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Unknown vs Smt. Soumi Majumdar & Anr on 27 September, 2019

IN THE HIGH COURT AT CALCUTTA

TESTAMENTARY INTESTATE JURISDICTION

ORIGINAL SIDE

TESTAMENTARY SUIT NO.15 OF 2016

IN THE GOODS OF :
REBA MITRA (DECEASED)
AND
SHARAD SUBRAMANYAN ANR.
… Plaintiff

-Versus-

SMT. SOUMI MAJUMDAR ANR.

… Defendants

BEFORE:

THE HON’BLE JUSTICE SAHIDULLAH MUNSHI

September 27, 2019.

Mr. Probal Mukherjee
Mr. Prasun Kumar Dutta
Mr. A. Mitra
Mr. Amit Agarwalla
Ms. Mousumi Singha

Mr. Joy Saha
Mr. Nilay Sengupta
Mr. D. Bhattacharyya
Ms. Swati Agarwal
Ms. Sayanti Nandi

… For the plaintiff
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The Court : This suit arises out of P.L.A. 325 of 2001 filed by

the executors of the alleged last Will and Testament of the deceased

seeking grant of probate of the said Will executed by the deceased on

21st October, 1992 and Codicil to the said Will executed on 21st June,

1998.

Pursuant to leave granted by this Hon’ble Court vide its order

dated 14th May, 2013, caveat was permitted to be filed and in support

of such caveat affidavit was also filed by the defendants Soumi

Majumder and Shantanu Bose on 26th July, 2013, as a result of

which the probate application became contentious and P.L.A. 325 of

2001 has been converted into Testamentary Suit. Probate application

(now converted into plaint) disclosed that the deceased Reba Mitra, a

Hindu governed by the Dayavaga School of Hindu Law, died testate

on 27th November, 1998 leaving behind a Will dated 21st October,

1992 being her last Will and Testament in English language and

character. The said Will was registered with the Registrar of

Assurances, Calcutta on 21st October, 1992. The deceased also

executed a Codicil of the said Will on 21st June, 1998. According to

the deceased Will and Codicil is proved by the affidavit of Dr. Lalit

Kumar Ajitsaria one of the attesting witnesses to the said Will and

Codicil. The deceased appointed the plaintiffs and one Lily Rama

Subramanyan as the executors of her said Will. The said Lily

Ramasubhramanyan, however, expressed her non-willingness to join

the application for probate and has renounced her executorship.

Particulars of the properties of the deceased has been set out in the
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affidavit of assets formed on 18th September, 2001 and has been filed

with the probate application. The deceased died without any issue

and her husband predeceased her. Therefore, there is no legal heir

left by the deceased as per SectionHindu Succession Act, 1956. In such

circumstances the executrix/plaintiffs prayed for grant of probate of

the Last Will and Codicil of the deceased above named with effect

throughout the Union of India.

The caveators in their affidavit of caveat contended inter alia

that one Kamal Kumar Mitra (since deceased) was fully ceased,

possessed and/or sufficiently entitled to the immovable properties

being premises no. 13/1, Promotesh Barua Sarani, (formerly known

as Ballygunge Circular Road) Kolkata- 700019, during his life time,

entered into agreements dated 22.05.1988 with T.K.

Ramasubramanyan thereby creating a tenancy in respect of the

ground floor flat, a further agreement dated 1st November, 1988 with

Sharad Subramanyan to provide the tenants the fittings and fixtures

in the ground floor at a monthly charge of Rs.750/- and on 24th

February, 1989 a third agreement was executed by and between

Kamal Kumar Mitra (since deceased) and the said Sharad

Subramanyan following thereto a fourth agreement on 28th April,

1989 with one T.K. Ramasubramanyan (HUF) by virtue of which the

former agreed to create a lease in respect of the whole of the terrace

of the first floor of the said property at 13/1, Promotesh Barua

Sarani, Kolkata- 700019 to enable the latter to construct at his own

cost additional floor. The said agreement was for a period of 21 years,
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commencing from 1st April, 1989 with a clause for renewal for a

further period of 21 years after expiry of every period of 21 years.

On 19th March, 1991 Kamal Kumar Mitra executed his Last

Will and Testament under which he appointed his wife Reba Mitra

(since deceased) as executrix and on her death, said Sharad

Subramanyan, Subir Kumar Deb and Smriti Kumar Bose (since

deceased) would be the executors of his estates. Under the said Will,

Kamal Kumar Mitra had given all his movable properties to his wife,

Reba Mitra with limited right of life interest therein, that is, the

property comprised in premises no. 13/1, Promotesh Barua Sarani

hereinafter to be called the ‘said property’ which is included in the

affidavit of assets filed by the plaintiffs in the present probate

application.

Kamal Kumar Mitra died intestate on 26.09.1991 and on his

death, Reba Mitra the executrix named in the said Will applied for

grant of probate under Testamentary Suit no. 88 of 1993 filed before

the Hon’ble High and the probate of the said Will was granted to her

vide order dated 14th May, 1993. Certain dates in this proceeding are

very important to take note of and the events on such dates are

undisputed. In fact, these dates have been incorporated and filed

before this Court at the time of hearing by the defendant in their

compilation. The said dates are set out below:

LIST OF DATES :
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Date Particulars

19.03.1991. Kamal Kumar Mitra who was absolute owner of the

property being the premises No.13/1, Promotesh Barua

Sarani, Kolkata – 700020 (hereinafter referred to as

“the said property”) executed a Will bequeathing his

all moveable and immoveable assets including the said

property. Under the said Will, all moveable properties

were given to his wife, Smt. Reba Mitra absolutely. She

was given only life interest in the said property. Reba

Mitra was appointed as sole executrix. If Reba Mitra

predeceases him or after her death, Sharad

Subramanyan, Subir Kumar Deb and Smriti Kumar

Bose were appointed executors. It was further stated in

the said Will that on the death of Reba Mitra, the said

property would be given to Smt. Sabita Bose, Smt.

Latika Deb and Sri Biswajeet Mullick each having

undivided one third share therein.

26.09.1991 Kamal Kumar Mitra died testate.

28.11.1991 Reba Mitra executed lease deed in respect fo the

second floor of the said property in favour of the

Subramanyans’ Hindu Undivided Family at a monthly

rent of Rs.2,000/-. The total period of the lease was for

126 years.
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21.10.1992 Smt. Reba Mitra executed lease deed in respect of the

first floor of the said property in favour of Taxation

Services Syndicate Pvt. Ltd. for a term of 99 years with

an option to the lessee for renewal for another term of

99 years at a monthly rent of Rs.2,000/-. The lessee

company was controlled by Subramanyans.

21.10.1992. Smt. Reba Mitra executed a Will in which Sharad

Subramanyan was the executor.

14.05.1993. Smt. Reba Mitra executed Second Will in which

Subramanyans were not appointed executors.

14.05.1993 Reba Mitra applied for grant of probate with a copy of

the said Will under the Testamentary Suit No. 88 of

1993 before the Hon’ble Calcutta High Court and the

same was granted on 14.05.1993. A Xerox copy of the

probated Will is annexed hereto and marked with the

letter “A”.

30.05.1996. Sabita Bose, one of the beneficiaries in the Will of

Kamal Kumar Mitra died intestate leaving her surviving

her daughter and son, Smt. Soumi Majumdar and Sri

Santanu Bose respectively.

14.12.1997 Reba Mitra executed a Third Will in which

Subramanyans were not appointed executors. This Will

was probated on 17th August 2001 by the District
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Judge at Alipore in case No: 312 of 1998.

21.06.1998 Smt. Reba Mitra executed a codicil to the Will dated

21.10.1992.

27.11.1998 Smt. Reba Mitra died testate.

15.12.1999 The Hon’ble Single Bench of this High Court passed

and orders in Testamentary Suit No. 88 of 1993 to the

16.02.2000 following effect:

1. Existing executors including Sharad

Subramanyan were discharged.

2. Sharad Subramanyan has no right to continue in

the possession of the first floor.

3. Swarup Kumar Ghoshal, Advocate was appointed

as Administrator-pendente-lite.

4. Sharad Subramanyan was directed to deliver up

possession of the first floor.

Copies of the said orders are annexed hereto and

collectively marked with the letter “B”.

28.06.2000 Sharad Subramanyan being aggrieved by the aforesaid

orders, preferred an appeal before the Division Bench

being G.A. No.4873 of 1999. The Hon’ble Division

Bench by its order and judgment dated 28.06.2000
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held that the life interest created in favour of Reba

Mitra cannot be enlarged into absolute right over the

property. It was also held that there cannot, however,

be any doubt that Reba Mitra having life interest, she

cannot confer a right upon a third party which would

extend beyond her own interest. The copy of the said

order is attached hereto and marked with the letter

“C”.

28.04.2006 Sharad Subramanyan, being aggrieved by the aforesaid

order preferred a SLP before the Hon’ble Supreme

Court which was eventually numbered as Civil Appeal

No. 4153 of 2002. The Supreme Court by its judgment

dated 28.04.2006 held as follows:

1. That there was no material on record from which

it could be concluded that disposition of the life

interest in favour of Reba Mitra in the Will of her

husband K.K. Mitra, was in lieu of or in

recognition of her right of maintenance.

2. Consequently, agreed with the finding of the High

Court that Reba Mitra had only a limited right,

namely, life interest in the suit property. Thus,

she could not have created a long-term lease as

she has purportedly done.
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A copy of the said judgment is annexed hereto and

marked with the letter “D”.

2007 Subramanyans through Taxation Services Syndicate

Pvt. Ltd. filed an application being the G.A. No: 3908 of

2007 in the aforesaid PLA No. 88 of 1993 for seeking

revocation of the probate granted to the will of Kamal

Kumar Mitra on the ground that it has a caveatable

interest in the said grant. It also filed an application for

condonation of delay under Section 5 of the Limitation

Act, 1963.

19.03.2008 The Hon’ble Single Bench by its order and judgment

dated 19.03.2008 dismissed the said application. It

was held that the entire process that culminated in the

conclusion of the lis by the Supreme Court order would

be undone and reopened for fresh adjudication, if the

delay is condoned. Even if the petitioner is permitted to

take the challenge forward, it can progress no more

upon it being recognized that the only possible issue

has been conclusively pronounced by the Supreme

Court. The copy of the said order is annexed hereto

and marked with the letter “E”.

25.09.2008 Taxation aggrieved by the aforesaid order, preferred an

appeal being A.P.O.T. No: 164 of 2008 before the
10

Hon’ble Division Bench of this High Court. The Hon’ble

Division Bench by its judgment and order dated

25.09.2008 dismissed the appeal. The copy of the said

order is annexed hereto and marked with the letter

“F”.

24.08.2009 Taxation being aggrieved by the aforesaid order of the

Division Bench, preferred a Special Leave Petition being

S.L.P. (Civil) No. 18963 of 2009 before the Hon’ble

Supreme Court. The Hon’ble Supreme Court dismissed

the said S.L.P. at the very threshold. A copy of the said

order is annexed hereto and marked with the letter

“G”.

23.06.2008 Smt. Soumi Majumdar and anr. made an application in

the P.L.A. No.88 of 1993 for the following reliefs:

1. Discharge of the administrator-pendent lite;

2. Smt. Soumi Majumdar and Smt. Latika Deb,

both beneficiaries under the Will of K.K. Mitra be

appointed as joint administrators to complete the

administration and to issue assent to legacy.

Sharad Subramanyan opposed the said application.

After hearing, the Hon’ble Single Bench was pleased to

grant the aforesaid reliefs and rejected the opposition of

Sharad Subramanyan. The Xerox copy of the order
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dated 23.06.2008 is annexed hereto and marked with

the letter “H”.

03.09.2008 Sharad Subramanyan being aggrieved by the aforesaid

order preferred an appeal being A.P.O.T. No. 326 of

2008 before the Hon’ble Division Bench. The Hon’ble

Division Bench by its judgment and order dated

03.09.2008 dismissed the said appeal. The Hon’ble

Division Bench held that the Hon’ble Supreme Court

by its judgment dated 28.04.2006 passed in the

aforesaid Civil Appeal No. 4153 of 2002 had finally

decided that Reba Mitra being life interest holder could

not have any interest in the said property beyond her

lifetime. The Xerox copy of the said order is annexed

hereto and marked with the letter “I”.

2006-2009 The aforesaid legatees to the Will of Kamal Kumar

Mitra sold their respective shares in the said property

to Luxmi Housing Pvt. Ltd. by executing separate deeds

of conveyance.

2012. Subramanyans filed three separate suits being Title

Suits Nos. 9011, 9017 and 9022 of 2012 before the

Civil Judge, Senior Division at Alipore. In the said

suits, Subramanyans challenged the assent to legacy

and transfer of the said property by the legatees of K.K.
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Mitra to Luxmi Housing Pvt. Ltd. on the plea that the

life interest of Reba Mitra in the said property has

become full fledged interest by virtue of Section 14(1) of

the Hindu Succession Act, 1956 and the same cannot

be decided in the Testamentary Suit.

17.08.2013 The said Luxmi Housing filed applications under order

VII Rule 11 of C.P.C. for rejection of the plaints and

dismissal of the aforesaid suits. The learned Trial Court

rejected the said application by its order dated

17.08.2013.

31.07.2015 The said Luxmi Housing being by the aforesaid order of

the learned Trial Court, preferred revisional application

before the Hon’ble Calcutta High Court being C.O.

No.4175, 4176 and 4177 of 2013. After contested

hearing, the Hon’ble Single Bench was pleased to reject

the plaints and dismiss the aforesaid Title Suits. The

Xerox copy of the said judgment and order is annexed

hereto and marked with the letter “J”.

15.01.2016. The Subramanyans being aggrieved by the aforesaid

order dated 31.07.2015, preferred 3 separate Special

Leave Petitions being S.L.P. Nos: 32446, 32556 and

32963 of 2015. The Hon’ble Supreme Court by its order

dated 15.01.2016 dismissed the said S.L.Ps. The Xerox
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copy of the said order is annexed hereto and marked

with the letter “K”.

On the given fact this Court settled following issues by an order

dated 22nd November, 2016 :

i. Whether Sharad Subramanyan one of the named

executors is entitled to the grant of probate of the

last Will and Testament dated 21st October, 1992

and the Codicil dated 21st June, 1998 of the

deceased?

ii. Whether Reba Mitra (since deceased) had right title

and interest to bequeath premises No. 13/1,

Promotesh Barua Sarani, Kolkata- 700019 through

the subject Will, contrary to the terms of the

probated Will of its original owner Kamal Kumar

Mitra (since deceased)?

iii. To what other reliefs, if any, the petitioner is

entitled to?

When the issues were settled G.A. No. 2804 of 2016 which was

an application filed by the defendants claiming that a particular

premises would not have been dealt with by the testatrix in her Will,

was also considered by the Court and in consideration of the

proposition made under the decision rendered by the Hon’ble Apex
14

Court in the case of Jayamma -Vs. – Maria Bai dead by proposed

LRS. and Anr. reported in (2004) 7 SCC 459, in support of the

proposition that a probate Court can look into the title of the

testator/testatrix as the case may be, was kept open to be decided at

the time of final hearing of the suit.

So far the first issue whether probate of the last Will and

Testament dated 21st October, 1992 and the Codicil dated 21st June,

1998 can be granted, Mr. Probal Mukherjee learned Advocate for the

plaintiff submitted that the Will has been proved by the attesting

witness to be genuine and executed by the deceased which can never

be shrouded with any suspicious circumstances. The first witness

appeared in support of the probate application was Probal Kanti

Purkayastha in answer to question no. 28 categorically said that he

and Dr. Lalit Kumar Ajitsaria were present when the deceased

executed and/or signed the Will along with the people from the Office

of the Registrar. In answer to question nos. 11, 18 to 25 the said

witness deposed about the factum of execution of the Will. The

witness had also identified the signatures of Reba Mitra on the Will.

In answer to question nos. 29, 30 and 31 the witness deposed that

the deceased was physically and mentally fit at the time of execution

of the Will. According to Mr. Mukherjee the Will thus has been proved

by the said witness. Mr. Saha appearing for the defendants, however,

submitted that although, Dr. Ajitsaria was the common witness for

both the documents namely, the Will and the Codicil was never called

as a witness to prove those documents and according to him this is a
15

suspicious circumstance and the reason has not been explained away

by the propounder. According to Mr. Saha this is sufficient ground to

refuse grant of probate, if the propounder fails to explain away the

doubts and suspicion from the minds of the Court.

It is apparent on record that although, caveat was allowed to be

filed and affidavit in support of caveat has been filed by the defendant

no question was raised about the genuineness of the Will. In cross-

examination of the said witness no.1 for the plaintiff no question was

put about the genuineness of the Will, testamentary capacity of the

testatrix, about the mental and physical condition of the testatrix. No

question either has been put about the existence of any suspicious

circumstances. However, the trend of cross-examination by the

defendant appears to be mainly to the challenge about the propriety

of the execution of the Will in respect of the property comprised in

13/1, Promotesh Barua Sarani (formerly known as Bullygunge

Circular Road) Kolkata-700019. The defendants challenge the

capacity of the testatrix to include the said property which does

belong to her at all and which fact has been established in successive

litigations right up to the Highest Court of the land that the deceased

had no better interest than her limited right over the said property

during her lifetime and that the Courts have repeatedly decided that

her such limited interest over the property cannot be enlarged to be

an absolute interest thereon. The defendant’s attack is based on

these undisputed finding of this Hon’ble Court and the Hon’ble Apex

Court. However, this question is to be decided at the time when I will
16

deal with issue no.2 and the issue raised in the application being

G.A. no. 2346 of 2016 which has been kept open to be decided along

with the other issues.

The second witness of the plaintiff was Shri. Pranab Kumar

Bannerjee who is the attesting witness to the Codicil. The said

witness in answer to question nos. 4 to 14 deposed that he personally

was present at the time of execution of the said Codicil. The witness

identified the signature of the testatrix and the signature of the other

attesting witnesses on the Codicil. The witness appears to have

proved execution of the Codicil too. Cross-examination of this witness

is also on the same line as it was done in respect of the witness no.1.

The defendant has not adduced any evidence separately. Sharad

Subramanyan, one of the executors/trustees named in the Will is the

third witness and he deposed all about social life of the deceased to

show that she was highly educated and belong to a posh society. The

witness deposed that he was present at the time of execution and

registration of the Will as also at the time of execution of the Codicil.

There is, however, no cross-examination on the issue of testamentary

capacity or fraud being practiced or undue influence being exercised

or coercion being committed by the defendants. Materials disclosed

before this Court by the attesting witness as also the propounder,

does not reveal that there was any circumstances under which the

Will and the Codicil were executed are shrouded by any suspicion.

Therefore, apparently the application for grant of probate up till now
17

as I have discussed seems to be meritorious. There is yet another

aspect of this matter which I shall now discuss threadbare.

Now I shall answer issue no.2 and the issue raised in the

aforesaid application under G.A. no.2346 of 2016. While deciding

issue no.2 the question which crops up is whether the deceased had

any authority to include the property comprised in premises no.

13/1, Promotesh Barua Sarani, Kolkata- 700019, in which she had a

limited interest up to her life and by the present Will whether she can

extend such limited interest beyond her life. While deciding this issue

two things are to be taken into consideration

(1) Whether the Will in respect of which grant of probate has

been prayed for is the last Will of the deceased or not? It is however,

undisputed rather admitted by the plaintiff in their written notes filed

before this Court that a Will dated 14.12.1997 appears to have been

executed by the deceased Reba Mitra and probate has been granted.

The relevant portion in paragraph 25 of the written notes where this

fact has been narrated by the plaintiff is set out below:

“In reply, the counsel for the defendants submitted that probate

of another Will dated 14.12.1997 of the deceased was granted.

Against the said grant, the plaintiffs herein have filed an application

for revocation for grant being Revocation case no. 156 of 2004 before

the District Judge, Alipore. The learned District Judge was pleased to

stay the operation of the grant. The interim order of said operation of

grant is being extended from time to time and is continuing.”
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(ii) In a long drawn proceeding arising out of Testamentary Suit

no. 88 of 1993 initiated at the instance of the deceased Reba Mitra

before the Hon’ble High Court at Calcutta and probate was granted

by an order dated 14th May, 1993 on the Will of her husband Kamal

Kumar Mitra on the basis of his last Will and Testament dated 19th

March, 1991 where the testator Kamal Kumar Mitra mentioned in

paragraph 6 of the said Will “I could devised and bequeath my

immovable property being premises no. 13/1, Promotesh Barua

Sarani (a) to my wife Smt. Reba Mitra alone for her life (b) on the

death of my said wife Smt. Reba Mitra the executors and trustees

named and appointed herein will realize and collect the rents, issues

and profits arising out of the said property being premises no. 13/1,

Promotesh Barua Sarani and will distributed the said rents, issues

and profits in the following manner …”

In support of the contention raised on behalf of the propounder

that probate Court cannot decide title to the property under Will

following decisions have been relied on:

• Hem Nolini Judah -Vs. – Isaolyne Sarojbashini Bose

reported in AIR 1962 SC 1471;

• Chiranjilal Shrilal Goenka -Vs. – Jasjit Singh reported

in (1990) 2 SCC 507;

• Ghulam Qadir -Vs. – Special Tribunal reported in

(2002) 1 SCC 33;
19

• SectionKanwarjit Singh Dhillon -vs. – Hardyal Singh Dhillon

reported in (2007) 11 SCC 357;

• Krishna Kumar Birla -Vs. – Rejendra Singh Lodha

reported in (2008) 4 SCC 300 and

• Goods of Abha Rani Sinha, in re, (2017) 4 CHN 114

(1) The defendants in support of their contention that even if

this is the settled law that probate Court does not decide title but

there are circumstances where the Hon’ble Apex Court has held that

the Court, although, does not decide title but can definitely examine

the probability of the deceased in including a property under the Will

where prima facie the testatrix or testator is devoid of any right, title

and interest particularly, that in such a situation why the Court

should push unnecessarily an unwilling party to a complicated

course of litigation for another round of fight the result whereof would

be the same. The defendants relied on the following decisions:

• Jayamma -Vs. Maria Bai (dead by proposed LRS.)

Ors. reported in (2004) 7 SCC 459;

• Shoilesh Chandra Mustafi -Vs. Amal Chandra Mustafi

reported in AIR 1958 Cal 701;

• Atulabala Dasi -Vs. – Nirupama Devi reported in AIR

1951 Cal 561;
20

• T. Arvandanam -Vs. – T.V. Satyapal reported in (1977)

4 SCC 467 and

• K. K. Modi -Vs. – K. N. Modi reported in (1998) 3 SCC

573

The issue has been dealt with by the Hon’ble Court in Ghulam

Qadir (supra) as has been relied on by the plaintiffs. The decision

also took note of its previous decision in the case of Chiranjilal

Shrilal Goenka (supra) which is also relied on by the plaintiff in the

present case. The decision in Ghulam Qadir (supra) the Hon’ble Apex

Court held “If despite admitting the execution of the Will and

issuance of the probate, a question arises as to its effect on the

property of another person which is likely to be affected, nothing

prevents the authorities under the J K State Evacuees’

Section(Administration of Property) Act to examine the Will or the probate to

that extent. It is established in this case that when the Will was

executed and registered the executant, namely, S had become the

owner of the disputed property. The disputed property at the time of

execution of the Will, admittedly, was vesting in the Custodian under

the provisions of the Act.” The Hon’ble Apex Court in paragraph 62 of

the said decision further held “Accepting the plea of the appellant

would amount to authorizing a person to execute a Will with respect

to any property in which the executant had no right or interest

including government property like the Secretariat or Official

bungalows in favour of another person who in turn would rush to the
21

Courts for the establishment of his title in the property, on the basis

of conferment of title upon him by way of Will. Such a course is

neither permissible nor legal and in fact, is against public policy.”

The ratio decided in this case in fact, supports the contention

raised by the defendants and does not help the plaintiff at all. In the

given fact it is important for this Court not to overlook the property

which has been included in the Will as the decision in the probate

proceeding earlier arose in the High Court reached finality up to the

Apex Court holding inter alia that Reba Mitra the executrix in the

present probate proceeding had only limited interest till her death

which cannot be illusticise by any means or by giving any colour to

the said limited right.

The decision of Kanwarjit Singh Dhilan (supra) also does not

help the plaintiff rather the same goes against them. In the said

decision the appellant before the Supreme Court contended that the

bequeath which was made in favour of the respondent was not

genuine. Only a right of residence was given in favour of the widow of

Late S. Kirpal Singh and his unmarried daughter who was the

testator. Objections were filed by the appellant alleging that the Will

was forged and fabricated. However, probate was granted to

respondent no.1 by the High Court and thereafter, the matter came

before the Supreme Court which also affirmed the order of the High

Court granting probate in respect of the Will executed by Late S.

Kirpal Singh. Subsequent to the grant of probability of the Will of Late
22

S. Kirpal Singh in respect of the suit properties the appellant

instituted a civil suit for declaration and injunction wherein appellant

sought a declaration to the effect that the suit properties were Joint

Hindu Family properties. A preliminary issue was framed by the

learned Single Judge Jalandhar and dismissed the suit on a finding

that once the probate was granted by a competent Probate Court, a

Civil Court cannot have any jurisdiction to entertain the suit. The

suit was dismissed. Revision was filed before the High Court against

the said order of dismissal which was affirmed by the order impugned

before the Hon’ble Apex Court. The Hon’ble Apex Court in paragraph

8 of the said decision held “In our view, the High Court as well as the

Civil Court have acted illegally and with material irregularity in the

exercise of their jurisdiction in dismissing the suit on the aforesaid

preliminary issue by holding that after the probate having been

granted by the competent Probate Court and affirmed by this Court,

the Civil Court had no jurisdiction to proceed with the suit.”

The Hon’ble Apex Court further held “According to the High

Court, a decision of the Probate Court would be a judgment in rem

which would not only be binding on the parties to the probate

proceeding but would be binding on the whole world. Upon the

aforesaid finding, the High Court had affirmed the order of the Civil

Court holding that the suit must be dismissed in view of the fact that

Probate Court had already granted probate in respect of the Will

executed by Late S. Kirpal Singh relating to the suit properties. We

are not in a position to agree with the views expressed by the High
23

Court in the impugned order nor are we in agreement with the order

passed by the Civil Court.” Ultimately, the appeal before the Hon’ble

Supreme Court was allowed. Therefore, this decision does not help

the plaintiff.

To dwell on the proposition that it will be an absolute bar for

the Probate Court to even verify the propriety of the testator to

include a property on which he or she has no right, the next decision

in the case if Krishna Kumar Birla (supra) has been relied on by the

plaintiff and argued that a judgment rendered in a probate

proceeding is a judgment in rem. But, its application is limited. A

judgment rendered in a probate proceeding would not be

determinative of the question of title. The decision says if a probate

has been obtained by fraud or suppression of material fact, the same

can be the subject matter of revocation of the grant in terms of

Section 263 of the Succession Act, 1925. It is submitted on behalf of

the plaintiff that application for grant of probate not only binds the

parties before the Court but also binds all other persons in a

proceeding arising out of the wills or claims under or connected

therein.

Being a judgment in rem, a person, who is aggrieved thereby

and having had no knowledge about the proceedings and proper

citation having not been made, is entitled to file application for

revocation of the probate on the available grounds. The decision is

firstly distinguishable on fact and secondly, it decides a different
24

proposition. The argument which has been made on the question of

revocation does not help to succeed the present proceeding in

support of grant of probate or Letters of Administration. The decision

basically dealt with the word ‘caveatable interest’. In the present

proceeding leave was granted to file affidavit in support of the caveat

and the caveators filed their affidavits in support of their caveat

where they have brought an illustrated fact which reveals that the

property in question which has been included by the deceased

knowing fully well that she had a limited interest and further that the

earlier proceedings and that the probate proceeding at her instance

on the basis of her husband’s Will through which she got life interest

reached the highest Court of the land not once but twice. Where such

limited interest unambiguously has been explained. This decision

cannot help the plaintiff.

The last decision relied on by the plaintiff is the decision in the

case of Abharani (supra) based on this decision it was submitted by

the plaintiffs that a probate Court is to decide whether the Will in

question was the last Will of the testator and whether the same was

duly attested by at least two witnesses and whether the testator had

mental capacity to execute the Will. So far the question of verification

of the title of the deceased in respect of any of the property mentioned

in the affidavit of assets whether genuine or not and whether such a

question can be raised in any probate proceeding or not, there are

divergence of opinion both of our Courts and also of the Hon’ble Apex

Court and I have already pointed out the decision of the Supreme
25

Court in the cases of Jayamma (supra), Shoilesh Chandra Mustafi

(supra) and Abharani Dasi (supra) which have already been

indicated earlier. Even question has been raised by the defendant

that if the plaintiffs are allowed to obtain probate disregarding what

has already been decided by the Hon’ble Apex Court in respect of self-

same property in an earlier proceeding between the parties in respect

of the Will of the husband of the present testator, this will

tantamount to the abuse of the process of the Courts which is against

and shall be opposed to public policy according to our Constitution.

As rightly pointed out by the learned counsel for the defendant the

ratio of the decision in the case of T. Arvandanam (supra) that when

the issue has already been decided in a previously instituted

proceeding, if the same is allowed to be reiterated again and again

involving self-same question, it will be nothing but abusing due

process of Court. The position has been made more clear in the

decision of the Hon’ble Apex Court in K. K. Modi (supra) where the

Hon’ble Apex Court deprecated the practice to file repeated case,

although, issues have been decided earlier. In K. K. Modi (supra) the

Hon’ble Apex Court held that the same issue cannot be re-agitated in

another proceeding and if so done the same will be nothing but an

abuse of the process of law. In this regard it is necessary to mention

here the testamentary proceeding from which T.S. 88 of 1993 arose

was initiated by the present testatrix to obtain probate on the Will of

Late Kamal Kumar Mitra, her husband. In the said Testamentary Suit

no. 88 of 1993 the Hon’ble Single Judge of this Court while dealing
26

with an interlocutory application under G.A. No. 4873 of 1999 where

Sharad Subramanyan and others were parties by an order dated 15th

December, 1999, restrained the joint executors from dealing with

and/or disposing of and/or encumbering and/or parting with

possession or in any way dealing with any portion of the premises no.

13/1, Promotesh Barua Sarani, Kolkata- 700019 till disposal of the

application. In that application it was claimed that it was an absolute

estate and property of Reba Mitra who was one of the beneficiaries of

the Will of her husband Kamal Kumar Mitra in respect of which the

probate was sought for in the above mentioned suit no. 88 of 1993.

The Court observed that from the expressed provision of the Will

Reba Mitra was only a life interest holder. By a subsequent order

dated 16th February, 2000 the Hon’ble Single Bench in the said

application being G.A. no. 4873 of 1999 appointed an Administrator

pendente lite in place and stead of the executors on a monthly

remuneration.

It appears that the Hon’ble Division Bench in an appeal being
A.P.O.T no. 256 of 2000 filed by Sharad Subramanyan against the
present defendants held and ordered:

“In view of un-controverted allegations, thus, in our opinion, the
learned trial Judge rightly appointed Administration pendente
lite. However, he went wrong in directing eviction of a tenant
which was not within the purview of SectionIndian Succession Act. The
tenant can be evicted only in accordance with law. There
cannot, however, be any doubt that Reba Mitra having a life
interest, she could not confer a right upon a third party which
would extend beyond her own interest. The Joint
27

Administrators appointed by the Court may, therefore, take
steps for eviction of the tenant. Subject to the aforementioned
modifications in the impugned order, the appeal is dismissed
with costs. Counsels fee assessed at Rs.200/- Gms.”

Sharad Subramanyan filed an appeal against the said order

before the Hon’ble Apex Court and the decision thereon has been

reported in (2006) 8 SCC 1991 (SectionSharad Subramanyan -vs. – Soumi

Majumdar). Paragraphs 5, 6, 7, 8, 18, 19 20, 21, 22, 23, 24 and 25

of the Hon’ble Apex Court’s decision are set out below:

“5. On 21.10.1992, Reba Mitra executed a lease deed in
respect of the Suit Property granting certain rights to the
appellant. Reba Mitra died on 27.11.1998. The appellant
produced a Will dated 21.10.1992 claiming that he had
been granted certain rights under the Will. A second Will
dated 14.5.1993 and a third Will dated 14.12.1997 were
produced by the parties each of whom claimed that the
Will in his/her favour was the genuine Will.

6. On 17.8.2001, Reba Mitra’s Will dated 14.12.1997
was granted probate by the District Judge, Alipore. The
appellant had been appointed as one of the Executors
under the Will of Kamal Kumar Mitra. Soumi Mazumdar
and Shantanu Bose (Respondent Nos. 1 and 2,
respectively), the legatees under the said Will, by their
letter dated 16.4.1999, called upon the appellant and
Subir Kumar Deb, Joint Executors, to give assent to the
legacy under the Will of Reba Mitra, hand over vacant
possession of the first floor of the Suit Property and also
distribute all the income of the estate in terms of the Will
of the late Kamal Kumar Mitra. On 30.4.1999, Subir
Kumar Deb addressed a letter stating that he was not in
possession of any legal document and, therefore, he was
unable to execute the estate according to the Will of
Kamal Kumar Mitra. On 4.5.1999, the appellant wrote
back alleging that Reba Mitra had demised the first floor
of the Suit Property in the year 1992 in his favour. The
appellant also stated that he was going through the
various legal implications to examine the demand for
disbursement of the income.

7. On 11.10.1999, the respondent filed an application
before the High Court praying for discharge of the Joint
28

Executors, to pay to the appellant the outstanding rent,
issues and profits in respect of the Suit Property and also
to hand over its possession. On 15.12.1999, a learned
Single Judge of the High Court made an order restraining
the Joint Executors from dealing with, disposing of
and/or encumbering and/or parting with possession or in
any way dealing with any portion of the Suit Property till
the disposal of the application. On 16.2.2000, an interim
relief application taken out was allowed by the learned
Single Judge taking serious notice of the fact that the
Executors had not filed an affidavit to controvert the
allegations made against them. An appeal was filed by
the appellant before the Division Bench, which resulted in
the impugned judgment dated 28.6.2000, dismissing the
appeal. Hence, the appeal before us.

Contentions

8. Learned Senior Counsel for the appellant Mr. P.
Krishnamoorthy Iyer contended that, under Clause 6 of
the Will of the late Kamal Kumar Mitra, the Suit Property
was bequeathed to Reba Mitra for her life. Under the said
Will, after the death of Reba Mitra the Executors and
Trustees named in the Will were to collect the rent, issues
and profits in the Suit Property, and disburse it to the
persons named in Clause 6 of the Will. The contention of
the learned Senior Counsel for the appellant is that
Kamal Kumar Mitra had created a life interest in favour
of his wife, Reba Mitra, which was in recognition and
discharge of her right to maintenance from her husband.
Counsel further contends that, by reason of sub-section
(1) of Section 14 of the Hindu Succession Act, 1956
(hereinafter “the Act”), this limited interest blossomed into
an absolute interest. Consequently, he claims that Reba
Mitra became the absolute owner of the Suit Property.
Further that, Reba Mitra, during her lifetime, absolutely
owned the Suit Property and made dispositions by her
Will in favour of the appellant, which were valid and
justified. Under the Will, Reba Mitra had demised the first
floor of the Suit Property in favour of the appellant,
consequently the appellant was entitled to claim lease
right in respect of the first floor of the Suit Property. The
fact that the appellant was the Executor makes no
difference, whatsoever, to the disposition validly made by
Reba Mitra in her Will. As an Executor, the appellant had
taken no step, in any manner inconsistent with being the
Executor of Kamal Kumar Mitra’s Will, consequently the
learned counsel urged that, the High Court/learned
Single Judge was wrong in discharging the Joint
Executors and appointing an Administrator pendente lite.
29

18. Mr. Bhaskar P. Gupta, learned Senior Counsel for the
respondents, rightly distinguished all these cases, as it
was clearly proved therein, that the properties had been
given to a female Hindu, either in recognition of or in lieu
of her right to maintenance under the Shastric Hindu Law
or under the Hindu Adoption and SectionMaintenance Act, 1956.
Consequently, these were instances where the
dispositions of property, albeit as a limited estate, would
blossom into a full interest by reason of sub-section (1)
of Section 14 of the Act.

19. Learned Counsel further contended that, there is no
absolute rule that all properties demised to a female
Hindu were necessarily in recognition of or in lieu of her
right to maintenance. It was possible, even after the Act
came into force, to create a limited estate by reason of a
gift or will. Such a situation would fall within the ambit of
sub-section (2) of Section 14 of the Act as long as it was
not in recognition of or in lieu of a right to maintenance
under the Shastric Hindu Law or under a statute.
Learned Senior Counsel relied on Section 30 of the Act,
which recognises the right of a Hindu to dispose of self-
acquired property by Will. Mr. Gupta relied on the
judgment of this Court in SectionBhura and Ors. v. Kashi Ram ,
which was also a case of, limited estate conferred on a
female Hindu by a Will. This Court held that, upon a
proper construction of the Will, the bequeathal in favour of
the female Hindu was clearly indicative of:

” the testator’s intention of only creating a life
interest in her and nothing more and the various
expressions used therein are indicative of and are
reconcilable only with the hypothesis that the
testator was creating an estate in favour of (the
female Hindu) only for her lifetime and not an
absolute estate.”

20. Thus, in view of the fact that there were no
indications, either in the Will or externally, to indicate that
the property had been given to the female Hindu in
recognition of or in lieu of her right to maintenance, it was
held that the situation fell within the ambit of sub-section
(2) of Section 14 of the Act and that the restricted life
estate granted to the female Hindu could not be enlarged
into an absolute estate. Learned counsel for the
respondents relied strongly on this judgment and
contended that there was no proposition of law that all
dispositions of property made to a female Hindu were
necessarily in recognition of her right to maintenance
whether under the Shastric Hindu Law or under the
statutory law. Unless the said fact was independently
30

established to the satisfaction of the court, the grant of
the property would be subject to the restrictions
contained therein, either by way of a transfer, gift or
testamentary disposition. Learned counsel also
distinguished the three cases cited by the learned
counsel for the appellant that in each, the circumstances
clearly indicated that the testamentary disposition was in
lieu of the right of maintenance of the female Hindu. We
think that this contention is well merited and needs to be
upheld.

21. Turning to the facts of the present case, we notice
that not only was there no material to indicate to the High
Court that the property was given to Reba Mitra in lieu of
her right of maintenance, but such an argument was not
even advanced before the Court. Even the impugned
judgment of the High Court observes:

“It is not the case of the appellant that at the time
when K.K. Mitra executed the Will, his wife was
entitled to enforce her right of maintenance under
the provisions of Hindu Adoptions and SectionMaintenance
Act or otherwise. She had been undisputedly living
with her husband upon her husband’s death till the
Will was probated, she was enjoying the property as
her own. Even in terms of the Will dt. 19.3.1991 she
had a right of enjoyment in respect of the entire
property.”

22. The High Court then noticed Section 30 of the Act
which empowers a Hindu possessed of any property to
execute a Will; and confer a grant in favour of another
either absolutely or to a limited extent; even to the extent
of depriving his natural heirs from enjoying the estate left
by him. We think that the High Court was right in taking
this view. The High Court also took notice of the fact that
there was no material on record from which it could be
concluded that the disposition of life estate in favour of
Reba Mitra in the Will of her husband, Kamal Kumar
Mitra, was in lieu of or in recognition of her right of
maintenance. Consequently, we agree with the finding of
the High Court that Reba Mitra had only a limited right,
namely, life interest in the Suit Property. Thus, she could
not have created a long-term lease as she has
purportedly done.

Discharge of Executor

23. Learned counsel for the respondents then referred to
the provisions of the SectionIndian Succession Act. He urged that
under Section 301 of the Indian Succession Act: “The
High Court may, on an application made to it, suspend,
31

remove or discharge any private executor or
administrator ” and appoint another person in his place
where continuance of the executor is detrimental to the
estate of the deceased. Further it was pointed out that,
under Section 317 of the Indian Succession Act, an
executor had to make an inventory and file periodical
accounts of the estate. It is contended that the appellant
had failed to do so and was also liable to be removed
under Section 301 of the Indian Succession Act. Finally, it
is urged that the appellant as an executor had set up a
claim in the estate, which was inconsistent with the deed
of the executor and, therefore, he was unfit to function as
an executor; the High Court had rightly discharged him
from his office and appointed an Administrator pendente
lite.

Conclusion

24. From the factual circumstances, while the High
Court’s appointment of an Administrator pendente lite
appears to be correct, we need not finally decide as to
whether the appellant was unfit to act as an executor of
Kamal Kumar Mitra’s Will. We are cognizant of the fact
that the High court is still seized of the matter and the
order passed is only an interlocutory order based on
prima facie considerations. In our view, there was
sufficient justification for the High Court to make the
order for appointment of the Administrator pendente lite
to protect the estate during the pendency of the petition
before it. The question as to whether the appellant as the
executor has breached his fiduciary duty, can only be
determined at the end of the trial. In our view, therefore,
the impugned judgment of the High Court is not liable to
be interfered with.

25. We see no merit in the appeal, which is hereby
dismissed. No costs.”

Another round of litigation again started in respect of the self-

same property in matter no. 88 of 1993 and while dealing with the

applications being G.A. no. 533 of 2008 and G.A. no. 3908 of 2007 a

Single Bench of this Court passed an order on March 19, 2008 which

was set out below:
32

“The application for condonation of delay has been filed as an
afterthought and, ostensibly, by way of abundant caution. The
petitioner had proceeded before that in the conviction that there
was no delay on its part and, consequently, there was no need
to proffer any explanation as to why the prayer for revocation of
the grant of probate was not made earlier. The petitioner is a
company, of which brothers Subramanyan – Sharad and Vasant
– appear to be the effective, if not the only, shareholders. No
large corporate or business activity of the company is attempted
to be demonstrated and it appears safe to conclude that its
principal interest is in its alleged leasehold rights in respect of
the first floor of premises no. 13/1, Promotesh Barua Sarani,
Calcutta – 700019 that affords its shareholders to keep company
of distinguished occupants in a plush upmarket part of town. The
petitioner claims to be a lessee of the premises for 99 years,
obtained under a deed of October 21, 1992 executed by Reba
Mitra who as widow would have been the only intestate heir of
testator Kamal Kumar Mitra. The petitioner claims that the
testator, in fact, died intestate whereupon the entire estate
devolved upon his widow who had authority to grant the lease in
the petitioner’s favour. The petitioner relies on Reba Mitra having
executed and registered a Will in 1992 by which she appointed
Sharad Subramanyan as one of the executors and wherein she
recorded having leased out, as owner, the said premises to the
petitioner. The petitioner portrays a picture of having been
unaware of any Will of Kamal Kumar Mitra having been
discovered subsequent to the execution of the lease and of such
Will having been probated in common form. The petitioner
asserts that it was only upon letters of August 28, 2007 and
September 5, 2007 being received by it from the administrator
pendente lite to the estate of Kamal Mitra that the petitioner
came to know of Kamal Mitra’s Will. According to the petitioner,
subsequent discovery by the petitioner revealed that Kamal Mitra
was said to have executed a Will on March 19, 1991, about six
33

months prior to his death in September of that year; of the
probate being granted of such Will on May 4, 1993; and, of the
fraudulent conduct of the propounder in not citing the petitioner.
The petitioner says that as transferee of a property by the
intestate heir, the petitioner had sufficient caveatable under
Section 283 of the Indian Succession Act, 1925 to be cited. The
petitioner insists that it is, in any event, entitled to maintain an
application for revocation of the grant under Section 263 of the
Act. The petitioner argues that a valuable right acquired by it has
been sought to be set at naught behind its back and it is possible
that the entire exercise has been engineered to denude the
petitioner of its rights under the lease without the authenticity of
the Will being established in the petitioner’s presence. As to the
petitioner’s knowledge and the accrual of its right to apply, the
petitioner cites the first letter that it received from the
administrator pendente lite and suggests that the petition for
revocation of the grant has been made well within the time
afforded to such an applicant under the residuary SectionArticle 137 of
the Schedule to the SectionLimitation Act, 1963. The petitioner says that
it is only upon the litany of charges levelled against it in the
affidavit-in-opposition filed by the propounders of, or the
beneficiaries under, the Will that the petitioner thought it fit to
bring an application under Section 5 of the Limitation Act in the
event the court felt that the petitioner was required to explain the
apparent delay between the grant of probate in the summer of
1993 and its application for revocation thereof in the autumn of
2007. The legatees suggest that the present endeavour of the
petitioner is a scandalous abuse of process to give a false
impression and resurrect a lis that had been concluded in their
favour upon the Supreme Court judgment reported at (2006) 8
SCC 91 (SectionSharad Subramanyan v. Soumi Mazumdar). The
legatees assail the petitioner’s conduct, its feigned naive case
brought to court and, most prejudicially, the petitioner’s access to
all documents that had been seen, deciphered and interpreted in
34

the three earlier rounds before the trial court, the Division Bench
and the Supreme Court. The petitioner, emphasise the legatees,
is the alter ego of Sharad Subramanyan who had crudely
devised a second round of skirmish after having failed in
Calcutta and Delhi to cling on to his real estate windfall in
Ballygunge. It appears from the Will of Kamal Mitra that the
widow had only a life interest in the immovable property that
formed the major part of Kamal Mitra’s estate and it was to pass
on to the named heirs in the testator’s father’s branch of the
family. There is an attractive case that the petitioner brings as to
its right to question the grant on it not being cited but the
resolution of the present matter probably lies elsewhere than in
seeking the petitioner’s locus to assail the grant. The legatees’
indignation at the Subramanyan’s conduct is understandable.
They claim that whether it is Sharad or Vasant or the petitioner,
the court has to view all three as one entity which has been
deviously presented in a dressed-up distinction. The legatees
say that Sharad had fought tooth and nail to dislodge Kamal
Mitra’s Will and failed. In Sharad’s knowledge, the legatees
claim, the petitioner derived knowledge and it would be unfair to
subject the legatees to a fresh round of litigation on the same
substance. The Supreme Court papers have been handed up by
the legatees to show that the deed of lease of October 21, 1992
formed part of the papers and that apart from Sharad claiming a
right to challenge Kamal Mitra’s Will as one of the executors of
the widow’s Will, Sharad had espoused his company’s – the
present petitioner’s – cause in the previous round of proceedings.
According to the legatees, to recognise the petitioner’s
independent right to seek revocation of the grant of probate of
Kamal Mitra’s Will would now be a travesty of justice and the
reopening of questions that have been conclusively answered in
the legatees’ favour by superior fora. The prayer for condonation
of delay is challenged both for the unexplained period leading up
to the issuance of the letter of August 28, 2007 by the
35

administrator pendente lite and in the petitioner’s attempt at
reopening a challenge that had been scoffed at in the earlier
proceedings. The substance of the legatees’ argument is that
Sharad cannot now be permitted to don the petitioner’s hat to
launch the same challenge that he was unsuccessful at in the
previous round. The legatees insist that Sharad and the
petitioner is but the same person and refer to a document that
the petitioner has relied upon to show that notwithstanding the
petitioner’s feigned ignorance of all matters relating to Kamal
Mitra’s Will prior to receipt of the first letter issued by the
administrator pendente lite, in the petitioner’s acknowledgement
in a declaration furnished to a statutory authority that Sharad
was one of its key personnel there is admission of Sharad and
the petitioner company being one and the same. For, a corporate
person as the petitioner needs a controlling mind and Sharad
has been admitted by the petitioner to have been its controlling
mind together with brother Vasant. The document that the
legatees refer to is a declaration in Form 23AC that the petitioner
was required to file pursuant to Section 220 of the Companies
Act, 1956. The balance sheet and annual accounts of the
petitioner company for the year ended March 31, 2006 appears
to have been appended to such form. Three principal heads of
operating and administrative expenditure appear in one of the
schedules to the accounts. For the year ended March 31, 2006,
the petitioner claims to have expended Rs.1,92,000/- on account
of directors’ salary; Rs.1,92,000/- on account of managerial
salary and Rs.2,00,000/- on account of salaries and wages
including bonus. These three heads make up nearly 40 per cent
of the annual operating and administrative expenditure of
Rs.13,92,000/-. At the foot of the schedules to the annual
accounts is the disclosure that is now required to be made by a
company. Vasant and Sharad Subramanyan are shown as the
key management personnel of the petitioner. Some murmurs
have been made on behalf of the petitioner that there are
36

differences between Vasant and Sharad and that Sharad was
the majority shareholder (by one share or thereabouts) in the
petitioner company till or about the year 2002. The legatees have
also relied on the deed of October 21, 1992 and show therefrom
that at the time of registration of the document, Sharad had
presented it on behalf of the petitioner. The legatees also
question as to how the petitioner could have obtained a copy of
the certified copy of the grant of probate and the documents that
appear between pages 28 and 33 of the petition. These
documents, the legatees say, have been bodily lifted from the
papers used in the earlier round of litigation and, the prejudice
aspect aside, it would go to show that there is no real distinction
between Sharad and the petitioner. The petitioner has relied on a
judgment reported at 13 Bom LR 38 (SectionDigambar Keshav Shrotri v.
Narayan Vithal Ashtekar) for the proposition that a transferee of
a property obtained from an heir in intestacy may maintain an
application for revocation of the grant. What is held by the Full
Bench of the Bombay High Court in such decision is that there
are compulsory citations and discretionary citations. It is only
upon failure to cite a person who was compulsorily required to be
cited, that the grant would be void but the failure to cite other
persons would not be fatal. The decision reported at AIR 1932
Cal 734 (SectionNabin Chandra Guha v. Nibaran Chandra Biswas
ors.) is next cited by the petitioner where the court held that a
transferee of property from an intestate heir may oppose the
grant of probate or letters of administration. The decisions
reported at ILR 4 Cal 360 (Komollochun Dutt ors. v. Nilruttun
Mundle) and ILR 6 Cal 460 (SectionNobeen Chunder Sil ors. v.
Bhobosoonduri Dabee) are pressed into service by the petitioner
to assert the petitioner’s locus standi to maintain these
proceedings and to seek revocation of the grant. The
Komollochun Dutt case was rendered when the procedure as to
the grant of probate or letters of administration had not been
settled. This Court opined that if a person was interested by
37

assignment in the estate of the deceased, and if there was no
Will he would have a good title, such person could apply to
revoke the probate. In the Nobeen Chunder Sil case this Court
was of the view that the mortgagee-appellants would stand
substantially in the same position as the plaintiff in the
Komollochun Dutt case as the mortgageeappellants were
purchasers pro tanto and assignees of the immovable estate of
the deceased. The court also found that if such a person is
recognised to be entitled to apply to revoke the probate that has
issued, it would follow that such person may also enter caveat
and oppose the grant. But the locus standi of the petitioner to
seek revocation of the probate is a matter that needs to be
assessed after the petitioner has a look in. The petitioner refers
to the judgment of a Single Judge of this Court reported at 2003
AIHC 2148 (SectionJyotsna Rajgarhia v. Dipak Kumar Himatsingka
anr.). At paragraph 24 of the report it has been held that as to
whether an application for revocation of grant is barred by time
has to be judged on the facts obtaining in the matter. The bar of
limitation may not be applied in strict sense when it leads to an
absurd result particularly in a case where probate has been
obtained without citing a person entitled to citation and when the
fact of the probate is kept concealed for a long time. The
judgment reported at 1990 (Supp) SCC 89 (I) (L/Naik Mahabir
Singh v. Chief of Army Staff) is placed for the proposition that the
court may accept even an oral prayer for condonation of delay.
That in appropriate cases an oral prayer for condonation may be
received is not open to dispute, but in the context of a written
application having subsequently been made, the point loses all
significance in the present case. The petitioner seeks to compare
SectionArticle 137 of the Schedule to the SectionLimitation Act to SectionArticle 58
thereof. The petitioner submits that whereas in SectionArticle 137, the
expression is, “where the right to apply accrues”, in SectionArticle 58
the expression is, “where the right to sue first accrues”. The
petitioner submits that courts generally construe the grey area, if
38

there is any in the matter, in favour of the party applying for
condonation so that the merits can be addressed and the
assertion of a right is not left stillborn. The petitioner relies on the
judgment reported at (2004) 2 SCC 747 (SectionUnion of India v. West
Coast Paper Mills Ltd.) and places paragraphs 21, 26 and 41
thereof: “21. A distinction furthermore, which is required to be
noticed is that whereas in terms of SectionArticle 58 the period of three
years is to be counted from the date when “the right to sue first
accrues”, in terms of SectionArticle 113 thereof, the period of limitation
would be counted from the date “when the right to sue accrues”.
The distinction between SectionArticle 58 and SectionArticle 113 is, thus,
apparent inasmuch as the right to sue may accrue to a suitor in
a given case at different points of time and, thus, whereas in
terms of SectionArticle 58 the period of limitation would be reckoned
from the date on which the cause of action arose first, in the
latter the period of limitation would be differently computed
depending upon the last day when the cause of action therefor
arose.” “26. Despite the rigours of Section 3 of the Limitation Act,
1963, the provisions thereof are required to be construed in a
broad-based and liberal manner. We need not refer to the
decisions of this Court in the matter of condoning delay in filing
appeal or application in exercise of its power under Section 5 of
the Limitation Act.” “41. In the aforementioned cases, this Court
failed to take into consideration that once an appeal is filed
before this Court and the same is entertained, the judgment of
the High Court or the Tribunal is in jeopardy. The subject-matter
of the lis unless determined by the last court, cannot be said to
have attained finality. Grant of stay of operation of the judgment
may not be of much relevance once this Court grants special
leave and decides to hear the matter on merit.” It appears that
the Supreme Court recognises that a liberal view of the matter is
to be taken and if it is found that the right was in flux, the court
would not construe that the right to sue or apply arose when
such right remained confused or undetermined. This would
39

support the petitioner’s argument that the grey area would
belong to the party applying for condonation. Several cases have
been placed for the proposition that the knowledge of a
shareholder or even a director would not amount to the
knowledge of the company in which such person holds shares or
of which he is a director. The petitioner asserts that the
knowledge of a shareholder or a director will not bind the
company concerned unless a duty was imposed on the
shareholder or the director to inform the company. The judgment
reported at (1904) 2 Ch 608 (Young v. David Payne Co.,
Limited) is relied upon first for the purpose. A director of a
company was also interested in another company. The second
company proposed to borrow money for a purpose outside the
scope of its business objects and induced the first company to
advance the money against security. The money was applied in
the manner proposed and no other director of the first company,
except the person who was the director of the second company,
knew how the money was to be applied and that such
application was ultra vires the second company’s objects. It was
held by the Court of Appeal that such director’s knowledge ought
not to be imputed to the first company as the director owed no
duty to the first company either to receive or to disclose
information as to how the borrowed money was to be applied. In
the next case to the same effect, an earlier decision reported at
(1902) 1 Ch 507 (In re Fenwick, Stobart Co. Ltd) is placed by
the petitioner where Buckley, J. held that where a man holds a
double character, it is not necessary that he should write a letter
from himself in one character to himself to inform himself in
another character. The substance of the principle is that it would
depend upon the circumstances relating to a particular case as to
whether knowledge in one capacity would amount to knowledge
in the other. In the decision reported at (1896) 2 Ch 743 (In re
Hampshire Land Company), Vaughan Williams, J. raised the
following question: “Where is the line to be drawn, or what is the
40

test to be applied in order to say whether or not in each case the
knowledge of the common officer is the knowledge of each
company employing him?” His Lordship’s answer to the question
was that unless the common officer had some duty imposed
upon him to communicate that knowledge to the other company,
and had some duty imposed on him by the company which is
alleged to be affected by the notice to receive the notice,
knowledge of the one company would not be imputed to the other
company only by virtue of the officer with knowledge being
common to both companies. The petitioner submits that it was
not necessary for it to seek condonation of any delay as there
has been no delay on its part to bring this action. The petitioner
suggests that even if the petitioner be affixed with knowledge of
the earlier round of challenge, the time covered by SectionArticle 137
would begin to run when there is an immediate cause. The
immediate cause that the petitioner here refers to is the letter of
August 28, 2007 issued by the administrator pendente lite to the
estate of Kamal Mitra. The petitioner relies on the judgment
reported at AIR 1993 SC 136 (SectionBalwant Singh v. Gurbachan
Singh) and places paragraph 5 thereof where the Supreme Court
recognised that the time for applying in that particular case
would begin to run only when there was actual threat of
dispossession. In that case, in execution of a decree for pre-
emption on July 13, 1963 symbolic possession of certain land
was made over to the degree-holder. A declaratory suit was filed
by the judgment-debtor was decreed but no relief of injunction
was granted as the judgment-debtor continued to remain in
possession of the land. A suit for partition was filed by the
original decree-holder in 1973 claiming not only the land on
which he had obtained actual physical possession but also on
the land on which he had been granted symbolic possession. On
the objection petition under Sections 47, 151 and 152 of the
Code of Civil Procedure, the executing court rectified the mistake
and directed restitution of the land. The supreme Court held, in
41

such context, that the judgment-debtor’s right to apply
commenced when there was actual threat of dispossession, that
is on the decree-holder taking proceedings for partition in 1973
and not from the date of execution of the pre-emption decree in
1963. The judgment next placed by the petitioner is one reported
at (1999) 4 SCC 458 (SectionElectronics Corporation of India Limited v.
Secretary Revenue Department, Government of Andhra Pradesh)
where the Supreme Court construed a distinction between the
company and its hundred per cent share holder. From the days
of Salomen v. Salomen, such distinction has remained and
except in exceptional circumstances and for greater cause, a one-
man company is not equated with the company. But it does not
necessarily follow that the knowledge of the only shareholder of
a one-man company will never be the knowledge of the
company. The legatees refer to the Supreme Court judgment
rendered in the earlier round reported at AIR 2006 SC 1993
(SectionSharad Subramanyan v. Soumi Mazumdar) and particularly rely
on paragraphs 3, 5 and 6 thereof: “3. Kamal Kumar Mitra
entered into an agreement dated 22-5-1988 with T.K.
Ramasubramanyan (father of Sharad Subramanyan, hereinafter
“the appellant”) by which a tenancy was created in respect of the
ground floor flat of certain premises situated at 13/1,
Promothesh Barua Sarani, Kolkata (hereinafter “the suit
property”) at a monthly rental of Rs.5000. A further agreement
dated 1-11-1988 was made between Kamal Kumar Mitra and
the present appellant Sharad Subramanyan for providing to the
tenants the fittings and fixtures on the ground floor at a monthly
charge of Rs.750. On 24-2-1989, there was a third agreement
between Kamal Kumar Mitra and the appellant Sharad
Subramanyan and a fourth on 28-4-1989, by which the former
agreed to lease the whole of terrace of the existing construction
of the suit property to enable the appellant to construct at his
cost an additional floor. The demise was for a period of twenty-
one years commencing from 1-4-1989 with a renewal clause for
42

a further period of twenty-one years after expiry of every period
of twenty-one years. Though the agreement created a lease for
such a long period with a renewal clause, it was not registered.”
“5. On 21-10-1992, Reba Mitra executed a lease deed in respect
of the suit property granting certain rights to the appellant. Reba
Mitra died on 27-11-1998. The appellant produced a will dated
21-10-1992 claiming that he had been granted certain rights
under the will. A second will dated 14- 5-1993 and a third will
dated 14-12-1997 were produced by the parties each of whom
claimed that the will in his/her favour was the genuine will. “6.
On 17-8-2001, Reba Mitra’s will dated 14-12-1997 was granted
probate by the District Judge, Alipore. The appellant had been
appointed as one of the executors under the will of Kamal Kumar
Mitra. Soumi Mazumdar and Shantanu Bose (Respondents 1 and
2, respectively), the legatees under the said will, by their letter
dated 16-4-1999, called upon the appellant and Subir Kumar
Deb, joint executors, to give assent to the legacy under the will of
Reba Mitra, hand over vacant possession of the first floor of the
suit property and also distribute all the income of the estate in
terms of the will of the late Kamal Kumar Mitra. On 30-4-1999,
Subir Kumar Deb addressed a letter stating that he was not in
possession of any legal document and, therefore, he was unable
to execute the estate according to the will of Kamal Kumar Mitra.
On 4-5-1999, the appellant wrote back alleging that Reba Mitra
had demised the first floor of the suit property in the year 1992
in his favour. The appellant also stated that he was going
through the various legal implications to examine the demand for
disbursement of the income.” The legatees seek to rob the
petitioner’s case of most of its merit by referring to the reliefs
sought. It is not that the petitioner seeks an injunction on the
dispossession that the administrator pendente lite threatens it
with; the petitioner seeks revocation of the grant. The legatees
attempt to distinguish the two possible causes of action and
assert that if it is the latter, the time under SectionArticle 137 would
43

only begin to run when the threat is received, but if it is the
former the time begins to run from the moment of the grant and
an attempt at explanation has to be made for the period
beginning the moment following the grant and leading up to the
receipt of the first letter issued by the administrator pendente
lite. The legatees say that the petitioner has no right to ward off
the threat conveyed by the letter issued by the administrator
pendente lite without first seeking revocation of the grant. The
legatees implore that the court should not see Sharad and the
petitioner as two distinct entities and, if necessary, should apply
the doctrine of lifting the corporate veil to assess as to whether
Sharad is the controlling mind lurking behind the veil. The
legatees go back in time in referring to the judgment reported at
AIR 1965 SC 40 (SectionTata Engineering and Locomotive Co. Limited v.
State of Bihar) and trace how the Supreme Court has carried the
principle much further in recent times. The judgment reported at
(2001) 7 SCC 1 (Steel Authority of India Limited v. National Union
Water Front Workers) is placed and the view of Krishna Iyer, J.

quoted at paragraph 115 of the report is placed. In similar vein,
the judgments reported at (2003) 6 SCC 1 (SectionKapila Hingorani v.
State of Bihar); (2006) 7 SCC 756 (SectionJai Narain Parasurampuria v.
Pushpa Devi Sharaf) and (2003) 7 SCC 749 (SectionShakila Abdul Gafar
Khan v. Vasant Raghunath Dhoble) are referred to. What
emerges from the discussions in the various judgments is that it
is imperative for the court to do justice and for such purpose
disregard the structure of an entity to garner the meat of the
matter. The concept of a company and the jurisprudence that
follows it was alien in the Indian context. The sanctity of the
structure attached to a corporate entity in English law may not
always be applicable in the Indian context. As much as
companies have been set up in India to carry any business
venture, the corporate facade has been put up time and again to
shield the humans behind it. Corporate jurisprudence is no
longer in its initial stage for it to be regarded as a bride for the
44

veil to be removed. Courts are more prone now than ever before
to disregard the veil and go straight at the controlling mind
without stopping to question the propriety or necessity of piercing
the veil. In the synopsis relating to the petition for special leave
to appeal before the Supreme Court filed by Sharad, there is
more than passing reference to the lease of October 21, 1992
said to have been created by Reba Mitra in favour of the
petitioner. At pages F and G of the synopsis, Sharad asserted
that he received a letter of April 16, 1999 from the legatees that
he was in illegal possession of the first floor of premises no.
13/1, Promotesh Barua Sarani to which he replied that he “was
not in possession of the first floor of the said premises as
alleged.” In such assertion Sharad did not deny that he was not
in possession but merely denied that he was in possession as
alleged. It would not be outlandish to infer that what Sharad left
unsaid was that he may have physically been in possession, but
such possession was by virtue of his association with the
petitioner which was in de jure possession of the first floor of the
premises. The special leave petition papers contain an affidavit
affirmed by Sharad on February 8, 2000. In such affidavit, in
response to a petition for removal of the joint executors on the
allegations of misappropriation of funds and usurpation of the
estate, Sharad insisted that there was no estate of Kamal Mitra
in existence as all his assets had devolved upon his widow as
legatee on the assent given by her as the first executrix. In such
affidavit Sharad referred to the deed of October 21, 1992 by
which a lease was granted in favour of the petitioner and the
copy of the registered deed was appended to his affidavit. In the
order passed on the application for removal of the joint executors,
a learned Single Judge appointed an administrator pendente lite
and also directed eviction of one of the occupants at premises no.
13/1, Promotesh Barua Sarani. Sharad’s appeal failed except
that the appellate court held that no occupier could be evicted
except under due process of law. It appears that the entire basis
45

of Sharad’s argument was that notwithstanding Kamal Mitra’s
Will, it was his widow on whom his entire estate devolved and
the widow was free to deal with the estate that had become her
own. It was such contention that did not find favour with this
Court in the two stages here and with the Supreme Court in the
appeal resulting from the special leave petition. It is necessary to
go into such aspect to assess whether it would be appropriate to
permit the same issue to be raised again. For, if the delay in the
petitioner applying for revocation of the probate is condoned, and
the petitioner’s apparent right to seek revocation is recognised,
the entire process that culminated in the conclusion of the lis by
the Supreme Court order would be undone and reopened for
fresh adjudication. The matter is not, as the petitioner simplifies
and puts it, of the court being liberal in the matter of condonation
of delay to allow a right to be canvassed. Equally, the principal
issue is not, as the legatees’ suggest, to affix the petitioner with
the knowledge that Sharad had and to consequently find the
petitioner’s explanation of the delay to be unmeritorious. It is the
recognition of the fact that a settled position would be undone if
by an apparently gracious act of condonation of delay, an
undesirable second round of the same challenge is unleashed.
Even if the petitioner is permitted to take the challenge forward,
it can progress no more upon it being recognised that the only
possible issue has been conclusively pronounced upon by the
Supreme Court, albeit in proceedings where the petitioner was
not a eo nominee party. In assessing the impact of Sharad’s
knowledge on the company, the first point of note is that neither
of the Subramanyans had any conflict of interest with the
petitioner. It is also of singular importance that the effect of what
the petitioner now seeks to establish is, willy-nilly, for the
present benefit of Sharad or Vasant in course of their association
with the petitioner. It is not a point of technicality on which a
petitioner is denied justice by not being permitted to assert a
right on grounds of delay, it is the warding off of a technical
46

argument of distinction between a corporate entity and one of the
principal persons in control thereof to avoid abuse of process.
Sharad may not have had any legal duty to inform the company
(if the company was any more different from himself) upon
discovering, although in his capacity as executor, that Reba
Mitra had acquired no right to the estate to transfer it to the
petitioner. Yet it was so overwhelming a moral duty that a
director of a company in Sharad’s place had, even if he were not
its controlling shareholder, to inform the company of its imminent
loss of its valuable asset, that the fine distinction between a
legal duty and a moral duty vanishes. That Sharad had
produced and relied upon the petitioner’s lease to assert that
notwithstanding Kamal Mitra’s Will his estate passed to his
widow, would also show that Sharad was aware that he was
also fighting his company’s cause. To ignore all that has gone on
before and to accept the petitioner’s simple case and apparent
innocence would lead to gross injustice and undoing the finality
that is attached to the result on the substance of the dispute
following the Supreme Court verdict. The result is that the
petitioner’s application for condonation of delay fails as the
petitioner is deemed to have had notice for a period much prior to
the receipt of the administrator pendente lite’s first letter of
August 28, 2007 which the petitioner has chosen to ignore for
want of any plausible explanation. As a consequence, the
petitioner’s application for revocation of the grant is not taken on
board, but even if it were it would have to be dismissed for the
only issue therein having been decided in favour of the legatees
in the earlier proceedings. The petitioner will pay costs assessed
at 2000 GMs.”

This litigation was started by one Taxation Services Syndicate

Private Ltd who prayed for revocation of the grant of probate after a

delay of several years, that is, while the probate was granted in favour
47

of Reba Mitra on 14.05.1993 and the revocation application so made

in 2007. Such application was numbered as G.A. no. 3908 of 2007.

The connected application being G.A. no. 533 of 2008 was filed

praying for condonation of delay. The application for revocation and

condonation of delay were dismissed with cost assessed at Rs. 2000/-

Gms. While rejecting the condonation of delay and the revocation of

grant the Hon’ble Single Bench of the High Court at Calcutta held:

Set out page 80 to 86.

“The legatees refer to the Supreme Court judgment rendered in
the earlier round reported at AIR 2006 SC 1993 (SectionSharad
Subramanyan v. Soumi Mazumdar) and particularly rely on
paragraphs 3, 5 and 6 thereof:

“3. Kamal Kumar Mitra entered into an agreement dated
22-5-1988 with T.K. Ramasubramanyan (father of
Sharad Subramanyan, hereinafter “the appellant”) by
which a tenancy was created in respect of the ground
floor flat of certain premises situated at 13/1,
Promothesh Barua Sarani, Kolkata (hereinafter “the suit
property”) at a monthly rental of Rs.5000. A further
agreement dated 1-11-1988 was made between Kamal
Kumar Mitra and the present appellant Sharad
Subramanyan for providing to the tenants the fittings and
fixtures on the ground floor at a monthly charge of
Rs.750. On 24-2-1989, there was a third agreement
between Kamal Kumar Mitra and the appellant Sharad
Subramanyan and a fourth on 28-4-1989, by which the
former agreed to lease the whole of terrace of the existing
construction of the suit property to enable the appellant to
construct at his cost an additional floor. The demise was
for a period of twenty-one years commencing from 1-4-

48

1989 with a renewal clause for a further period of
twenty-one years after expiry of every period of twenty-

one years. Though the agreement created a lease for such
a long period with a renewal clause, it was not
registered.” “5. On 21-10-1992, Reba Mitra executed a
lease deed in respect of the suit property granting certain
rights to the appellant. Reba Mitra died on 27-11-1998.
The appellant produced a will dated 21-10-1992 claiming
that he had been granted certain rights under the will. A
second will dated 14- 5-1993 and a third will dated 14-
12-1997 were produced by the parties each of whom
claimed that the will in his/her favour was the genuine
will. “6. On 17-8-2001, Reba Mitra’s will dated 14-12-
1997 was granted probate by the District Judge, Alipore.
The appellant had been appointed as one of the executors
under the will of Kamal Kumar Mitra. Soumi Mazumdar
and Shantanu Bose (Respondents 1 and 2, respectively),
the legatees under the said will, by their letter dated 16-
4-1999, called upon the appellant and Subir Kumar Deb,
joint executors, to give assent to the legacy under the will
of Reba Mitra, hand over vacant possession of the first
floor of the suit property and also distribute all the income
of the estate in terms of the will of the late Kamal Kumar
Mitra. On 30-4-1999, Subir Kumar Deb addressed a letter
stating that he was not in possession of any legal
document and, therefore, he was unable to execute the
estate according to the will of Kamal Kumar Mitra. On 4-
5-1999, the appellant wrote back alleging that Reba Mitra
had demised the first floor of the suit property in the year
1992 in his favour. The appellant also stated that he was
going through the various legal implications to examine
the demand for disbursement of the income.”

49

The legatees seek to rob the petitioner’s case of most of its merit
by referring to the reliefs sought. It is not that the petitioner
seeks an injunction on the dispossession that the administrator
pendente lite threatens it with; the petitioner seeks revocation of
the grant. The legatees attempt to distinguish the two possible
causes of action and assert that if it is the latter, the time under
SectionArticle 137 would only begin to run when the threat is received,
but if it is the former the time begins to run from the moment of
the grant and an attempt at explanation has to be made for the
period beginning the moment following the grant and leading up
to the receipt of the first letter issued by the administrator
pendente lite. The legatees say that the petitioner has no right to
ward off the threat conveyed by the letter issued by the
administrator pendente lite without first seeking revocation of the
grant. The legatees implore that the court should not see Sharad
and the petitioner as two distinct entities and, if necessary,
should apply the doctrine of lifting the corporate veil to assess as
to whether Sharad is the controlling mind lurking behind the veil.
The legatees go back in time in referring to the judgment reported
at AIR 1965 SC 40 (SectionTata Engineering and Locomotive Co. Limited
v. State of Bihar) and trace how the Supreme Court has carried
the principle much further in recent times. The judgment reported
at (2001) 7 SCC 1 (SectionSteel Authority of India Limited v. National
Union Water Front Workers) is placed and the view of Krishna
Iyer, J. quoted at paragraph 115 of the report is placed. In
similar vein, the judgments reported at (2003) 6 SCC 1 (SectionKapila
Hingorani v. State of Bihar); (2006) 7 SCC 756 (SectionJai Narain
Parasurampuria v. Pushpa Devi Sharaf) and (2003) 7 SCC 749
(SectionShakila Abdul Gafar Khan v. Vasant Raghunath Dhoble) are
referred to. What emerges from the discussions in the various
judgments is that it is imperative for the court to do justice and
for such purpose disregard the structure of an entity to garner
the meat of the matter. The concept of a company and the
jurisprudence that follows it was alien in the Indian context. The
50

sanctity of the structure attached to a corporate entity in English
law may not always be applicable in the Indian context. As much
as companies have been set up in India to carry any business
venture, the corporate facade has been put up time and again to
shield the humans behind it. Corporate jurisprudence is no
longer in its initial stage for it to be regarded as a bride for the
veil to be removed. Courts are more prone now than ever before
to disregard the veil and go straight at the controlling mind
without stopping to question the propriety or necessity of piercing
the veil. In the synopsis relating to the petition for special leave
to appeal before the Supreme Court filed by Sharad, there is
more than passing reference to the lease of October 21, 1992
said to have been created by Reba Mitra in favour of the
petitioner. At pages F and G of the synopsis, Sharad asserted
that he received a letter of April 16, 1999 from the legatees that
he was in illegal possession of the first floor of premises no.
13/1, Promotesh Barua Sarani to which he replied that he “was
not in possession of the first floor of the said premises as
alleged.” In such assertion Sharad did not deny that he was not
in possession but merely denied that he was in possession as
alleged. It would not be outlandish to infer that what Sharad left
unsaid was that he may have physically been in possession, but
such possession was by virtue of his association with the
petitioner which was in de jure possession of the first floor of the
premises. The special leave petition papers contain an affidavit
affirmed by Sharad on February 8, 2000. In such affidavit, in
response to a petition for removal of the joint executors on the
allegations of misappropriation of funds and usurpation of the
estate, Sharad insisted that there was no estate of Kamal Mitra
in existence as all his assets had devolved upon his widow as
legatee on the assent given by her as the first executrix. In such
affidavit Sharad referred to the deed of October 21, 1992 by
which a lease was granted in favour of the petitioner and the
copy of the registered deed was appended to his affidavit. In the
51

order passed on the application for removal of the joint executors,
a learned Single Judge appointed an administrator pendente lite
and also directed eviction of one of the occupants at premises no.
13/1, Promotesh Barua Sarani. Sharad’s appeal failed except
that the appellate court held that no occupier could be evicted
except under due process of law. It appears that the entire basis
of Sharad’s argument was that notwithstanding Kamal Mitra’s
Will, it was his widow on whom his entire estate devolved and
the widow was free to deal with the estate that had become her
own. It was such contention that did not find favour with this
Court in the two stages here and with the Supreme Court in the
appeal resulting from the special leave petition. It is necessary to
go into such aspect to assess whether it would be appropriate to
permit the same issue to be raised again. For, if the delay in the
petitioner applying for revocation of the probate is condoned, and
the petitioner’s apparent right to seek revocation is recognised,
the entire process that culminated in the conclusion of the lis by
the Supreme Court order would be undone and reopened for
fresh adjudication. The matter is not, as the petitioner simplifies
and puts it, of the court being liberal in the matter of condonation
of delay to allow a right to be canvassed. Equally, the principal
issue is not, as the legatees’ suggest, to affix the petitioner with
the knowledge that Sharad had and to consequently find the
petitioner’s explanation of the delay to be unmeritorious. It is the
recognition of the fact that a settled position would be undone if
by an apparently gracious act of condonation of delay, an
undesirable second round of the same challenge is unleashed.
Even if the petitioner is permitted to take the challenge forward,
it can progress no more upon it being recognised that the only
possible issue has been conclusively pronounced upon by the
Supreme Court, albeit in proceedings where the petitioner was
not a eo nominee party. In assessing the impact of Sharad’s
knowledge on the company, the first point of note is that neither
of the Subramanyans had any conflict of interest with the
52

petitioner. It is also of singular importance that the effect of what
the petitioner now seeks to establish is, willy-nilly, for the
present benefit of Sharad or Vasant in course of their association
with the petitioner. It is not a point of technicality on which a
petitioner is denied justice by not being permitted to assert a
right on grounds of delay, it is the warding off of a technical
argument of distinction between a corporate entity and one of the
principal persons in control thereof to avoid abuse of process.
Sharad may not have had any legal duty to inform the company
(if the company was any more different from himself) upon
discovering, although in his capacity as executor, that Reba
Mitra had acquired no right to the estate to transfer it to the
petitioner. Yet it was so overwhelming a moral duty that a
director of a company in Sharad’s place had, even if he were not
its controlling shareholder, to inform the company of its imminent
loss of its valuable asset, that the fine distinction between a
legal duty and a moral duty vanishes. That Sharad had
produced and relied upon the petitioner’s lease to assert that
notwithstanding Kamal Mitra’s Will his estate passed to his
widow, would also show that Sharad was aware that he was
also fighting his company’s cause. To ignore all that has gone on
before and to accept the petitioner’s simple case and apparent
innocence would lead to gross injustice and undoing the finality
that is attached to the result on the substance of the dispute
following the Supreme Court verdict. The result is that the
petitioner’s application for condonation of delay fails as the
petitioner is deemed to have had notice for a period much prior to
the receipt of the administrator pendente lite’s first letter of
August 28, 2007 which the petitioner has chosen to ignore for
want of any plausible explanation. As a consequence, the
petitioner’s application for revocation of the grant is not taken on
board, but even if it were it would have to be dismissed for the
only issue therein having been decided in favour of the legatees
53

in the earlier proceedings. The petitioner will pay costs assessed
at 2000 GMs.”

This decision of the Hon’ble Single Judge passed on 19th

March, 2008 was carried in appeal by the plaintiff/applicant and the

Division Bench dismissed the appeal. Even the prayer for

modification so far as cost awarded by the Single Bench was also

refused. Matter went up to Hon’ble Apex Court in special leave to

appeal No. 18693 of 2009 and the Hon’ble Apex Court dismissed the

special leave petition.

On behalf of the present defendants, Soumi Majumdar and

others, this application being G.A. 1858 of 2008 was moved in T.S.

No. 88 of 1993 and the said application was disposed of by a

Coordinate Bench of this Court on 23rd June, 2008. Relevant portion

of the said order is set out below: (page 103 to 104)

“In the present proceedings a grant has already been made. It
has been found that Subramanyan has no manner of interest to
be entitled to reopen the issue or have the grant revoked. There
is no order of any superior forum to the contrary. The Supreme
Court order has to be interpreted to imply that till the
administration of the estate is complete, the proceedings
remained pending in the sense that an application in respect of
the estate may still be made to Court for appropriate directions.

The beneficiaries of the estate of Kamal Kumar Mitra, deceased
are all together and this application has been by all of them.
They want the advocate administrator pendente lite to be
discharged as there is no dispute amongst themselves for Soumi
Majumdar and Latika Deb, two of the legatees to be appointed
54

joint administrators to complete the administration of the estate
and to issue assent to legacy in terms of the Will of March 19,
1991.

It is submitted by Subramanyan that no notice had been issued
to Subramanyan as Subramanyan should not be bound by this
order. Subramanyan was required to be served a notice since
Subramanyan had canvassed that he had an interest in the
estate.

There will be an order in terms of prayers (a) and (b). It is
recorded that the advocate administrator has been paid his
remuneration till February 2008 though the remuneration has
not come out of the work but the remuneration has been paid by
the applicant legatees.

The administrator will, however, file accounts in the event the
administrator had collected any payments relating to the estate.
If the administrator had not collected or disbursed any
payments, the administrator may inform the legatees now
appointed administrator to such effect and upon such letter
being received he will require to do nothing further.

GA No. 1858 of 2008 is disposed of without any order as to
costs.”

The said order dated 23rd June, 2008 was challenged in an

appeal being APOT 326 of 2008 by Sharad Subramanyan against

Soumi Majumdar, the present defendant. The Hon’ble Division Bench

disposed of the appeal and the connected application there at holding

inter alia following (Set out page 109 to 110)
55

“From the factual circumstances, while the High Court’s
appointment of an Administrator pendente lite appears to be
correct, we need not finally decide as to whether the appellant
was unfit to act as an executor of Kamal Kumar Mitra’s Will. We
are cognizant of the fact that the High Court is still seized of the
matter and the order passed is only an interlocutory order based
on prima facie considerations. In our view, there was sufficient
jurisdiction for the High Court to make the order for appointment
of the Administrator pendente lite to protect the estate during the
pendency of the petition before it. The question as to whether the
appellant as the executor has breached his fiduciary duty, can
only be determined at the end of the trial. In our view, therefore,
the impugned judgment of the High Court is not liable to be
interfered with.” In our opinion, the last four lines of the order
which have been underlined by us hereinabove do not prohibit
the Court from appointing another Administrator. The only caveat
is that the question as to whether the appellant as executor has
breached his fiduciary duty shall be determined at the final
stage of the trial. We see no reason to interfere with the order
passed by the trial Court.

Both the appeal and the application are dismissed.”

Sharad Subramanyan yet made another fresh attempt by filing

three separate suits before the Civil Judge, Alipore Court.

Challenging the legacy and transfer of the said property of the

legatees of K. K. Mitra to Laxmi Housing Udyog Private Ltd. on the

plea that a life interest of Reba Mitra in the said property has become

full fledged interest by virtue of Section 14(1) of the Hindu Succession

Act, 1956 and the same cannot be decided in the testamentary suit.

In fact, the issue had already been decided in earlier probate

proceeding filed by Reba Mitra on the Will of her husband in the
56

Calcutta High Court and which was finalized by the Hon’ble Apex

Court. However, the defendant Laxmi Housing Udyog Private Ltd.

filed three Civil Revisions before this Court challenging the order

rejecting their application under Order VII Rule 11 of the Code of Civil

Procedure. This Court however, set aside the order refusing to reject

the defendant’s application under Order VII Rule 11 of the Code and

held that the three pending suits cannot be maintained. The said

order in Civil Revision was assailed by Taxation Services Syndicates

Private Ltd. by filing a special leave to appeal being No. 32446 of

2015 and the SLP was dismissed.

After such a chequered history of the litigation between the

parties in respect of the self-same property the submission made by

the plaintiff before this Court to keep its eyes close about the title of

the property, cannot be accepted. Parties were granted leave to file

written notes.

It is undisputed fact (as has already been mentioned in

paragraph 25 of the written notes filed by the plaintiff in course of

hearing) that, there was another Will of the deceased/testatrix

executed in the year 1997 which stood probated by an order of the

District Judge, Alipore. The said paragraph 25 is set out below:

“25. The propounder, Sri Sharad Subramanyan is entitled

to the grant of probate of the registered last Will and Testament

dated 21st October, 1992 and Codicil dated 21st June, 1998 of

the testatrix, Reba Mitra.

57

In Reply, the Counsel for the defendants submitted that probate

of another Will dated 14.12.1997 of the deceased was granted.

Against the said grant, the plaintiffs herein have filed an

application for revocation for grant being Revocation case No.156

of 2004 before the District Judge, Alipore. The learned District

Judge was pleased to stay the operation of the grant. The interim

order of stay of operation of grant is being extended from time to

time and is continuing.

Two judgments were cited in reply:

AIR 1958 Cal 710 (para 5) and 2004(7) SCC 459 (para 15)

• The facts in the case of AIR 1958 Cal is different from the

present one. Appointment of an administrator pendente lite

was an issue there. The Court was hearing an appeal from

an interlocutory order. The case herein is completely

different. Lordship is hearing the final hearing of the

probate suit.

• 2004(7) SCC 459 – Interpretation of Section 61 of

Karnataka Land Reforms Act, 1961 was for consideration

before the Hon’ble Supreme Court. A statutory embargo was

there on execution of a Will. In such circumstances, Supreme

Court held that Court shall not refuse to determine the

question as regards validity of the Will, as in terms of the

provisions of a statute, the same would be void ab initio.

The bar was under the local law of Karnataka. In the
58

instant case there is no statutory bar in execution of the Will

by the deceased.”

It is not understood if the deceased executed a Will on

14.12.1997 which was probated in the District Judge’s Court at

Alipore how can the executor maintain the present probate

proceeding for grant of the Will dated 21st October, 1992 and the

Codicil dated 21st June, 1998. However, it is submitted by the

plaintiff that a revocation case has been filed being Revocation case

No. 156 of 2004. The doubt has not been cleared before this Court as

to the genuineness of the Will and particularly which one is the last

Will of the testatrix coupled with the question whether she had any

authority to exercise her right over the property being 13/1,

Promotesh Barua Sarani, Kolkata- 700019, and to include the same

in the Will, and whether as such issues Court can reject grant of

probate.

In Shoilesh Chandra Mustafi (supra), appellant raised a

proposition that a Probate Court should not go into title of the

testator in the property bequeathed. The issue, has been more

illustratively discussed and held by a Division Bench of Our High

Court that there cannot be any such rigid proposition. The said case

arose in relation to an appointment of Administrator pendente lite. In

an off shoot on an application for probate originally filed by one

Mustafi in the Court of the District Judge. Subsequently, one

Guruprosad Mustafi also joined as a co-applicant for the probate. The
59

Will in question purports’ to have been executed by one Hem Nolini

Devi in October, 1950. Hem Nalini had three sons, Prafulla, Nirmal

and Shoilesh of whom the first two were dead. Amal is son of Nirmal

and Guruprosad is son of Prafulla. As the application for grant of

probate had become contentious, the application was subsequently

registered as a plaint. Summons was duly served on Shoilesh and he

appeared and contested the proceedings. During pendency of the suit

in the Court of the District Judge an application for appointment of

an administrator pendente lite in respect of the properties covered by

the Will was filed by the plaintiffs on the allegation that defendant

Shoilesh had taken possession of the ground floor portion of one of

the properties and after having inducted tenants in that portion he

was not paying anything towards the seba puja of the Deity or

towards Corporation taxes and rates. This application was opposed

by Shoilesh who contended that the house property in question was a

debottar property, having been dedicated to Deity Sri Sri Iswar Raj

Lakshmi Thakurani by the alleged testatrix as early as in 1939. The

contention of the objector, therefore, was that no administrator

could be appointed so far as this property was concerned,

because the testatrix could not make any valid disposition in

respect of it, having already dedicated it in favour of the Deity.

The contention of the objector further was that it was not

expedient to take this property out of the possession of the

objector and to make it over to the possession of the

administrator.

60

The learned District Judge by his order repelled these

contentions of the objector and directed that an administrator

pendente lite should be appointed in respect of all the properties

covered by the Will including the disputed house. A practicing

advocate of the District Court was also appointed administrator in

respect of the properties covered by the Will including the disputed

house and after he had furnished requisite security.

While giving answer to the questions whether Probate Court

should go into the disputed title or not. The Hon’ble Court said

ordinarily no Probate Court should enter into question of title, where

conflicting claims of title is involved in respect of the property covered

by the Will but where a party applies for appointment of

administrator pendente lite and the objector to such an appointment

puts forth a claim to the property apart from the Will, such claim

should be considered at least prima facie , for the purpose of allowing

or refusing the prayer for an appellant of the administrator pendente

lite. The Division Bench held “Dangerous consequences may follow if

the Court totally refuses to enter into the question of title altogether,

because it would be very easy for a particular party to get in

administrator pendente lite appointed in respect of the property of

another person and to take it out of his possession simply because it

may happen to be included in that will of a testator.” As against the

finding of the District Judge that no such question could be raised in

any manner as regards the title of the property of the deceased in a

probate proceeding. The Division Bench held “In our opinion, that an
61

erroneous proposition of law propounded by the learned District

Judge.”

The decision of the Division Bench also took note of the

proposition in Atulabala Dasi -Vs. – Nirupama Devi reported in AIR

1951 Cal 561 (A) where it was held that although it is not for the

Probate Court, while granting Letters of Administration, to interpret

the Will for the purpose of deciding the question of title, the Court will

have to be satisfied, prima facie, that the will contains provisions

which affect properties in respect of which a conflicting claim is

made.

At the end the Hon’ble Division Bench cancelled the order of

appointment of administrator pendente lite so far the disputed house

is concerned and the appeal of the objector was allowed. The

administrator was directed to make over possession of such house to

the appellant/objector.

Under the concept of fair dispensation of justice, our

Constitution also prohibits abuse of the process of Court and this is

part of public policy too because a man again and again cannot be

allowed to agitate his grievance on an issue already settled and based

on this public policy Civil Procedure Code also enacted provisions of

Section 11 which prohibits raising of same issue between the parties

in a subsequent proceeding over again. Law deprecates such an

action. Even to broaden the application of the principle of res judicata

from that of a Civil Suit it has been enlarged up to a proceeding by
62

Civil Procedure Code Section(Amendment) Act, 2002, brought in Section 141

of the Code of Civil Procedure. The provisions of Section 11 and

Section 141 are set out below:

“S. 11 Res Judicata. -No Court shall try any suit or issue in
which the matter directly and substantially in issue has been
directly and substantially in issue in a former suit between the
same parties, or between parties under whom they or any of
them claim, litigating under the same title, in a Court competent
to try such subsequent suit or the suit in which such issue has
been subsequently raised, and has been heard and finally
decided by such Court.

Explanation I.– The expression former suit shall denote a suit
which has been decided prior to a suit in question whether or not
it was instituted prior thereto.

Explanation II.– For the purposes of this section, the competence
of a Court shall be determined irrespective of any provisions as
to a right of appeal from the decision of such Court.

Explanation III.–The matter above referred to must in the former
suit have been alleged by one party and either denied or
admitted, expressly or impliedly, by the other.

Explanation IV.– Any matter which might and ought to have
been made ground of defence or attack in such former suit shall
be deemed to have been a matter directly and substantially in
issue in such suit.

Explanation V.– Any relief claimed in the plaint, which is not
expressly granted by the decree, shall for the purposes of this
section, be deemed to have been refused.

Explanation VI.– Where persons litigate bona fide in respect of a
public right or of a private right claimed in common for
themselves and others, all persons interested in such right shall,
63

for the purposes of this section, be deemed to claim under the
persons so litigating .

1[Explanation VII.– The provisions of this section shall apply to a
proceeding for the execution of a decree and references in this
section to any suit, issue or former suit shall be construed as
references, respectively, to a proceeding for the execution of the
decree, question arising in such proceeding and a former
proceeding for the execution of that decree.”

Explanation VIII.– An issue heard and finally decided by a Court
of limited jurisdiction, competent to decide such issue, shall
operate as res judicata in a subsequent suit, notwithstanding
that such Court of limited jurisdiction was not competent to try
such subsequent suit or the suit in which such issue has been
subsequently raised.]

“S. 141. Miscellaneous proceedings. -The procedure provided
in this Code in regard to suits shall be followed, as far as it can
be made applicable, in all proceedings in any Court of civil
jurisdiction.

[Explanation.– In this section, the expression “proceedings”
includes proceedings under Order IX, but does not include any
proceedings under Sectionarticle 226 of the Constitution.]”

The principle has been highlighted in the case of SectionSatyadhyan

Ghosal And Ors. vs Sm. Deorajin Debi And Anr. reported in AIR

1960 SC 941 that even principle of res judicata is applicable in two

different stages of the same proceeding its scope has been enlarged

by the verdict of the Apex Court even to a proceeding before a

Coordinate jurisdiction. Therefore, it can be said that principles that

govern the obligations of a litigant while approaching the Court for
64

redressal of any grievance and the consequences of abuse of the

process of Court may be summarized to say –

(1) Courts have, over the centuries, found upon litigants who, with

intent to deceive and mislead the Courts, initiated proceeding without

full disclosure of facts and came to the Courts with un-clean hands,

should be condemned with tough voice the practice to keep the Court

in dark about the facts and law already settled for such litigants and

the deprecation should be in such a manner that people at large

must get a strong message that vague litigation and or fraudulent

activities before the Court must get an answer with penal

consequences.

(2) There should always be duty casts upon the litigants to approach

the Court with clean hands is an absolute obligation.

(3) Litigants should not be allowed to make any attempt to pollute the

fair atmosphere of Justice Dispensation System of the Country by

adopting unfair means of suppressing material fact before the Court.

(4) In order to give fair justice to the litigating parties the Court must

ensure that its process is not abused and in order to prevent abuse of

the process of the Court, it would be justified even in insisting on

furnishing of security that in case of serious abuse the Court would

be duty bound to impose heavy costs.

SectionIn Kishore Samrite -vs. – State Of U.P. Ors reported in AIR

2012 SC (supplementary) 699 the Hon’ble Apex Court has held that
65

it has to maintain strictest vigilance over the abuse of the process of

court and ordinarily meddlesome bystanders should not be granted

“visa”. Many societal pollutants create new problems of un-redressed

grievances and the Court should endure to take cases where the

justice of the lis well-justifies it.

In view of the discussions hereinbefore, and the attempt of the

petitioner to unsettle the settled position of law, the contention made

before this Court is not only liable to be rejected but the testamentary

suit should be dismissed with heavy costs such costs is assessed at

Rs.1,00,000/- (Rs. One Lakh) only, to be paid by the plaintiffs to the

defendants by an account payee cheque to be drawn in the name of

the learned Advocate on record for the defendants.

Rider-1

This court is not unmindful of the principle of res judicata

under the provision Section 11 of the Code of Civil Procedure. Law

has already been settled by the Hon’ble Apex court in case of

Satyadhan Ghoshal -Vs. – SM. Deorajin Devi reported in AIR 1960

SC 941 in the said decision the Hon’ble Apex Court held that once a

res is judicata, it shall not be adjudged again. The Hon’ble apex Court

has also held that the principle applies as between past litigation and

future litigation so also as between two stages in the same litigation

to the extent that a Court, whether the trial Court or a Higher Court

having at a earlier stage decided a matter in one way will not allow

the parties to re-agitate the matter again at a subsequent stage of a
66

same proceeding. In the present case since the issue whether the

testatrix had title over the property in question had reached finality

the same issue is no more open re-agitated at a subsequent

proceeding once again.

Urgent Photostat certified copy of this judgment, if applied for,

be delivered to the learned counsel for the parties, upon compliance

of all usual formalities.

(Sahidullah Munshi, J.)

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