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The complainants husband did not take physical possession of the subject flat since additional work was directed to be done. Complainants husband executed a will in London on 20/08/08 giving his estates to his son and daughter.

Probate was granted by the Court in England on 30/07/10. On 20/02/10 Ms. Isabelle Cauvaus Froufe, the mother as well as the constituted attorney of Louis Amar De and Anita De cancelled the agreement for sale dated 23/05/08 and received back the consideration money of Rs.15 lakh from the developer, the respondent no.4. The developer has already sold out the subject flat to another purchaser with the full knowledge of the legal heirs of Late Aninda Kumar De.

 

The Learned Counsel for the complainant has submitted that Late Aninda Kumar De divorced his first wife in 1990 and thereafter he married the complainant, but no issue was born out of the said wedlock. The husband of the complainant entered into an agreement with the OPs for the purchase of a flat at a consideration of Rs.16,49,500/- and the sum of Rs.16 lakh was paid. It is contended that the possession was delivered on 03/08/08, but due to the illness of the husband they had to stay in the residence of her sister. It is submitted that after the death of the husband of the complainant on 01/09/09 the complainant asked the OPs to execute and register the deed of conveyance. It is contended that on 28/03/10 the complainant found that the flat was under the lock and key of some other person and the OP No.4 told that he had handed over the key to the first wife of Late Aninda Kumar De. It is submitted that although the probate was granted by foreign Court the question of title was not decided in such a proceeding. It is contended that the first wife of the complainants husband cancelled the agreement and received back the amount of consideration money before the granting of probate. It is contended that the complainant was always ready and willing to pay the balance amount of consideration money, but the OPs declined to perform their part of contract.

 

The Learned Counsel for the OPs, on the other hand has submitted that the possession was not handed over as the construction was not complete and additional works were to be done. It is submitted that the first wife of the complainant came to the OPs and produced the will executed by the husband of the complainant and that the consideration money was refunded to her under proper signature and endorsement to that effect. It is contended that probate was granted by competent Court and under such circumstances, the complainant has no right to file this complaint. It is submitted that the complainant suppressed the material facts in the complaint about the first wife, son and daughter of Late Aninda Kumar De. It is contended that there is no deficiency in service on the part of the OPs. The Learned Counsel for the OPs has referred to the decision reported in 2012 (3) CLJ (Cal) 291 [Smt. Rita Das Vs. M/s Jayashri Ghosh & Ors.].

Question no.18 was put to the complainant and the answer was given as follows:
Smt. Dey why did you not produce the judgment and decree for divorce is granted in Mat. Suit No.856 of 2008, in the court of District Judge at Alipore? Since I did not file the same, I did not think it proper.
 
Admittedly, the will was executed by Late Aninda Kumar De and the probate was granted in favour of the first wife Ms. Isabelle Cauvaus Froufe. The first wife also received back the refund of the consideration money on 20/02/10. Will was made on 20/08/08 and the probate was granted on 30/07/10. It is the contention of the Learned Counsel for the complainant that the consideration money was refunded to the first wife before the granting of probate. But the fact remains that probate was granted to the first wife of Late Aninda Kumar De. After the granting of probate, we are of the considered view that the complainant has no right to file this complaint claiming herself to be the consumer. Since the complainant is not a consumer, no relief can be granted in this case.