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Mr. Ranjit Kumar, learned senior counsel for defendants no.15 to 20 adopted the arguments advanced on behalf of defendant no.14 and submitted that under section 211 of Indian Succession Act, 1925, the estate of the deceased testator vests in the executor from the date the will becomes enforceable, i.e. from the date of death of the testator. Learned counsel submitted that the act of disposition performed by the executor is binding on the estate of the deceased under Section 307 as long as the said disposition is compatible with the administration of the estate. It was submitted that in the present case, Bhabesh had applied for revocation on the ground that the probate was obtained fraudulently, however, the Probate Court had rejected that application. It was submitted that defendant no.14 had completed the sale only after the probate and after going through it and therefore defendant no.14 was a bona fide purchaser and since defendants no.15 to 20 had derived title from defendant no.14, the said defendants no.15 to 20 were protected. In the circumstances, learned counsel submitted that revocation of grant will operate prospectively and such revocation will not annul the intermediate act of disposition by defendant no.2.

Section 211 falls in Part VIII which deals with representative title to the property of the deceased on succession. Section 211(1) declares that the executor or the administrator, as the case may be, of a deceased person is his legal representative for all purposes and that all the property of the deceased vests in him, as such. Under section 212, it is inter alia provided that no right to any property of a person who has died intestate can be established in any Court, unless letters of administration are granted by a probate Court. Under section 213, no right as an executor or a legatee can be established in any Court, unless probate of the will is granted, by the Probate Court, under which the right is claimed. Similarly, no right as executor or legatee can be established in any Court unless the competent Court grants letters of administration with the will annexed thereto. Sections 211, 212 and 213 brings out a dichotomy between an executor and an administrator. They indicate that the property shall vest in the executor by virtue of the will whereas the property will vest in the administrator by virtue of the grant of the letters of administration by the Court. These sections indicate that an executor is the creature of the will whereas an administrator derives all his rights from the grant of letters of administration by the Court. Section 214 states inter alia that no debt owing to a deceased testator can be recovered through the Court except by the holder of probate or letters of administration or succession certificate. Section 216 inter alia lays down that after any grant of probate or letters of administration, no person other than such grantee shall have power to sue or otherwise act as a representative of the deceased, until such probate or letters of administration is recalled or revoked. Part IX of the Act deals with probate, letters of administration and administration of assets of deceased. Under section 218(1), if the deceased is a Hindu, having died intestate, administration of his estate may be granted to any person who, according to the rules for the distribution of the estate applicable to such deceased, would be entitled to. Under section 218(2), when several such persons apply for letters of administration, it shall be in the discretion of the Court to grant letters of administration to any one or more of such persons. Section 220 refers to effect of letters of administration. It inter alia states that letters of administration entitles the administrator to all rights belonging to the intestate. Section 221 inter alia states that letters of administration shall not render valid any intermediate acts of the administrator which acts diminish or damage the estate of the intestate. Sections 218, 219, 220 and 221 are relevant in the present case as they indicate that nothing prevented the intestate heirs of Balai Chand to apply for letters of administration, particularly when they alleged that Balai Chand died without making a will. Moreover, section 221 indicates that intermediate acts of the administrator which damage or diminish the estate are not validated. This section brings out the difference between letters of administration and probate. Section 221 expressly states that certain intermediate acts of the administrator are not protected as the authority of the administrator flows from the grant by the competent court unlike vesting of the property in the executor under the will (see: section 211). Section 222 states that probate shall be granted only to an executor appointed by the will. Section 227 deals with effect of probate. It lays down that probate of a will when granted establishes the will from the date of the death of the testator and renders valid all intermediate acts of the executor. Section 227 is, therefore, different from section 221. As stated above, in the case of letters of administration, intermediate acts of the grantee are not protected whereas in the case of probate, all such acts are treated as valid. Further, section 227 states that a probate proves the will right from the date of the death of the testator and consequently all intermediate acts are rendered valid. It indicates that probate operates prospectively. It protects all intermediate acts of the executor as long as they are compatible with the administration of the estate. Therefore, section 221 read with section 227 brings out the distinction between the executor and holder of letters of administration; that the executor is a creature of the will; that he derives his authority from the will whereas the administrator derives his authority only from the date of the grant in his favour by the Court. Section 235 inter alia states that letters of administration with the will annexed shall not be granted to any legatee, other than universal or residuary legatee, until a citation has been issued and published calling on the next-of-kin to accept or refuse letters of administration. Such provision is not there in respect of grant of probate. In the circumstances, the judgment in the case of Debendra Nath Dutt & another v. Administrator-General of Bengal reported in [ILR (1906) 33 Calcutta 713] will not apply to the present case.

Chapter III of Part IX deals with revocation of grants. Under section 263, the grant of probate or letters of administration may be revoked if the proceedings to obtain the grant were defective in substance; or the grant being obtained fraudulently by making a false suggestion or by suppressing from the Court something material to the case or if the grant was obtained by means of untrue allegation or if the grantee has wilfully and without reasonable cause omitted to exhibit an inventory or account in accordance with the provisions of Chapter VII of part IX. Before us, it has been vehemently urged on behalf of the plaintiffs that the revocation of the grant of probate will make all intermediate acts ab initio void. Under section 263, as stated above, grant of probate or letters of administration is liable to be revoked on any of five grounds mentioned therein. One of the grounds as stated above is failure on the part of the grantee to exhibit/file an inventory or statement of account. Similarly, the probate or letter or administration is liable to be revoked if the grant is obtained fraudulently. Can it be said that revocation of the probate on the ground of non-exhibiting an inventory or statement of account will make the grant ab initio void so as to obliterate all intermediate acts of the executor? If it is not ab initio void in the case of non-filing of inventory or statement of account then equally it cannot be ab initio void in the case of a grant obtained fraudulently. In other words, what applies to clause (e) of the explanation equally applies to clause (b) of the explanation. At this stage, we clarify that if the intermediate act of the executor is not for the purpose of administration of the estate or if the act is performed in breach of trust then such act(s) is not protected. However, acts which are in consonance with the testator's intention and which are compatible with the administration of the estate are protected. Therefore, on reading sections 211, 227 along with section 263, it is clear that revocation of the grant shall operate prospectively and such revocation shall not invalidate the bona fide intermediate acts performed by the grantee during the pendency of the probate.

As stated above, it is submitted on behalf of the plaintiffs that probate dated 31.7.1981 was void as the will of Balai Chand was not proved in accordance with section 63 of Indian Succession Act read with section 68 of the Indian Evidence Act. Learned counsel for the plaintiffs further submitted that on revocation of the probate the grant becomes void ab initio and would obliterate all previous dealings by the executor performed during the continuance of the probate.

We do not find merit in the above arguments. As stated above, section 273 refers to conclusiveness of the probate as to the representative title. It establishes the factum of the will and the legal character of the executor and all the property of the deceased testator from the date of the death of the testator, as long as the grant stands. Under section 41 of the Evidence Act, the grant operates as judgment in rem and can be set aside on the ground of fraud or collusion provided it is pleaded and proved by the party so alleging. [See: Lady Dinbai Dinshaw Petit & others v. The Dominion of India & another reported in AIR 1951 Bombay 72]. It is, therefore, not a pure question of law. As stated above, revocation will not operate retrospectively so as to obliterate all intermediate acts of the executor performed during the existence of the probate, however, if the intermediate acts are incompatible with the administration of the estate, they will not be protected. That the conclusiveness under section 273 is of validity and contents of the will.