IMPORTANT POINTS
1. The grant of probate establishes the genuineness of the Will and the person in whose favour the probate is granted is entitled to convey the title arising out of the Will probated by the Court and the third party who acts bona fide and deals with the grantee cannot be made answerable to the fraud or mistakes committed by the propounder.
2. Section 41 of the Transfer of Property Act is an exception to the general rule that a person cannot confer a better title than what he has.

Headnote:(i) Indian Succession Act, 1925-Sections 2(f), (h), 59, 61, 63, 211, 212, 213, 214, 216, 218, 219, 220, 221, 227, 235, 263, 273, 297, 307, 317, 332-Transfer of Property Act, 1882-Section 41-Evidence Act, 1872-Section 41-Will-Effect of probate on dispositions-Owner of properties, testator had two wives and nine children when he made the Will-He had been living with wife M and her son defendant 2-Making of Will bequeathing suit properties to defendant 2-Sale deeds executed by defendant 2 as constituted attorney of his father, testator-Cheque of Rs. 1.25 lacs was drawn in favour of testator-Testator lived for almost three years after making the Will-Strained relations between testator and other two wives and their children-Under the Will, defendant 2 was the legatee-Testator had approved agreement of sale of suit property in favour of defendant 14-Whether defendant 14 was bona fide purchaser for value without notice-(Yes)-Whether subsequent alienation by defendant 14 in favour of defendants 14 to 20 is valid and binding on intestate heirs of testator-(Yes).
       Held : The grant of probate establishes the genuineness of the will and the person in whose favour the probate is granted is entitled to convey the title arising out of the will probated by the Court. It may happen that the propounder did not take appropriate steps, by mistake, to notify the other heirs before obtaining probate. But the third party who acts bona fide and deals with the grantee cannot be made answerable to the fraud or mistakes committed by the propounder. (Para 53)
       Applying the above tests to the evidence on record we find that Balai Chand had strained relationship with his first two wives; that he had differences with his sons from the first two wives; that there were litigations writ galore between them; that Balai Chand loved Arindam and that he had bequeathed the suit premises to Arindam under the above will. Further, the sons of Nirmala have fought legal battles on every issue both during the life time of Balai Chand and even after his demise. Even after revocation, Ramesh had objected to revival of probate proceedings. These circumstances are relevant because the main ground on which the Courts below have proceeded to declare Ex. A/8 as fictitious, although there is no plea, was the speed with which Ex. A/8 came about. According to the impugned judgments the manner in which suit No. 310/81 was filed without impleading the other heirs and the manner in which Ex. A/8 came to be executed on 4.8.1981 after the grant on 31.7.1981, without reference to the consent decree dated 3.8.1981 in suit No. 310/81, proved that Ex. A/8 was collusive and fictitious having being entered into to defeat the claims of the intestate heirs. These findings of the Courts below are without consideration of the relevant circumstances. After the will dated 25.12.1977, Ex. A/1 was executed on 12.3.1979 followed by supplemental agreement dated 21.7.1980 (Ex. A/2) under which Balai Chand agreed to sell the suit premises to defendant No. 14. It is true that Ex. A/1 and Ex. A/2 have been signed by Arindam as constituted attorney of Balai Chand. However, it would not be correct to say that Balai Chand was not aware of Ex. A/1 and Ex. A/2. In this connection, DW 1 has deposed that Rs. 1.25 lacs was received by him under the said agreement, Ex. A/1. That as can be seen from Ex. A/3, the cheque for Rs. 1.25 lacs was drawn in favour of Balai Chand. The said amount was credited to his account. This evidence is not considered by the Courts below. This evidence was clinching as Ex. A/8 has been executed pursuant to Ex. A/1 and Ex. A/2 which were entered into during the life time of Balai Chand. That Ex. A/1 and Ex.A/2 were, therefore, binding on the estate of Balai Chand and his other heirs. Under the will the suit premises have been bequeathed to Arindam. Hence, both the Courts erred in holding that Ex. A/8 was fictitious having been entered into to defeat the claim of other heirs. (Para 54)
       The evidence shows the propensity of the family to litigate on every issue. The developers had invested huge amount not only in the payment of consideration but also by way of costs incurred to free the suit premises from requisition, acquisition and other encumbrances including eviction of tenants. Under the above circumstances, after the probate, the developers were bound to expedite the sale. Even according to the Division Bench of the High Court, Arindam was not reliable. In the circumstances, without evidence, the Courts below erred on the basis of expedition of sale that Ex. A/8 was fictitious and based on collusion between Arindam and defendant No. 14. Similarly, for the aforestated reasons, both the Courts below erred in holding that probate was obtained fraudulently without effecting service on Parul and Manju. (Para 55)
       Nirmala was aware of the will as early as 21.8.1982. She did not apply for letters of administration. She did not challenge the will. Between 21.9.1981 to 22.6.1993 (when the plaint was amended) the developers demolished the old building. They constructed a multi-storey building. They got freed the property from all encumbrances stated herein above. In the circumstances, it cannot be said that the other heirs of Balai Chand had no knowledge of the aforestated events. (Para 59)
       The test laid down in the matter of applicability of section 41 of the Transfer of Property Act is squarely applicable to the facts of the present case. The intestate heirs of Balai Chand allowed Arindam to represent to the developers that he was the owner of the suit premises. It is established by the conduct of the inaction on the part of the intestate heirs of Balai Chand. Hence, we hold that defendant No. 14 was bona fide purchaser for value. (Para 59)
       In the present case, under the will, the suit premises have been bequeathed to Arindam who is also appointed as an executor. Therefore, there is nothing to suggest that Ex. A/8 was incompatible with the administration of the estate of Balai Chand. In the circumstances, we hold that defendant No. 14 was a bona fide purchaser for value and the alienation effected by defendant No. 14 in favour of defendants No. 15 to 20 was valid. (Para 60)
       (ii) Constitution of India-Article 136-Appeal by Special Leave-Concurrent findings recorded by Courts below-Generally, the Supreme Court does not interfere-However, in cases where findings have been given on documents and on basis of assumption and inferences founded on facts and circumstances, which in themselves offer no direct or positive support for conclusion reached-Supreme Court is empowered to review such findings.
       Held : We are mindful of the fact that generally this Court does not interfere with the concurrent findings recorded by the Courts below in civil appeals by way of special leave under Article 136 of the Constitution of India. However, in cases where the Courts below have given findings on documents and on the basis of assumption and inferences founded on facts and circumstances, which in themselves offer no direct or positive support for the conclusion reached, it is our incumbent duty to review such inferential process. In such cases, the right of this Court to review such inferential process cannot be denied. It is well settled that inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not with dead uniformity. We have, therefore, interfered with the concurrent findings recorded by the Courts below as we find that in the present case, findings have been recorded on fraud and collusion in favour of the plaintiffs, who have not alleged fraud or collusion supported by the particulars. (Para 62)
       (iii) Transfer of Property Act, 1882-Section 41-Section 41 is an exception to general rule that a person cannot confer a better title than what he has-Onus on transferee to show that transferor was the ostensible owner of property and that transferee acted in good faith. (Paras 57 & 58)

Judgement Key Points

Certainly. Based on the provided legal document, the key points are as follows:

The grant of probate confirms the genuineness of a will and entitles the person in whose favor it is granted to convey the estate's title. A third party acting bona fide and dealing with the probate holder cannot be held responsible for any fraud or mistakes committed by the propounder (!) .
Section 41 of the Transfer of Property Act provides an exception to the general rule that a person cannot confer a better title than he has, placing the onus on the transferee to demonstrate that the transferor was the ostensible owner and that the transferee acted in good faith (!) (!) .
The property of a deceased person vests in the executor by virtue of the will, and the probate operates prospectively from the date of the testator’s death, establishing the will and protecting intermediate acts of the executor performed in accordance with the estate's administration (!) (!) .
Revocation of a probate does not render the initial grant void ab initio or retroactively invalidate acts performed under it, provided those acts were in good faith and in line with the estate's administration. Such revocation operates prospectively, not retrospectively (!) (!) .
Intermediate acts by the executor, performed in good faith and in accordance with the will, remain valid even if the probate is later revoked, unless those acts are incompatible with the proper administration of the estate or involve breach of trust (!) (!) .
The validity of a disposition during the pendency of probate depends on whether it was obtained through fraud, collusion, or other irregularities. If such grounds are established, the disposition may be invalidated; otherwise, bona fide purchasers for value without notice are protected (!) (!) (!) .
The law recognizes that a will takes effect upon the death of the testator, and the property vests in the executor from that moment. The grant of probate is a procedural confirmation that operates prospectively, and acts performed by the executor during the validity of the probate are protected unless they are in breach of trust or contrary to the estate's administration (!) (!) .
The burden of proving the validity of a will and the absence of fraud or undue influence lies with the party asserting it. Registration or formalities surrounding the will are not conclusive proof of its genuineness; suspicious circumstances can cast doubt on its validity (!) (!) .
The revocation of probate on grounds such as non-citation, fraud, or forgery does not automatically render previous acts null and void if those acts were performed in good faith and in the course of proper estate administration. The revocation operates prospectively, and intermediate acts remain valid unless they breach trust or are incompatible with estate administration (!) (!) .
The protection accorded to bona fide purchasers for value without notice remains intact unless they are aware of or involved in any fraudulent or collusive acts. The absence of specific allegations of fraud or collusion against a purchaser supports their claim to good faith and protection under law (!) (!) .
The legal framework emphasizes that the estate's vesting in the executor occurs independently of the probate, and the probate primarily serves as evidence of the will's validity and the executor's authority, with revocation affecting future acts but not necessarily invalidating past transactions performed in good faith (!) (!) .
The law permits the revocation of a grant if obtained through defective proceedings or fraud, but such revocation is prospective and does not automatically invalidate acts performed during the period when the probate was valid, unless those acts were in breach of trust or incompatible with estate administration (!) (!) .

Please let me know if you need further analysis or clarification on any specific point.

JUDGMENT

Kapadia, J.-Civil Appeals No. 6258-6259 of 2000

These civil appeals, by grant of special leave, are directed against the judgment and order dated 4.9.2000 passed by the High Court of Calcutta in First Appeal Nos. 46 and 47 of 2000 confirming the judgment and decree passed by the Court of 9th Sub Judge, Alipore, Calcutta in Title Suit No. 89 of 1981, whereby the suit for partition stood decreed. It may be clarified that Civil Appeal No. 6258 of 2000 has been preferred by Crystal Developers who were original defendant No. 14 in title suit No. 89/81 whereas Civil Appeal No. 6259 of 2000 has been filed by Archit Vanijya & Viniyog Pvt. Ltd. & others, original defendants No. 15 to 20 in the said suit No. 89/81.

2. Since common questions of law and fact arise in the said Civil Appeals, the same were heard together and are disposed of by this judgment.

3. The facts giving rise to these appeals are as follows:-

One Balai Chand Ghosh (since deceased) had three wives. His first wife was Jamuna, from whom he had two sons, Naresh and Paresh. Nirmala was the second wife of Balai Chand Ghosh, from whom there were four sons and two daughters, namely, Jogesh, Ramesh, Bhabesh and Suresh. The names of the two daughters were Parul and Manju. Mamta was the third wife who had only one issue, Arindam.

4. On 21.9.1981, the above partition suit No. 89/81 was filed in the Court of 9th Sub Judge, Alipore (hereinafter for the sake of brevity referred to as "the trial Court"). It was field by Naresh, Jogesh, Ramesh, Bhabesh, Parul and Manju as legal heirs of Balai Chand, who had died on 16.8.1980. Balai Chand Ghosh left behind him considerable properties, one of which was the suit premises situate at 9/4, Middleton Row, Calcutta-16. Mamta, the third wife of Balai Chand was defendant No. 1 and her son Arindam was defendant No.2 in the said suit. Nirmala, the second wife of Balai Chand was the third defendant. Paresh, the son from the first wife, was defendant No.4. Suresh, son of Balai Chand from the second wife, was the 5th defendant. Therefore, the parties to the suit claimed 1/11th undivided share each in the suit premises. The suit premises were wholly tenanted on 21st September, 1981 when the partition suit No.89 of 1981 was filed. In the said suit, a written statement was filed on 9.5.1983 by defendants No.1 and 2, namely, Mamta and her son Arindam. In the said written statement, Arindam set up the registered will made by Balai Chand on 25.12.1977. He relied on the probate dated 31.7.1981; consent decree dated 3.8.1981 in suit No. 310 of 1981 as also the conveyance (Ex.A/8) dated 4.8.1981 in favour of Crystal Developers, defendant No.14. In the written statement, defendant No.2 also relied on the order dated 21.8.1982 passed by the Court of 5th Addl. District Judge, Alipore in Miscellaneous Case No. 3/80 to show that Nirmala had knowledge of the registered will of Balai Chand and of the appointment of defendant No.2 as the executor under the said will. In 1993, the plaint was amended and defendant No.14 was brought on record. It is alleged that on inspection of assessment record of the municipality on 22.6.1993 and 22.8.1993, the plaintiffs came to know of the impugned transfer. According to the amended plaint, Mamta (defendant No.1) and Arindam (defendant No.2) had sold, in collusion with each other, the suit premises to defendant No.14 to prevent the plaintiffs from claiming the same; that prior to the transfer, defendants No.1 and 2 did not serve notice to the other heirs of Balai Chand; that the plaintiffs were not aware of the agreement for sale dated 12.3.1979 (Ex.A/1), the supplemental agreement for sale dated 21.7.1980 (Ex.A/2), the conveyance dated 4.8.1981 (Ex.A/8); that defendants No.1 and 2 never acquired any indefeasible title and consequently Ex.A/1, Ex.A/2 and Ex.A/8 were null and void and not binding on the other heirs of Balai Chand. The plaintiffs, accordingly, prayed for a preliminary decree for partition of the suit premises af

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2004 Supreme(SC) 1245

Cases Referred (7)