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2000 Supreme(Cal) 459
High Court of Calcutta
Ajoy Nath Ray & Ranjan Kumar Majumdar, JJ.
Archit Banijya & Biniyog Pvt. Ltd. & Ors.
Vs.
Asha Lata Ghosh & Ors.
F.A. Nos. 46 & 47 of 2000
Decided on : 7th September, 2000
Anindya Mitra, Samaraditya Pal, S.P. Sarkar, Utpal Mazumdar, Sanjoy Basu, Sajal Das, T. Roy, Veneta Meheria for the petitioners
Sudhis Dasgupta, Jyotirmoy Bhattacharya, Kanti Kumar Chakraborty, Amal Kumar Saha, Bhaskar Prasad Vaisya for the respondent No.4
Ashok Banerjee, Sanjib Kumar Mal, Chandrani Chakraborty for the respondent Nos. 5 & 7
Ashis Kumar Roy for the respondent No.1 (b)
An executor does not have the authority to convey the property of the deceased unless a Court of competent jurisdiction has granted probate of the Will under which the executor is appointed.
Headnote:
The court ruled that the purchasers of the property are not entitled to the property, as the executor, who conveyed the property to them, did not have the authority to do so. The probate granted to the executor was later revoked, which rendered all actions taken by the executor, including the conveyance of the property, invalid. The court held that the purchasers were not bona fide purchasers for value without notice, as they had knowledge of the facts that would have put them on inquiry as to the executor's authority to sell the property. The court also rejected the purchasers' arguments based on limitation and section 34 of the Specific Relief Act, 1963.
Fact of the Case:
The case involved a dispute over the ownership of a property located at 9/4 Middleton Row, Calcutta. The property was owned by Balai Chand Ghose, who died in 1980. His third wife, Mamanta, and his only issue by her, Arindam, were the first two defendants in the partition suit. The plaintiffs were Balai's heirs from his first and second wives. In 1981, Arindam, acting as the executor of Balai's Will, conveyed the property to Crystal Developers, the 14th defendant. Crystal Developers subsequently sold the property to the defendant Nos. 15 to 20. The plaintiffs filed a suit for partition of the property, challenging the conveyance made by Arindam. The trial court passed a preliminary decree for partition, which was challenged by the purchasers in two appeals.
Finding of the Court:
The court found that the executor, Arindam, did not have the authority to convey the property to Crystal Developers, as the probate granted to him was later revoked. The court also found that the purchasers were not bona fide purchasers for value without notice, as they had knowledge of the facts that would have put them on inquiry as to the executor's authority to sell the property. The court further held that the purchasers' arguments based on limitation and section 34 of the Specific Relief Act, 1963, were not tenable.
Issues: 1. Whether the executor had the authority to convey the property to Crystal Developers? 2. Whether the purchasers were bona fide purchasers for value without notice? 3. Whether the purchasers' arguments based on limitation and section 34 of the Specific Relief Act, 1963, were tenable?
Ratio Decidendi: 1. The court held that the executor did not have the authority to convey the property to Crystal Developers, as the probate granted to him was later revoked. The court relied on section 211 of the Indian Succession Act, 1925, which states that the property of the deceased vests in the executor only upon the grant of probate. 2. The court held that the purchasers were not bona fide purchasers for value without notice, as they had knowledge of the facts that would have put them on inquiry as to the executor's authority to sell the property. The court noted that the purchasers had knowledge of the existence of the heirs of Balai, and that they had not made any inquiries as to the executor's authority to sell the property. 3. The court held that the purchasers' arguments based on limitation and section 34 of the Specific Relief Act, 1963, were not tenable. The court held that the suit for partition was not barred by limitation, as the purchasers had knowledge of the facts that would have put them on inquiry as to the executor's authority to sell the property. The court also held that section 34 of the Specific Relief Act, 1963, did not apply, as the purchasers were not entitled to a declaration of title to the property.
Final Decision: The court dismissed both the appeals filed by the purchasers. The court held that the purchasers were not entitled to the property, as the executor, who conveyed the property to them, did not have the authority to do so. The court also rejected the purchasers' arguments based on limitation and section 34 of the Specific Relief Act, 1963.
Ajoy Nath Ray, J.
We have heard two appeals from the same decree, which is a preliminary decree for partition.
2. The only property centering which arguments have been made in these appeals is premises No. 9/4 Middleton Row. It measures some 1 bigha 6 cottas of land and is situated in one of the best localities in mid-town at Calcutta.
3. Although the decree was passed on 23rd December, 99 the suit had been instituted as early as in 1981. It was a partition suit amongst the heirs of one Balai Chand Ghose, deceased, who died on the 16th August, 1980 having led a full and rich life.
4. He left behind him two mourning widows, his first wife having predeceased him in his lifetime. There were 9 other heirs of Balai Chand Ghose and the partition suit was, inter alia, amongst these progeny and the wives.
5. Other property than the one mentioned above was also involved in the suit, but we are not concerned with these. At the time of his death, Balai was living with his third wife Mamanta and his only issue by her, Arindam. They were the first two defendants in the partition suit.
6. The plaintiffs were ........ the second wife of Balai, namely, Nirmala and her children, the younger son Bhabesh being the plaintiff No.4 playing an important role in the shape of the only witness who came to give evidence on behalf of the plaintiffs. During the lifetime of Balai, there was a litigation between him and his second wife Nirmala about 9/4 Middleton Row. It stood in the Benami of Nirmala but the real ownership of Balai was established by decree and that is not challenged before us.
7. Sometime after the suit was filed in 1981, there was a substitution application made by Arindam in regard to a Debuttar matter and therein an order was passed at Alipore, sometime in the year 1982 permitting substitution of Arindam as executor of Balai appointed by his will, upon Arindam depositing a copy will within a named date in that very same year.
8. This Will of Balai is an important matter in the decision of these two appeals. This is a document of 1977. It has been registered although a Will, as is well known, is not compulsorily registable. Arindam is the named executor in the Will. We have directed the Will to be kept in the safe custody of the learned Registrar, Original Side of our court.
9. Although Arindam got himself substituted in a legal proceeding in 1982 and mentioned about Balai's Will and his executorship, he had not then mentioned that he had obtained a probate of the Will by that time, granted on 29/31.7.1981. Although Arindam had applied for his substitution as Balai's executor in the next year after he had got the grant, he kept the probate obtained at his instance and granted to himself a secret.
10. Arindam has proved in the hearing of these two appeals to be quite a slippery customer. He put in an appearance through a learned advocate before us. But he had left him so ill-instructed, that the learned Advocate was not even able to say before us whether Arindam was supporting the appeals or not. Soon thereafter, Mr. Saptangsu Basu, the learned Advocate prayed for leave to retire for lack of instructions and we granted him such leave. One day in court Arindam had also come and we became aware of him because learned Counsel appearing said that Arindam is in court; so far as we remember, although we would not like to lay a wager on this, Arindam appeared to be a well built, tall, and hefty person with shifty eyes. Thereafter, after Arindam walked out of the court room, he never came again. Mr. Saptangsu Basu, learned advocate, also had no further role to play at the hearing of these appeals.
11. The appellant in these appeals are not any of the heirs of Balai. They are all added defendants, the addition taking place some 13 years after the filing of the suit, that is, sometime in 1994.
12. The 14 defendant Crystal Developers claim to have purchased the entire right, title and interest in the premises (hereinafter meaning 9/4 Middleton Row only
