that the deceased during her life time had executed her last Will and testament on 24th December, 2001, by appointing the petitioner as sole executor of her last Will and testament with respect of the said plot. After the death of Binapani Das, the executor has applied for grant of probate before this Court being PLA No. 9 of 2010 and the notice of the probate proceeding was duly served upon all the legal heirs of the deceased and on receipt of the notice all the legal heirs of the deceased have submitted their affidavit with No Objection for grant of probate to the executor as per the last Will and testament. He submits that the petitioner has proved the last Will through the attesting witnesses of the said Will and accordingly this Court has granted probate of the Will to the petitioner.
8. Mr. Chattopadhyay submitted that during the pendency of the probate proceedings, the Estate Manager, Kalyani has issued notice of resumption of the plot and forfeiture of the fee paid with respect of the said plot. The legal heirs of the deceased have challenged the notice of resumption by filing a writ application being WP No. 16208 of 2011 when the executor came to know that the petitioner has also filed another Writ petition challenging the notice of resumption, the executor has filed applications in both the writ applications to be 5 added as party and accordingly the executor was added as party in both the writ applications.
9. Mr. Chattopadhyay submitted that both writ applications were taken up for hearing together and on 9th August, 2023, the Hon'ble High Court had allowed the writ application filed by the legal heirs of the deceased by directing the Estate Manager, Urban Development Department, Kalyani, Nadia to fix a date for execution of lease deed and to communicate the same to the petitioners within 30 days from the date of communication of the order and the impugned order dated 21st June, 2011 is quashed. The writ petition filed by the petitioner herein is dismissed.
10. Mr. Chattopadhyay submitted that the executor has obtained probate from this Court by complying all the provisions and the petitioner is not having any caveatable interest over the property.
11. The petitioner is claiming his caveatable interest over the property in terms of the agreement and Power of Attorney dated 17th November, 1994 executed by the deceased in favour of the petitioner. On 9th March, 1969, an agreement for lease was executed with respect of Plot No. B-5/31 (CA) Kalyani, Nadia by and between the State Government and Binapani Das. Till the death of Binapani Das, the State authorities have not taken any steps to execute lease deed as per agreement dated 9th March, 1969. After the death of Binapani Das, the legal heirs have submitted their request to the State authorities for 6 mutating their names in respect of the said plot but the State authorities have not taken any steps. By a letter dated 21st June 2011, the Estate Manager, Kalyani has terminated the agreement dated 9th March 1969.
12. It is found from the record that from 17th November, 1994 till the date of order of termination of the agreement dated 9th March, 1969, the petitioner has not taken any steps for specific performance of the agreement. The petitioner has challenged the order of termination dated 21st June, 2011 by way of writ application but the writ application filed by the petitioner was dismissed on 9th August, 2023. While dismissing the writ petition, the Hon'ble Writ Court in connection with the case of the petitioner held that if any rights in personam are violated, the aggrieved party has the remedy in the Civil Court.
13. The petitioner has filed the present application for revocation of the probate granted by this Court. The petitioner is claiming the property in terms of the agreement and the Power of Attorney. As per the case of the petitioner the petitioner is having, caveatable interest over the property in terms of agreement and power of attorney.
14. Let me consider what is meant by the term "Caveatable interest". It is not defined under the Act. I, therefore, notice the dictionary meaning of both the terms "caveat" and interest".
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Legal Thesaurus Regular Edition by William C. Burton defines "interest" as under :
Interest (Ownership), noun Assets, belongings, claim, dominion, droid, holding lawful possession, part participation, percentage of ownership, portion, possession, property, proprietorship, right, right of ownership, rightful possession, seisin, share, stake ,title.
Associated Concept:
accounts bearing interest, assignable interest, beneficial interest, common interest, contingent interest, continuity of interest, controlling interest, future interest, interest in hand, joint interest, legal interest, legal rate of interest, life interest, person interested in a will, property interest, qualified interest, reminder interest, remaining interest, transit of interest, undivided interest.
Caveat : Caveat has been defined in Random House Webster's Dictionary of the Law as under :
Caveat :
1. A warning or caution; admonition.
2. In certain legal context, a formal notice of interest in a matter of property; for example, a notice to a court or public officer to suspend a certain proceeding until the notifies is given a hearing; a caveat filed against the probate of a will.
15. It is settled law that while granting a probate, the court would not decide any dispute with regard to title. A separate suit would be maintainable therefore. In the case of Kanwarjit Singh Dhillon vs. Hardyal Singh Dhillon and Others reported in (2007) 11 SCC 357, 8 the Court held that Probate Court does not decide any question of title or the existence of the property itself.
16. It is also settled law that a testator might have entered into an agreement of sale entitling the vendee to file a suit for specific performance of contract. On the basis thereof, however, a caveatable interest is not created, as such an agreement would be binding both the executor, if probate is granted, and on heirs and legal representatives of the deceased, if the same is refused.
17. The petitioner has relied upon the judgment reported in (2008) 10 SCC 489 (G. Gpal vs. C. Baskar and Others), 2023 (242) AIC 31 (P. Seshareddy -vs- State of Karnataka) and AIR 2020 Cal 285 (In Re:
Kiran Wadan Bhagat and Ors). It is well settled law that if a person who has even a slight interest in the estate of the testator is entitled to file caveat and to contest the grant of probate of the will of the testator. But the facts and circumstances of the present case is distinguishable from the case referred by the petitioner.
18. In the present case, the petitioner is claiming his caveatable interest as per the agreement and power of attorney and thus no caveatable interest is created.
19. In view of the above, G.A. No. 4 of 2023 is thus dismissed.
(Krishna Rao, J.)