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2014 Supreme(Cal) 805
CALCUTTA HIGH COURT
Indra Prasanna Mukerji, J.
In the goods of : Jibendra Nath Biswas, since deceased - Petitioner
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 person who is affected by a will and has a right to come forward before the Court has a caveatable interest under Section 283(1)(c) of the Indian Succession Act, 1925.
Headnote:
REVOCATION OF PROBATE - JUST CAUSE - FRAUD - INTEREST OF APPLICANT - CAVEATABLE INTEREST - LIMITATION - INDIAN SUCCESSION ACT, 1925, SECTIONS 263, 283(1)(B), 283(1)(C).
Fact of the Case:
The applicant, Lagnajita Saha, purchased a property in Salt Lake, Kolkata, from the heirs of Jibendra Nath Biswas, who had obtained a lease for the property from the government. The heirs, Kuhu Biswas (widow) and Dipta and Soumya (sons), represented to the applicant that Jibendra Nath had died intestate and that they were his only legal heirs. They executed various documents, including an affidavit, declaring that they were the heirs on intestacy and that Jibendra Nath had not left a will. Based on these representations, the applicant paid Rs. 70 lakhs to the heirs and constructed a four-storied building on the property.
Finding of the Court:
The court found that the heirs of Jibendra Nath had practiced fraud on the applicant by obtaining probate of a forged will of Jibendra Nath, which bequeathed the property to the first respondent, Swadesh Kumar Ghosh. The court held that the applicant had sufficient interest in the property to maintain the application for revocation of probate and that she had a caveatable interest under Section 283(1)(c) of the Indian Succession Act, 1925.
Issues: 1. Whether the applicant had sufficient interest to maintain the application for revocation of probate. 2. Whether the applicant had a caveatable interest under Section 283(1)(c) of the Indian Succession Act, 1925. 3. Whether the probate granted to the first respondent in common form was obtained fraudulently.
Ratio Decidendi: 1. The court held that the applicant had sufficient interest to maintain the application for revocation of probate as she was firmly in possession of the subject property by virtue of the Agreement to assign the construction agreement and the Power of Attorney all dated 2nd June, 2003 and having constructed a four storied building on the property. 2. The court held that the applicant had a caveatable interest under Section 283(1)(c) of the Indian Succession Act, 1925, as she was affected by the will and had a right to come forward before the Court. 3. The court held that the probate granted to the first respondent in common form was obtained fraudulently as the heirs of Jibendra Nath had practiced fraud on the applicant by obtaining probate of a forged will.
Final Decision: The court revoked the grant of probate dated 7th January, 2013 by this Court PLA No. 292 of 2012 (in the goods of Jibendra Nath Biswas) and allowed the applicant to retain possession of the property until orders were passed to the contrary by a competent court of law.
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
