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IN THE HIGH COURT OF CALCUTTA
Indra Prasanna Mukerji, J.
In the goods of : Jibendra Nath Biswas, since deceased & Anr. - Petitioners
Versus
Swadesh Ghosh and Ors. - Respondents
C.A. No. 2705 of 2013 in P.L.A. No. 292 of 2012
Decided On : 11-08-2014
For the Applicant :S.K. Kapoor, Ranjan Bachawat, Suman Dutt, Sukrit Mukherjee, Soumabho Ghose, Debraj Mukherjee and Saudull Abedin, Advocates
For the Respondent:Ahin Chowdhury, Gopal Pahari ad Arif Ali, Advocates
A probate obtained by fraud is not valid and can be revoked by the court.
Headnote:
REVOCATION OF PROBATE - JUST CAUSE - FRAUDULENT REPRESENTATION OF INTESTACY - SUBSEQUENT PROBATE OF WILL - APPLICANT'S CAVEATABLE INTEREST - REVOCATION OF PROBATE IN COMMON FORM - REJECTION OF LIMITATION ARGUMENTS - APPLICANT'S RIGHT TO POSSESSION PENDING FURTHER ORDERS.
Fact of the Case:
The applicant, Lagnajita Saha, entered into an agreement to purchase a property from the heirs of Jibendra Nath Biswas, who had died intestate. She paid Rs. 70 lakhs to the heirs and constructed a four-storied building on the property. Later, a purported will of Jibendra Nath surfaced, bequeathing the property to the first respondent, Swadesh Kumar Ghosh. The executor of the will, Durgapada Dey, obtained probate of the will in common form from the Calcutta High Court.
Finding of the Court:
The court found that the heirs of Jibendra Nath had fraudulently represented to the applicant that he had died intestate. They had also filed consent affidavits in the probate proceedings, agreeing to the grant of probate in favor of the executor. The court held that the heirs' conduct amounted to fraud and that the probate obtained by the executor was not valid.
Issues: 1. Whether the applicant had sufficient interest to maintain an application for revocation of probate. 2. Whether the probate obtained by the executor was valid. 3. Whether the applicant was entitled to possession of the property.
Ratio Decidendi: 1. The court held that the applicant had sufficient interest to maintain the application for revocation of probate as she was in possession of the property and had constructed a building on it. 2. The court held that the probate obtained by the executor was not valid as it was obtained fraudulently by the heirs of Jibendra Nath. 3. The court held that the applicant was entitled to retain possession of the property until orders were passed to the contrary by a competent court of law.
Final Decision: The court revoked the probate granted to the executor in common form and allowed the applicant to retain possession of the property.
Indra Prasanna Mukerji, J.
One Jibendra Nath Biswas obtained on lease from the Government of West Bengal on 30th March, 1997, a parcel of land comprising of 6.3522 cottahs, which was demarcated and described as plot No. 7 in Block-BA, Sector-1, of Bidhannagar in Salt Lake City, extension area District 24 Parganas (s), P.S. Salt Lake. The lease was for 999 years.
2. Jibendra Nath died on 5th November, 1991. Whether he died intestate or testate is the question to be ultimately answered. At the time of his death, he left behind Kuhu Biswas, his widow and two sons Dipta and Soumya, as his natural heirs. They are impleaded as the fifth to seventh respondents in this proceeding.
3. At least these three persons believed that Jibendra Nath had died intestate. This is for various reasons. They proposed to apply before the Urban Development Department of the Government of West Bengal to record their names as joint lessees, of the said property as the heirs of Jibendra Nath. In this connection Kuhu Biswas affirmed an affidavit on 14th May, 1996 before the Notary Public Calcutta, where she declared that Jibendra Nath had died intestate and that she and her two sons aged 25 years and 20 years respectively were his only legal heirs. Similarly, Dipta and Soumya affirmed separate affidavits before the same Notary stating that each of the three of them was entitled to l/3r of the above property. They said that they were unmarried and were residing with their mother. There was no mention of a will or any other testamentary instrument of their father.
4. On 18th November, 1999 The Bidhannagar Municipality made a communication to the widow and the-three sons to the effect that their names had been mutated in their records in place of Jibendra Nath, with effect from 4th October, 1996, in respect of the said property. Therefore, in the records of the Municipality these three persons were recorded as joint lessees of the property.
5. Constructors House Private Limited, the eighth respondent is a company incorporated under the provisions of the Companies Act, 1956. It has it registered office at 20A, Mahendra Sreemani Street, Kolkata-700009.
6. On 26th April, 1999 these three heirs of Jibendra Nath, who are impleaded in this application as the fifth, sixth and seventh respondents gave possession of this property to this company as a lessee. A tenancy agreement was entered into on 26th April, 1999 between this company and the fifth, sixth and seventh respondents. According to the agreement a sum of Rs. 30 lakhs was paid by the company to these three persons as security deposit.
7. Arup Chatterjee, was the Joint Managing Director of the company. On 26th April, 1999 a general power of attorney was executed by these three heirs of Jibendra Nath in favour of Arup Chatterjee, giving him power in respect of the whole property. Two other documents were executed by the fifth, sixth and seventh respondents in favour of this company Constructors House, namely an affidavit of declaration dated 26th April, 1999 and an agreement to assign the head lease of these respondents.
8. In this declaration also the three heirs of Jibendra Nath declared that he had died intestate. A similar declaration was made in the agreement to assign. The said company was put into exclusive possession.
9 The next important document is styled as a deed of surrender, cancellation and revocation. It was executed on 2nd June, 2003. The parties to this agreement were the fifth, sixth and seventh respondents of the first part. Constructor's House Private Limited was a party of the other part. The agreement recorded that on 26th April, 1999 a tenancy of the said property was created in favour of the party of the other part and that by the purported agreement for assignment of the same date the lease hold interest of the said respondents was assigned to the said party of the other part. By the present agreement, the earlier agreement of 26th April, 1999 was sought to be cancelled. It was signe
