SANT AGARWAL Vs. RABI SINHA

JUDGEMENT

(1.) The Court : This G.A. No.648 of 2017 has been filed by the defendant Rabi Sinha praying for a direction for recalling of plaintiff's witness Sant Agarwal for further cross-examination by the defendant's counsel on the specific points as prayed for in the petition. According to the defendant/petitioner, the specific points are mentioned in paragraph 10 of the petition affirmed by Rabi Sinha on 22nd February, 2017. Paragraph 10 of the said petition is set out below :

(2.) examination to Mr. Sant Agarwal relates to execution and signing of blank documents described hereinbefore between Akhilesh Kumar Sinha and Radha Rani Sinha on the one hand and Smt. Saroj Agarwal on the other hand and handing over of Rs.2 Lakh 50 Thousand by way of premium towards tenancy right granted in favour of the said two Agarwals in respect of premises No. FD 347, Salt Lake City, Kolkata - 700091 and certain related questions which are extremely vital." Before dealing with the petition filed by the defendant for the purposes as aforesaid, it is required to deal with the rival claim of the plaintiff and defendants in short.

(3.) Plaintiff, Sant Agarwal, filed P.L.A. 189 of 2002 praying for probate of the last Will of Dr. Akhilesh Kumar Sinha. Probate petition was filed on 24th June 2002. Defendant filed caveat on 20th August, 2002. According to the plaintiff, 'Will' was executed on 24th December, 1987. In the said Will the testator appointed Sant Agarwal and failing him Shri Mohabir Prasad Agarwal, as executors and trustees of the Will. The said Sant Agarwal is the propounder in this proceeding. The present proceeding relates to the probate of Dr. Akhilesh Kumar Sinha. In the Will it has been mentioned that the testator bequeathed all his right, title and interest in the property to Smt. Saroj Agarwal, wife of Shri Sant Agarwal and Smt. Asha Agarwal, wife of Shri Mohabir Prasad Agarwal. From the declaration of assets affirmed by Sant Agarwal on 10th June, 2002 it appears that undivided one-half share in the first floor of a three-storied building and the undivided share of the land proportionate thereto being Plot No.347, Block F.D., Sector - III, Salt Lake City, Kolkata - 700091 is the subject matter in the Will. The defendant Rabi Sinha has disputed the genuineness of the Will. He said that the Will was not executed by his father and the signature must have been procured by practicing fraud by Sant Agarwal, alleged executor and his advocate. He has also raised other points with regard to the genuineness of the Will. In the affidavit it has been mentioned that his father was not aware of the contents of the purported Will inasmuch as there was no reasons as to why his father would bequeath valuable properties to Smt. Saroj Agarwal and Smt. Asha Agarwal who were subsequently, allegedly, inducted as tenants. The purported tenancy agreement is also a product of fraud and such agreement could not be made in the year 1987 in the stamp paper purchased by S. M. Soni, advocate, on September, 30, 1988. Besides the purported tenancy agreement, it would be evident that the same is also a fraudulent one as the same would be corroborated from paragraph 1 thereof. It has been mentioned that from a plain reading of the said purported tenancy agreement it would be evident that entire first floor measuring 1,600 square feet was allegedly let out on rent of Rs.1,250/- per month and the purported rent was to be adjusted from the interest @ 6% per annum to be accrued on the non-refundable advance of Rs.2,50,000/- only. According to him, purported tenancy agreement was obtained for a period of 99 years and for which no consideration for payment of rent inasmuch as non- refundable advance never carries interest and it is absurd to suggest that same would be adjusted towards rent. In other words after about 16.6 years the tenants would enjoy the demised premises without paying any occupation charges. According to him, purported tenancy agreement for 99 years being the effect of a lease, the same is non-est being not registered as provided in Transfer of Property Act . He has stated that he would take necessary steps for eviction of Smt. Saroj Agarwal and Smt. Asha Agarwal, alleged tenants. According to the caveator, purported Will is an unnatural one and is a product of fraud which will be corroborated from the fact that so long his mother was alive no application for probate was made inasmuch as the testator had no absolute right to bequeath the property which would be evident from rate tax bills issued by Bidhan Nagar Municipality in the name of Akhilesh Kumar Sinha and others.