KIRAN WADAN BHAGAT Vs. TARUN AICH

JUDGEMENT

(1.) The applicants have filed this application under Section 263 of the Indian Succession Act, 1925, (in short, the Act of 1925) praying for revocation of the probate granted by this Court on July 14, 2017 in respect of the Will dated November 20, 2002 by late Kiran Wadan Bhagat (hereinafter referred to as "the said Will") in PLA No.143 of 2016. The ground urged in this application is that the alleged executor obtained the probate of the said Will without serving prior notice or citation upon the applicants who are the interested parties in the estate of said Kiran Wadan Bhagat, since deceased.

(2.) According to the applicants one Lajpat Rai Bhagat, since deceased was the absolute owner and in possession of 7 bighas of land with the building and structures thereon appertaining to Municipal Holding No.368, under Ward No.1 of Panihati Municipality recorded in C.S. Dag Nos. 3387, 3388, 3389 and 3391 of C.S. Khatian No.59 of Mouza Sukhchar, J.L. No.9 within P.S.-Khardah in the District of North 24- Parganas (hereinafter referred to as "the said property"). On January 19, 1974 the said Lajpat Rai Bhagat died intestate leaving behind his wife Jagjit Bhagat, three sons namely, Kiran Wadan Bhagat, Ravi Wadan Bhagat, Laj Wadan Bhagat (hereinafter referred to as Kiran Wadan, Ravi Wadan and Laj Wadan, respectively) and only daughter Hemi Kapoor. Subsequently, Jagjit Bhagat also died intestate, leaving behind her aforesaid three sons and only daughter. Hence, each one of the three sons and the only daughter of the said Lajpat Rai Bhagat and Jagjit Bhagat became one-fourth owner in respect of the said property. On February 6, 2005 Kiran Wadan, the eldest son of Lajpat Rai Bhagat and Jagjit Bhagat, died leaving behind his only son Ajay Bhagat and four daughters, namely Anita Singh, Sunita Singh, Kabita Singh and Debika Dhirani as his heirs and legal representatives. The wife of Kiran Wadan, namely Shila Bhagat pre-deceased her husband. By a registered power of attorney dated June 20, 2005 the said Anita Singh, Sunita Singh, Kabita Singh and Debika Dhirani (hereinafter collectively referred to as "the daughters of the deceased testator") appointed their brother Ajay Wadan (hereinafter referred to as "Ajay Wadan") as their lawful and constituted attorney with all power and authority to transfer their respective share in the said property. By a registered deed of conveyance dated July 5, 2005 the said Ravi Wadan himself and Ajay Wadan, for himself and as the constituted attorney of his four above named sisters transferred one half share in the said property to the applicants, whose names have since been duly recorded in the L.R. records of rights in respect of the said property, as well as in Municipal register. The applicants also claim to be in possession of the said property. By a registered deed of conveyance dated December 5, 2012 even Laj Wadan, transferred his undivided one-fourth share in the said property in favour of three companies controlled by the applicants namely Shreebhumi Realcon Private Limited, High View Towers Private Limited, Ananddhara Properties Private Limited, Execelline Realty Private Limited and Sun Heaven Builders Private Limited, respectively. By a further registered deed of conveyance dated March 15, 2013 the Smt. Hemi Kapoor also transferred her undivided one-fourth share in the said property to three companies, of which the applicants claim to be the directors. It is alleged that on August 01, 2017 the applicant no.2 received an envelope from one Narayan Chandra Sarkar, containing a copy of the Original Side Cause List of this Court published for July 14, 2017 wherefrom he found the name of Kiran Wadan appearing as Item No.8 under the non-contentious business (for final disposal). The applicant no.2 having failed to understand what the matter was, immediately contacted the other applicants and all of them instructed an advocate to make enquiry and take proper steps in the matter. The applicants have named the said advocate who upon necessary enquiry informed them that one Tamal Sarkar as executor of a purported Will alleged to have been executed by late Kiran Wadan on November 20, 2002, had applied for probate of the said Will by this Court and had obtained probate of the said Will. Based on the advice given by the said advocates the applicants have filed the present application seeking relief as already mentioned above.

(3.) The applicants have asserted that by the said deed of conveyance dated July 5, 2005 the brother of late Kiran Wadan, that is, late Ravi Wadan and the sons and daughters of late Kiran Wadan sold and transferred their one-half share in the said property. It has been claimed that the property mentioned in the said deed of conveyance dated July 5, 2005 and that mentioned in the said alleged Will of the Kiran Wadan, since deceased, which has been probated by this Court are same. Shri Narayan Chandra Sarkar, the father of the executor of the said alleged Will of Kiran Wadan, since deceased has filed a suit, being Title Suit No.171 of 2016, before the learned Civil Judge (Junior Division), 4th Court at Sealdah, against the present applicants claiming, inter alia, a declaration that the deed of conveyance dated July 5, 2005 executed by Ravi Wadan and the daughters of Kiran Wadan in respect of the said property is null and void and not binding upon him. By virtue of the probate granted by the learned District Delegate at Barrackpore, District North 24-Parganas of a Will of Ravi Wadan he is the owner of the said suit property and that the deed of conveyance dated July 05, 2005 execute by Ravi Wadan, since deceased, and the proforma defendant nos.4 to 7 (the daughters of Kiran Wadan and the wife of Ajay Wadan ) is null and void and not binding upon him. The applicants have disclosed an undated letter issued by the advocate of Tamal Sarkar addressed to the applicant No.1 alleging that the deed of conveyance executed by the said Ravi Wadan and the heirs and legal representatives of Kiran Wadan on July 5, 2005 is a false, fabricated and manufactured deed. According to the applicants, inasmuch as the said deed of conveyance dated July 5, 2005 the Ravi Wadan and the heirs and heiresses of Kiran Wadan had sold and transferred their undivided one-half share in the said property to them, the said Will dated November 20, 2002 could not have been made by the said Kiran Wadan , since deceased. It is claimed that before filing of the probate application, PLA No.143 of 2016 the executor of the said alleged Will was fully aware that the applicants are deeply interested in the estate of the deceased Kiran Wadan, and as such, they were entitled to receive of the said probate application. Had this Court been properly appraised of the above facts granted probate of the said alleged Will of Kiran Wadan would not have been granted behind back of the applicants and without issuance of citation to each of them. The executor of the said Will is alleged to have fraudulently obtained the grant of probate of the said Will intending to unlawfully deprive the applicants of their exclusive ownership of the said property, forming part of the estate of the said deceased, Kiran Wadan. The applicants have asserted that in the present case there exists just and sufficient cause that warrants revocation of the grant of probate of the said alleged Will of Kiran Wadan.