Important point
After the probate of the will is granted then it becomes effective from the death of the testator and all property will be vested in the person in whose favour the probate was granted.

Headnote:Indian Succession Act, 1925—Sections 211, 227 and 247—Powers of administrators pendente lite—Lease agreement entered into by Joint Receivers when scheduled property was subject matter of appeal—Effect on dismissal of appeal when property no more remain custodia legis and joint receivers stand discharged—Two properties bearing No. 21/1/C and 21/1/D were bequeathed in favour of appellant and her sister by their mother—Both the sister filed application for grant of probate—Brothers contested the proceedings—Probate was granted in favour of daughters—Pending appeal, High Court appointed two administrators-cum-joint receivers—Court permitted joint receivers to lease out premises in favour of respondent 1—Possession of premises No. 21/1/D was given to respondent 1 but lease deed was not executed—Possession of premises No. 21/1/C was not given to respondent 1—Application filed by respondent to execute lease deed for both the premises and permit possession of premises No. 21/1/C—Application rejected by the High Court—Respondent filed suit for specific performance—Meanwhile probate proceedings were decided in favour of two sisters—Whether property stood vested with the sisters—(Yes)—Property no more remains custodia legis—Joint Receivers stood discharged—High Court had no jurisdiction to pass any order on the subsequent application filed by parties.
Held : After the dismissal of first appeal by the High Court, property stood vested with both sisters and they became absolute owner and property no more remain custodia legis. The appointment of Joint Receiver came to an end and they stood discharged. As such, there was no need for the Division Bench to consider the application filed by the applicant (respondent herein). In fact, while the order was passed by this Court on 2nd January, 1995 it was not brought to the notice of this Court that the property was no more custodia legis as on that date the appeal filed by the brothers of the appellant had already been dismissed by way of compromise. It was clearly mentioned in the order dated October 3, 1988, as quoted above, “while disposing the first appeal that all the applications stand disposed of” meaning thereby, that at that time no matter was pending in the High Court and the order passed by the Division Bench was without jurisdiction. It is true that this Court on January 2, 1995 under the bona fide impression gave liberty to the applicant to move the Calcutta High Court for appropriate relief. But the net result is that both these Special Leave Petitions were dismissed by this Court and no positive direction was passed by this Court. It was only the observation leaving the respondent No.1 to seek an appropriate remedy before the Division Bench of the High Court if permissible under the law. But at the time when this application was moved for appropriate direction before the Calcutta High Court, the Calcutta High Court was no more seized with the matter, as the first appeal filed before the Calcutta High Court had already stood disposed of on 3rd October, 1988. Therefore, the property was neither custodia legis nor was the High Court competent to pass the impugned order. (Para 27)
However, we cannot be oblivious of equity created in favour of Respondent No.1. The equity requires in the matter that the Court permitted Joint Receivers to enter into a lease with the respondent No.1, it would be unfair to leave the respondent No.1 high and dry at this distance of time. The Division Bench by its order dated 4th December, 1988 did not grant any relief except to sue the joint receiver for execution of the lease deed with regard to the premises No. 21/1/D but denied the possession of the premises No. 21/1/C or execution of lease deed for this property. Therefore, we are not inclined to pass any order with regard to the possession or execution of lease for Premises No. 21/1/C and set aside the order of High Court. But so far as Premises No. 21/1/D is concerned, though no lease was executed but possession was handed over to the respondent No.1 herein on 16th June, 1986 and they are in possession since then. Therefore, we direct that the appellant shall execute the lease deed for remaining period of the 21 years of lease from 16th June, 1986 on same terms and conditions as contained in offer letter dated 12th November, 1985 and the respondent shall pay arrears of rent, if not paid so far and all other money in terms of the Offer dated 12th November, 1985 within one month of the receipt of this Order. In case, the respondent fails to pay, it will be open for the appellant to proceed against the respondent No.1 in accordance with law. The appellant shall refund sum of Rs. 10,000/- paid by respondent No.1 towards duty for premises No.21/1/C or adjust against dues, if any. (Para 28)

Judgment

A.K. Mathur, J.—This appeal is directed against an order passed by learned Division Bench of Calcutta High Court dated November 26, 1997 in First Appeal No. 469 of 1980 whereby the Division Bench of the High Court allowed the application of the Respondent No.1 and directed the appellant to execute the lease deed with regard to premises Nos. 21/1/C and 21/1/D, Gora Chand Road, Calcutta-700 014 in terms of the order dated May 5, 1986 within a period of six weeks from the date of order i.e. November 26, 1997 for a period of 21 years commencing from the date of grant of relevant permission by the Court, in default, it would be open to the respondent No.1 to apply before the trial court for execution of the lease. It was further directed that the respondent No.1 was to pay the arrear of occupation charges after adjustment of the amounts already paid by him with regard to the concerned properties and excluding the period of non-possession of the premises No.21/1/C in terms of the letter of offer dated November 12, 1985 within four weeks to the receiver and the trial court may issue necessary directions to the receiver with regard to disbursement of the said amount. Aggrieved against this order, the present appeal was filed by the appellant.

2. This case involves a very chequered history. There are two properties bearing No. 21/1/C and 21/1/D at Gora Chand Road, Calcutta. The said properties initially belonged to one Smt. Hemantabala Roy, the mother of the appellant. She bequeathed the property in favour of her two daughters, Subhadra Rani Pal Choudhary (the appellant herein) and Jyotsnamayee Pal Choudhary since deceased. Both were joint executrix under the will. The will was executed by Smt. Hemantabala Roy in favour of these two daughters on April 2, 1971. The said will was registered on April 12, 1971. Both the sisters moved an application for grant of probate but the brothers of the appellant contested the probate. Therefore, Original Suit No.5 of 1975 was registered. However, probate was granted in favour of the daughters. Thereafter, the brothers of the appellant preferred an appeal before the High Court being First Appeal No. 469 of 1980. Pending First appeal, the High Court appointed Smt. Jyotsnamoyee Pal Chowdhary and Smt. Subhadra Rani Pal Chowdhary as administrators - cum-joint receivers pendente lite by order dated 27th April 1981. During the pendency of this matter, an application was filed for seeking permission to let out both these premises i.e. Nos. 21/1/C and 21/1/D at Gora Chand Road, Calcutta. The Division Bench of the High Court granted permission on April 30, 1985 to proceed and invite offers. Offers were invited by issuing advertisement on November 20, 1985 and an offer was made by Harvard House, Montessori School on November 12, 1985, respondent No.1 was in-charge of the said school. The respondent No.1 being the highest bidder; her bid was accepted and Court by order dated May 5, 1986 permitted joint receivers to lease out premises in favour of the respondent No.1. The order dated May 5, 1986 reads as under:

“Heard learned counsel for the parties.

It appears that the offer made by Harvard House, 17 Camac Street, Calcutta-700 017, is the highest. Learned counsel for the opposite parties, appellants also agrees to this.

Leave is accordingly granted to the applicants in terms of prayers (a) and (b) of this application to let out the premises to Harvard House, 17 Camac Street, Calcutta-700 017 for a period of twenty one years on terms contained in the letter of offer dated November 12, 1985 as annexed to the affidavit-in-reply to this application.

This application is disposed of as above.”

3. As a result of this, the offer of respondent No.1 who being the highest bidder was accepted and the rent was fixed at Rs. 6500 per month with other conditions. The possession of the premises No.21/1/D, Gora Chand Road, Calcutta was given to respondent No.1 on June 16, 1986 in terms of the offer made by respondent No.1. Th

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2005 Supreme(SC) 577

Important pointAfter the probate of the will is granted then it becomes effective from the death of the testator and all property will be vested in the person in whose favour the probate was granted.

Cases Referred (7)

Important point
After the probate of the will is granted then it becomes effective from the death of the testator and all property will be vested in the person in whose favour the probate was granted.