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In view of the above arguments, we have to examine the evidence on record.

On behalf of the plaintiffs, Bhabesh - plaintiff no.4 was examined as PW1. In his examination-in-chief, PW1 deposed that the plaintiffs learnt about the probate case in 1986. In 1986, plaintiffs became aware of Arindam getting the probate. However, PW1 deposed that plaintiffs were not aware of defendant no.2 being appointed executor under the will. He denied execution of the will by Balai Chand. PW1 further deposed that plaintiffs were not aware of Ex.A/8. He conceded that at the material time Balai Chand was not having good relations with Nirmala and her children and that at the material time, his relations with Balai Chand were not good. In his cross-examination, he deposed that there were several litigations between Balai Chand and Nirmala. Balai Chand had instituted title suit no.68 of 1962 in the Court of 8th Subordinate Judge, Alipore for a declaration that he was the real owner of eight properties and that defendant wives in whose name the properties stood were his benamidars. The suit was contested by Nirmala alleging that she was the real owner of the properties. By judgment dated 31.3.1962, the suit was decreed in favour of Balai Chand. Being aggrieved, First Appeal No.491 of 1962 was preferred by Nirmala, Suresh and Bhabesh against Balai Chand. The said appeal was compromised on 29.9.1977. In the said compromise, Balai Chand was declared to be the sole and absolute owner inter alia of the suit premises. The said settlement has been referred to by PW1 in his evidence. The said settlement was between Balai Chand and Nirmala. The compromise was objected to by Ramesh (one of the sons of Nirmala). Ultimately, there was one more compromise decree between Balai Chand and Ramesh, under which Ramesh was given premises bearing 74, Lansdown Road, Calcutta. PW1 in his evidence has also referred to the judgment of the Supreme Court in the case of Nirmala Bala Ghose and another v. Balai Chand Ghose reported in [AIR 1965 SC 1874] arising from suit no.67 of 1955 filed by Balai Chand against Nirmala seeking declaration that the deed of dedication was not an absolute dedication of properties to the deities. PW1 has further stated in his cross- examination that Balai Chand used to reside with his youngest wife Mamta and defendant no.2. PW1 in his cross-examination deposed that in 1986 he had applied for revocation of probate on the ground of fraud in obtaining the probate by defendant no.2 and forgery of the will, however, his application was rejected by the Probate Court. His two sisters, Parul and Manju had thereafter applied for revocation of probate on the ground of non-citation. PW1 admitted that Balai Chand had separated in mess since 1956-57. He was not aware of Ex.A/1. He was not aware of suit no.310/81. He was not aware of the consent decree in suit no.310 of 1981. He conceded that when Balai Chand died on 16.8.1980, litigations were pending between the deceased on one hand and Nirmala on the other hand. That when Balai Chand died, on 16.8.1980, he was living with his third wife Mamta and not with Nirmala. Balai Chand himself used to look after his properties. He has further deposed that he never enquired from Balai Chand about the transfer of properties. PW1 did not make any search in the Registrar's office in the matter of title deeds concerning the suit premises on the demise of Balai Chand. PW1 admitted that the plaintiffs did not take steps to evict the tenants or to get the properties freed from requisition.

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.

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.

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.