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On behalf of defendant no.14, one of its partners DW5 deposed that defendant no.14 had paid substantial amounts under Ex.A/1 and Ex.A/2. That initial amount of Rs.1,25,000/- was paid by cheque drawn in favour of Balai Chand (Ex.A3). That prior to Ex.A/8, the developer had instituted suit no.310 of 1981 for specific performance of Ex.A/1 and Ex.A/2 which suit was decreed on 3.8.1981, pursuant to which Ex.A/8 was executed on 4.8.1981 by defendant no.2 as the sole executor under the will of Balai Chand, which will was probated on 31.7.1981. He further deposed that defendant no.14 got possession of the suit premises after Ex.A/8. That before executing Ex.A/8, defendant no.14 had carried out the search of the title deeds and documents including the probate. That defendant no.14 was a bona fide purchaser. DW5 has deposed that he did not recollect the date on which the document Ex.A/8 was submitted before the Collector for affixing the adhesive stamp. DW5 has denied that Ex.A/8 was prepared before the delivery of the judgment in the suit no.310/81. DW5 has deposed that defendant no.14 was aware of the probate case at the time when defendant no.14 alienated the suit premises in favour of defendants no.15 to 20. That defendant no.14 did not inform defendants no.15 to 20 regarding the pendency of the probate case as at the time of alienations in favour of defendants no.15 to 20, there was no probate case pending. DW5 has stated that Ex.A/8 was executed by defendant no.2 as sole executor of the will and as constituted attorney of Balai Chand. After seeing the document, DW5 has deposed that the adhesive stamp was engrossed on Ex.A/8 on 3.8.1981. DW5 has however further stated that he had no personal knowledge about the preparation of Ex.A/8. On being shown Ex.A/8, DW5 conceded that in Ex.A/8, there was no mention about suit no.310 of 1981. He however denied that Ex.A/8 was prepared much prior to 3.8.1981 when the said suit no.310/81 was decreed. He denied that the said suit no.310/81 was collusive, as between Balai Chand, defendant no.14 and defendant no.2. DW5 has further stated that suit no.310/81 was filed for specific performance against Balai Chand and defendant no.2 as executor of the will; that the testator was not alive when Ex.A/8 was executed; that Balai Chand had died leaving behind him nine children and two wives; that they were not made parties to the suit no.310/81; DW5 denied that he was aware of the revocation of the grant of probate in 1987. He denied that defendant no.14 was aware of the revocation of the probate in the year 1987. On behalf of defendants no.15 to 20, DW6 deposed that the plaintiffs in the partition suit were never in possession of the suit premises. He denied that defendants no.15 to 20 were aware of revocation of probate at the time when they bought the suit premises from defendant no.14. DW6 stated that the work of construction of the new premises after demolition of the old building started in 1991, which work continued till 1996. That the construction of the new building got completed in 1996. DW6 further stated that 13 flats have been sold to various purchasers after receiving consideration.

On the above pleadings and the evidence, following points arise for determination: (I) Effect of revocation of the probate on the disposition(s) during the pendency of the probate.

(II) Was the disposition during the pendency of the probate founded on fraud or collusion between the executor and the developers? and (III) Was defendant no.14 bona fide purchaser for value without notice? If so, whether subsequent alienation by defendant no.14 in favour of defendants no.15 to 20 is valid and binding on the intestate heirs of Balai Chand?

I. EFFECT OF REVOCATION OF THE PROBATE ON THE DISPOSITION(S) DURING THE PENDENCY OF THE PROBATE.

The Indian Succession Act, 1925 is enacted to consolidate the law applicable to intestate and testamentary succession. Section 2(f) defines the word "probate" to mean the copy of a will certified under the seal of a Court of a competent jurisdiction with a grant of administration to the estate of the testator. Section 2(h) defines the word "will" to mean 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. Part VI deals with testamentary succession. Section 59 refers to persons capable of making wills. Section 61 inter alia states that a will obtained by fraud, coercion or undue influence which takes away the volition of a free and capable testator, is void. Under section 63, every will is required to be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will.

The evidence further shows that during the life time of Balai Chand, Ex.A/1 and Ex.A/2 came to be executed. That although Ex.A/1 and Ex.A/2 were executed by defendant no.2 as the constituted attorney of Balai Chand, an amount of Rs.1.25 lacs was received by Balai Chand from defendant no.14, which is uncontroverted evidence of DW5, and which indicates that Balai Chand was aware of Ex.A/1 and that he intended to sell the suit premises to defendant no.14. Further, Ex.A/3 shows that the cheque for Rs.1.25 lacs was drawn in favour of Balai Chand. Further, Balai Chand lived for almost three years after making the will on 25.12.1977. He found Arindam to be obedient. He loved Arindam and Mamta. These basic tell-tale circumstances have not been considered by the Courts below. Both the Courts below have drawn inferences from circumstances with dead uniformity and without realistic diversity. The factors taken into account by the Courts below have been broadly indicated. However, it is important to note that in this case we are concerned with the intention of the testator. The basic error committed by the Courts below is that it has examined the alleged suspicious circumstances de hors the above tell-tale circumstances duly established by evidence and the contents of the will viz. the strained relationship between the testator and Nirmala, Jamuna and their children, the love and affection of Balai Chand for Mamta and Arindam and lastly the strong personality of the deceased. In the light of the above circumstances, the factors relied upon by the Courts below are not relevant particularly in the context of deciding the question whether Balai Chand had approved the impugned disposition in favour of Arindam. With these findings, we may examine each of the factors taken into account by the trial Court. The trial Court has placed reliance on the affidavit of Mamta dated 25.9.1997 in which, as stated above, Mamta has alleged that the will was forged; and that it was outcome of undue influence exercised by defendant no.2 on Balai Chand. However, the said affidavit has been filed by Mamta at an interim stage and it is not put in evidence. On 26.11.1997, Mamta files another affidavit, in which she states that she has gone through Ex.A/1, Ex.A/2, Ex.A/8 as well as the will and the power of attorney executed by Balai Chand in favour of Arindam. By the said affidavit, she confirms the signature of Balai Chand on the power of attorney in favour of Arindam. She also confirms the sale by Arindam in favour of defendant no.14. DW1 in his evidence has explained that the first affidavit was filed by his mother under misconception and subsequently on going through the papers she had rectified her earlier position. This evidence has not been shaken. Therefore, the said alleged suspicious circumstance stood cleared. The next circumstance which the trial Court found to be abnormal is execution of power of attorney by Balai Chand during his life time. Balai Chand was 90 years of age. Negotiation of sale is a tedious and laborious task. He was hale and hearty but to negotiate and sell the property was difficult for an old man. Hence, we do not find any abnormality in the son being appointed as constituted attorney, particularly when under the will Arindam was the legatee. The trial Court has come to the conclusion that the power of attorney was not produced in evidence by Arindam and consequently execution of Ex.A/1 by constituted attorney of Balai Chand was to defraud Balai Chand and his heirs. However, the trial Court has failed to consider the evidence of DW5 stating that Rs.1.25 lacs was received by Balai Chand. In this connection, Ex.A/3 is important. It indicates payment by cheque in favour of Balai Chand of Rs.1.25 lacs which has not been considered by the trial Court. It indicates that Balai Chand had knowledge of Ex.A/1 and that he had approved the agreement of sale. In the cross- examination Arindam has deposed that Balai Chand had signed the power of attorney. Arindam has denied the suggestion of Balai Chand not executing the power of attorney. Lastly, the evidence of Arindam has not been shaken on this point. The next circumstance which the trial Court takes into account is that Arindam has received payments of Rs.9.54 lacs whereas under Ex.A/1 he was entitled to receive Rs.15 lacs. As stated above, no suggestion was put to DW1 (Arindam) in cross- examination on this point. In the case of Surendra Nath Chatterji (supra), it has been held that the propounder must explain those circumstances which are put to him in cross-examination. In the present case, for example, there could be number of explanations. Was the price reduced to meet the cost of evicting tenants and free the suit premises from encumbrances? In the absence of allegations the trial Court could not have proceeded on the above circumstance to hold that property was sold at a lesser price. In fact there was no such plea taken by the plaintiffs. The next circumstance on which the trial Court placed reliance was revocation of probate. According to the trial Court Arindam had obtained the probate fraudulently. According to the trial Court the will was forged. As stated above, this finding was without evidence. As stated above, the application dated 14.5.1986 by Bhabesh on the aforesaid grounds was dismissed. PW1 has stated that probate was revoked for non-citation pursuant to application by his sisters. Hence, the trial Court had given the finding without evidence. In this connection the trial Court relied upon the interim order passed by the Division Bench of the High Court in the case of Naresh Chandra Ghosh & others v. Archit Vanijya and Viniyog Ltd. & others reported in [(1998) 2 Cal. L.J. 344]. The only question before the Division Bench of the High Court was whether defendants no.15 to 20 should be restrained from raising construction and whether receiver should be appointed. In the said order, there is no finding of forgery. On the contrary, in the said order, it has been clarified that admittedly a multi-storey building has been constructed and that the plaintiffs in the partition suit in normal circumstances must be held to have knowledge of ongoing construction. That the plea of ignorance raised by the plaintiffs cannot be accepted. Under the aforestated circumstances, the inferences drawn by the trial Court are from circumstances which have not been alleged and proved. The findings are not based on evidence. The trial Court has failed to take into account the proved preponderatory circumstances and it was influenced by inconsequential matters in holding that the will was not genuine. Before concluding, we reiterate that revocation of the probate operates prospectively; that such revocation does not obliterate bona fide transactions entered into by the executor during the pendency of the probate; that we have gone into the circumstances surrounding the will as they were pressed into service during the course of the argument.