IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
GA No. 778 of 2011
GA No. 1102 of 2011
CS No. 41 of 2011
RUMI SEIN AND ANOTHER
-Versus-
SANJAY SUREKA AND OTHERS
For the Plaintiffs: Mr P.K. Das, Sr Adv.
Mr Ranjan Bachwat, Adv.,
Mr Amitava Paul, Adv.,
Mr Asoke Basu, Adv.
For the Defendant Nos.: Mr Ahin Choudhuri, Sr Adv.,
1 & 2 Mr Suman Dutta, Adv.
For the Defendant No. 3: Mr Ajoy Krishna Chatterjee, Sr Adv.,
Mr Biswanath Chatterjee, Adv.,
Mr Dipendra Nath Chunder, Adv.
For the Defendant No. 4: Ms Pooja Das Choudhury, Adv.,
Mr Ashish Mukherjee, Adv.
For the Defendant No. 5: Mr Dhruba Ghosh Adv.,
Mr N. Arefin, Adv.
Heard concluded on: June 29, 2011.
BEFORE
The Hon’ble Justice
SANJIB BANERJEE
Date. June 30, 2011
SANJIB BANERJEE, J. : –
Land-sharks are on the prowl and they seem to care little for the battle having shifted from the turf they wish to secure to a court of law. They trade allegations on affidavit just as recklessly as they would resort to every trick not in the book to procure their cherished piece of the earth. The choice here is not between who makes out the prima facie case or defence, but in who has adopted the less dishonest stand. Since the land is in up-market Short Street in the coveted Park Street-Theatre Road area, the stakes are high; that the area the parties fight for is over 17 cottah with profitable vertical possibilities, the matter has let loose a set of audacious assertions and denials.
The plaintiffs claim the first plaintiff to be the executor of a yet unprobated will of one Sailabala Sein with the second plaintiff as a legatee thereunder. The plaintiffs allege that the Short Street property is the subject-matter of the alleged will and that the first and second plaintiffs have sold the same to the third plaintiff. The suit is for asserting the third plaintiff’s exclusive rights in respect of the property. The immediate interlocutory relief sought in GA No. 778 of 2011 is to restrain the defendants from dealing with the property or disturbing the third plaintiff’s possession thereof. The other part of the claim in the suit is for a declaration that certain documents and deeds relating to the property as set up by some of the defendants are illegal and void and the consequential injunction. The plaintiffs’ interlocutory application also carries a prayer that the documents assailed should not be relied upon by the appropriate defendants.
Apart from the plaintiffs asserting the third plaintiff’s title to the property, the plaint refers to two deeds of conveyance relating to the same property registered on June 21 and 22, 1999 in Mumbai. These documents appear to have been executed by the fourth defendant as the attorney of Sailabala and apparently provide for the transfer of the property in favour of the third defendant company. On the strength of such title-deeds, the third defendant conveyed the property in favour of the first and second defendants on or about September 29, 2010. The plaintiffs allege that the fourth defendant is a stranger to the family of Seins and did not reside at the Madan Mitra Lane address that he furnished as his in the documents he appears to have executed as Sailabala’s attorney in 1999. The plaint questions the 1999 transaction on the ground of its stated consideration of Rs.9.5 lakh for the 17-cottah property; maintains that the third defendant company is defunct and at the time of the transaction did not have the means to pay even such meagre amount; and, argues that the 1999 transaction was invalid since the fourth defendant could not have executed the documents on behalf of Sailabala without a registered power of attorney being executed in his favour.
There is a preliminary challenge put forth by the third defendant by way of GA No. 1120 of 2011. The third defendant insists that since Sailabala’s will has not yet been probated, the plaintiffs could not have instituted the suit on the strength of the unprobated will. For such purpose, Section 213 of the Succession Act, 1925 is pressed into service. The third defendant says that in the absence of probate of Sailabala’s alleged will being secured, neither the alleged executor thereof nor the alleged legatee thereunder could attempt to establish the right to the property that is claimed in the suit and is alleged to have been passed to the third plaintiff. A judgment reported at (1962) Supp (3) SCR 294 (Hem Nolini Judah v. Isolyne Sarojbashini Bose) has been carried by the third defendant in support of such argument. Paragraph 7 of the report is placed for the interpretation of Section 213 (1) of the Act therein that it “creates a bar to the establishment of any right under will by an executor or a legatee unless probate or letters of administration of the will have been obtained.” The court went on to add that it was immaterial, in such context, as to whether the right under a will was claimed as a plaintiff or as a defendant. The third defendant has also cited a judgment reported at (1977) 4 SCC 467 (T. Arivandandam v. T.V. Satyapal) that instructs at paragraph 5 of the report that a clear right to sue has to be made out in the plaint and, to ascertain whether such right has been demonstrated, it requires a meaningful, not formal, reading of the plaint. The third defendant has also placed a judgment reported at (1998) 2 SCC 70 (ITC Ltd v. Debts Appellate Recovery Tribunal) for the principle that the mere use of the word “fraud” in a plaint would not imply that the cause of action is based on fraud.
The plaintiffs first refer to a judgment reported at AIR 2004 SC 4980 (Crystal Developers v. Ashalata Ghosh) to suggest that Hem Nolini Judah is no longer good law. The contention is unacceptable not only because a two-judge Bench in Crystal Developers could not have upset the dictum of the three-judge Bench in Hem Nolini Judah, but also as Crystal Developers does not detract from the obvious that has been stated in Hem Nolini Judah. In Crystal Developers, what fell for consideration was whether the revocation of a probate invalidated the bona fide intermediate acts performed by the grantee at the time that the grant remained valid. The court held that the revocation of the grant operates prospectively and would not render the bona fide intermediate acts as void ab initio. Clearly, the reliance on such authority is misplaced in the present context. There is a distinction between a will awaiting grant of probate and the revocation of a grant. There is good reason for such distinction. It is possible that a will is propounded and probate in respect thereof is obtained. If a property bequeathed by the will is then transferred by the executor or the legatee to a third party who acquires it bona fide, the subsequent revocation of the grant would not affect the third party’s title. It is possible that an intestate heir of the testator applies for revocation of the probate and the executor or the other legatees under the will collude in such exercise. If the third party’s title, obtained during the currency of the probate, is not protected by law, heirs or legatees of a testator may collude and undo a concluded transaction at their whim.
The judgments reported at (2006) 10 SCC 442 (Binapani Kar Chowdhury v. Satyabrata Basu) and (2009) 10 SCC 223 (FGP Ltd v. Saleh Hooseini Doctor) that have been relied upon by the plaintiffs, are more apposite in the context. Though in Binapani Kar Chowdhury the suit was filed by the testator and was sought to be continued by the executor of the unprobated will of the deceased plaintiff, it was held, at paragraph 5 of the report, that “Section 213 does not come in the way of a suit or action being instituted or presented by the executor or the legatee claiming under a Will.” The judgment proceeded to record that Section 213 “bars a decree or final order being made in such suit or action which involves a claim as an executor or a legatee, in the absence of a probate or letters of administration in regard to such a Will.” In FGP Ltd, the distinction between Sections 211 and 213 of the Succession Act was emphasised. It was observed that the vesting under a will does not take place as a result of the probate, but the property vests in the executor upon his accepting the office and the executor “derives his title from the will and becomes the representative of the deceased even without obtaining probate.”
Another judgment, reported at (2004) 7 SCC 505 (Commissioner v. Mohan Krishan Abrol), has been cited by the plaintiffs for the view expressed therein that an unprobated will can be admitted in evidence for collateral purposes in any other proceedings apart from probate proceedings. A Division Bench judgment reported at AIR 2001 Bom 224 (Ramniklal Amritlal Shah v. Bhupendra Impx Pvt. Ltd) has been placed by the plaintiffs for the twin propositions that the bar of Section 213(1) is against passing a decree and not against entertaining a suit; and, that it is permissible for an interlocutory order to be passed notwithstanding that a decree in the suit cannot immediately be made in favour of the plaintiff for want of probate.
Section 213(1) of the Succession Act uses the word “established.” It follows that the prohibition thereunder is for a right under a will being conclusively demonstrated in the absence of the will being probated. The provision does not preclude a right under a will being asserted. Upon a plaint being filed, it is a right which is merely asserted. It is only when the decree is made in favour of the plaintiff that it can be said that the right canvassed has been established. If Section 211 declares the legal character of the executor as the representative of the testator and vests the estate in the executor, it cannot be said that such vesting is suspended and there is no master of the estate till such time that the will is probated. The vesting takes place under the will upon the death of the testator, subject to the executor accepting the office, and the probate only perfects the same. The preliminary challenge of the third defendant is devoid of merit. The incidental argument of the third defendant, that till such time that the probate is granted no interlocutory order based on rights asserted under a will should be passed, is equally fallacious. If the estate is under threat and there is an immediate injunction necessary to protect it, it cannot be said that the executor cannot bring an action to seek an interim order therein till such time that he overcomes the myriad challenges that may be placed in the way of his obtaining probate of the will.
GA No. 1102 of 2011 stands dismissed without any order as to costs.
For the plaintiffs to succeed at this interlocutory stage, they require not only to, prima facie, establish the validity of the transfer of the property in favour of the third plaintiff, but also to overcome the contesting defendants’ claim based on the 1999 documents. For, if Sailabala had divested herself of the Short Street property in 1999, the mere inclusion thereof in her alleged will of November 29, 2003 would scarcely affect the previous transferee’s title thereto. Though the third defendant relies on Section 48 of the Transfer of Property Act, 1882 in such regard, the provision would not apply in the strict sense since that Act, by definition, relates only to transfers inter vivos.
The plaintiffs suggest that since no copy of the power of attorney that is said to have been executed by Sailabala in favour of the fourth defendant has been produced on behalf of the contesting defendants despite the plaintiffs’ challenge, the 1999 transaction should be disbelieved. They urge that even if it were assumed that there was a power of attorney that was executed by Sailabala in favour of the fourth defendant, it ought to have been registered. They say that since the contesting defendants do not claim that the power of attorney – assuming that there was such a document – was registered, no title could pass to the transferee since there was no valid registration thereof by virtue of Sections 32 and 33 of the Registration Act, 1908. They rely on Section 32(c) of such Act that provides that if an agent were to present a document to be registered under such Act, it is incumbent that such agent be duly authorised by a power of attorney executed and authenticated in such manner as provided later in the Act. They proceed to Section 33 of the Act that pertains to the power of attorney recognisable for the purposes of Section 32 and rely on the first limb of subsection (1) thereof. Section 33(1)(a) commands that only such power of attorney would be recognised for the purposes of Section 32 of the Act if the principal at the time of executing the power of attorney resides in any part of India to which the Act applies and a power of attorney is executed by the principal before and authenticated by the registrar or sub-registrar within whose district or subdistrict the principal resides. In support of such submission, the plaintiffs rely on a judgment reported at (2003) 10 SCC 390 (Manjunath Anandappa v. Tammanasa) for an inconsequential comment in paragraph 15 thereof that noted, in the context of a suit for specific performance of a contract, that the power of attorney in that case was not registered. It is apparent that the observation was made in the background of a claim that the power of attorney in that case had been revoked and not in support of any proposition that an agent holding an unregistered power of attorney cannot execute a deed of sale on the principal’s behalf. A judgment or a legal finding therein is an authority for the proposition that is considered therein and it is a matter of regret that a stray line, twisted out of context, is relied upon in support of an unconnected and palpably untenable proposition.
The third defendant has referred to Section 17 of the Registration Act to assert that a power of attorney is not compulsorily registrable. The third defendant points out that Sections 32 and 33 of the Registration Act figure in Part VI of that statute that relates to presenting documents for registration. The third defendant relies on judgments reported at AIR 1984 Cal 297 (Goswami Malti Babuji Maharaj v. Purushottam Lal Poddar) and (2009) 14 SCC 782 (Rajni Tandon v. Dulal Ranjan Ghosh Dostidar) to emphasise on the limited ambit of Sections 32 and 33(1)(a) of the Registration Act. In Goswami Malti Babuji Maharaj, paragraph 13 of the report unequivocally holds that if an attorney, who is authorised to execute a document that is registered, executes the same, he is treated as the executant of the document for the purpose of registration. In Rajni Tandon, the expression “person executing” in Section 32 of the Act has been interpreted to refer only to the person who actually signs or marks the document in token of his execution, “whether for himself or on behalf of some other person.”
There can be little doubt that the registration of a document does not conclusively establish its validity. Apart from the aspect of revenue that is covered in course of the registration of a document, the registration evidences the execution of the document by the executants thereof. But the presumption arising out of the registration of a document may be rebutted upon a challenge to its validity on some grounds of infirmity. There is no merit in the plaintiffs’ contention that the power of attorney relied upon by the fourth defendant for executing the sale deeds on behalf of Sailabala in 1999 should have been registered. The fourth defendant executed the documents on behalf of Sailabala; it was not as if the executant in either case had not presented the documents for registration. The fourth defendant was the executant, on behalf of the transferor, in either case and Section 32(c) does not mandate that if the executant is the agent of a party to the transaction, the power of attorney authorising him to execute the document on behalf of a party would require to be registered. There is a further technical objection to the power of attorney taken by the plaintiffs. They say that Section 28 of the Registration Act, as is relevant in the context, provides that a document affecting immovable property shall be presented for registration in the office of a sub-registrar within whose sub-district the whole or some portion of the property to which such document relates is situate. The plaintiffs refer to Section 30 of the Act and the effect of such provision following its amendment. Prior to the relevant amendment of Section 30 of the Act, sub-section (2) thereof permitted, inter alia, the registrar of a district in which a presidency town was included to receive and register any document referred to in Section 28 without regard to the situation in any part of India of the property to which the document related. Sub-section (2) was omitted from Section 30 of the Act by a West Bengal amendment that came into effect in 1997. Subsequently, there was a Central amendment that altogether removed Section 30(2) from the statute. The plaintiffs suggest that upon the West Bengal amendment coming into effect in 1997, no document affecting any immovable property in West Bengal could have been received or registered by any registrar in Mumbai. Prima facie, such argument is not acceptable. Upon the West Bengal amendment coming onto effect, no registrar of a district in West Bengal in which a presidency town was included could have received or registered a document affecting any immovable property irrespective of where the property was situate. But the registrar in Mumbai was not subject to this amendment and, notwithstanding the West Bengal amendment, the registrar in Mumbai continued to be governed by Section 30(2) of the Registration Act till it was obliterated in 2001. Since the two Mumbai documents were executed in 1999, notwithstanding the West Bengal amendment, there does not appear to have been any infirmity in the Mumbai registrar receiving and registering the same.
Though the power of attorney, or a copy thereof, has not been produced, the fourth defendant says in his affidavit that the third plaintiff was the broker in the transaction covered by the documents of 1999. At paragraph 6(e) of his affidavit, the fourth defendant claims that the power of attorney executed by Sailabala in the fourth defendant’s favour was made over by him to the third plaintiff “after execution and registration of the conveyances in Mumbai.” As to the fourth defendant indicating his address in the relevant deeds executed in 1999 to be 27, Madan Mitra Lane, he says in his affidavit that such address was the residential address of the Sein family and it was used under instructions of both the principal and the fifth defendant herein.
It is here that the fifth defendant – against whom no relief has been sought in the plaint - and his alleged role in the transaction of 1999 have to be noticed. Paragraph 14 of the plaint announces that the plaintiffs came to know of the “false and fraudulent Mumbai deeds … for the first time on or about 30th June, 2010, when they obtained certified copies thereof.” The certified copies of the deeds have been appended to the plaint and they reveal (at pages 99 and 115 of the petition relating to GA No. 1102 of 2011) that they were obtained in late July, 2010 by the fifth defendant. The fifth defendant is the father of the first and second plaintiffs and a son of Sailabala’s husband’s brother. The third defendant in its affidavit has relied on a document of May 17, 1999 that appears to be a receipt issued by Sailabala, acknowledging the payment of a sum of Rs.9.5 lakh by the third defendant in respect of the sale of the Short Street property. The receipt suggests that a demand draft and another cheque, making up the total amount, were paid to Sailabala’s “nephew Dwarka Nath Sen.” It also suggests that Sailabala undertook to send “my constituted attorney Sibaji Banerjee (the fourth defendant) to Mumbai for registration of the conveyance deed …” The document also appears to have been signed by the fifth defendant and suggests that the fifth defendant read over and explained the contents thereof to Sailabala.
The fifth defendant has disowned the document. At paragraph 6 (h) of his affidavit he has complained that the original document was not made available for inspection despite his demand and has recorded that such alleged receipt and various other documents relied upon by the contesting defendants have been fabricated by them. As to the payment of Rs.9.5 lakh that is referred to in the document, the fifth defendant says at paragraph 4 of his affidavit that such sum was paid by one Dilip Das to the fifth defendant “in respect of a personal sale transaction of mine wherein (I) sold some items of personal jewellery to one Dilip Das …” In support of such contention, the fifth defendant has relied on a writing said to have been made on May 12, 1999 and alleged to have been signed by Dilip Das acknowledging the receipt of certain ornaments against payment of Rs.9.5 lakh. It is obvious that either the document of May 17, 1999 relied upon by the contesting defendants is a manufactured document or the letter said to be dated May 12, 1999 relied upon by the fifth defendant has been fabricated. The two cannot coexist and be genuine. On the contesting defendants’ part, it is insinuated that the third plaintiff being the broker in the 1999 transaction had retained the original documents that the contesting defendants have relied on and the third plaintiff has caused the fifth defendant to take the stand that he has with knowledge that the original documents cannot be produced by the contesting defendants. There are two features that strike as odd in the fifth defendant’s version. A part of the payment of Rs.9.5 lakh was by a cheque apparently issued by the third defendant, but the fifth defendant claims to have received the payment from Dilip Das. Doubtless, such matter will fall for assessment at the trial. The other aspect is that the fifth defendant says that Dilip Das “is now claiming to be the Director” of the third defendant. There is, therefore, some nexus between the payment received by the fifth defendant in 1999 and the third defendant which appears to have acquired the property under the documents of 1999.
The third defendant has relied on an undated certificate said to have been issued by the third plaintiff declaring himself as a tenant in respect of the property under the third defendant and agreeing to surrender possession thereof to the third defendant or its nominee by December 31, 2010. The third plaintiff has completely disowned the document and denied his signature thereon. But he has admitted receiving the consideration of Rs.75 lakh that is recorded therein.
The third plaintiff’s version is that he did not receive such payment from the third defendant and, at paragraph 10 (vi) of his affidavit dealing with the third defendant’s opposition, he has reserved “his right to provide further evidence to prove that Annexure “C” (to the third defendant’s affidavit) is a fabricated document …” The third plaintiff has claimed that such cheques were received by him “in respect of an independent transaction” between him and Shreeji Flat Holder Pvt. Ltd. It is of significance that Shreeji Flat Holder Pvt. Ltd is a confirming party to the deed of conveyance under which the property has been conveyed by the third defendant to the first and second defendants on September 29, 2010.
The third defendant has used a supplementary affidavit where it has relied on the plaint and the interlocutory application relating to a suit filed by one Mamta Agarwal against the third defendant where the first and second plaintiffs herein are the proforma defendants therein. Mamta Agarwal is admittedly a cousin of the third plaintiff. The plaint in such Title Suit No. 3405 of 2010 filed before the City Civil Court was verified on September 28, 2010, a day before the deed of conveyance was executed recording transfer of the property by the third defendant to the first and second defendants herein. The claim in such suit is for a declaration that the plaintiff therein is a monthly tenant in respect of the property under the first and second plaintiffs herein and for an injunction restraining the defendants therein from demolishing the building at the Short Street premises or disturbing her enjoyment of the property.
The most unusual feature of the plaintiffs’ case is that despite the plaintiffs coming to know “on or about 30th June, 2010” that the third defendant was claiming ownership in respect of the property by virtue of the documents registered in Mumbai in 1999, the third plaintiff proceeded to execute and register a deed of conveyance relating to the property in August, 2010 upon alleged payment of a substantial sum to the first and second plaintiffs. It is hardly rational for any prudent person to part with good money to acquire a property from an executor and a legatee with knowledge that the testator may not have had title to the property at the time the will was prepared. Again, in September, 2010 the third plaintiff’s cousin filed the City Civil Court suit feigning ignorance of the third defendant’s rights in respect of the property.
The prayers in the interlocutory application that have been stressed are to restrain the contesting defendants from interfering with the third plaintiff’s alleged possession of the property; and, from relying on certain documents including the two sale deeds of 1999 and the one of September 29, 2010. It cannot be appreciated as to how the first and second plaintiffs have a common interest with the third plaintiff since, by the plaintiffs’ version, the first and second plaintiffs have sold the property to the third plaintiff and have received the consideration therefor. If it is his alleged possession of the property that the third plaintiff seeks to preserve, there is no justifiable basis disclosed for any apprehension that he may be dispossessed therefrom except in accordance with law. The third plaintiff’s claim of being in possession of the property is also contrary to his cousin’s claim in the City Civil Court suit. If then, the primary purpose of the suit and the interlocutory application is to assail the deeds of conveyance of 1999 and the other of September 29, 2010, prima facie, the plaintiffs have not been able to make out any case. The document of transfer executed by the third defendant in favour of the first and second defendants has been challenged only on the ground that the third defendant had no title to pass on to the others. The third defendant’s previous claim to the property has been questioned primarily on the ground of the perceived infirmity in the power of attorney executed by Sailabala in favour of the fourth defendant. The challenge to the documents of 1999 on the grounds urged under the Registration Act appears, prima facie, to be devoid of substance. It would matter little then if the alleged will of Sailabala is probated; for the probate Court would then merely endorse the validity of the execution of the document but would have no authority or occasion to decide on the testator’s title to a property bequeathed under the will.
GA No. 778 of 2011 is dismissed with costs of 1000 GM to be paid to the West Bengal State Legal Services Authority within a fortnight from date and further costs of 5000 GM to be paid to the first and second defendants if the suit fails.
This is a matter where the court should reserve its authority to deal with the parties for filing false affidavits, after the trial is concluded. Whether it is the plaintiffs’ or it is the contesting defendants’, one version is utterly dishonest and the court should not allow such a dishonest stand to be taken before it without taking the recalcitrant party to task after the trial is concluded. A copy of this order should be appended to the original plaint that will be placed before the trial court for appropriate action to be taken upon the culmination of the suit.
Urgent certified photocopies of this judgment, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(Sanjib Banerjee, J.)
