CRYSTAL DEVELOPERS ETC. ETC. versus SMT. ASHA LATA GHOSH (DEAD) THROUGH LRS. AND ORS., ETC. ETC.

Citation: [2004] SUPP. 5 S.C.R. 31 · Decided: 05-10-2004 · Supreme Court of India · Bench: ASHOK BHAN

Judgment (excerpt)

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CRYSTAL DEVELOPERS ETC. ETC. 
v. 
SMT. ASHA LATA GHOSH (DEAD) THROUGH LRS. AND ORS., 
ETC. ETC. 
OCTOBER 5, 2004 
[ASHOK BHAN AND S.H. KAPADIA, JJ.] 
Indian Succession Act, 1925; Ss. 2(/), 2(h), 63, 2Jl, 212, 213, 214, 218, 
219, 220, 221, 227, 235, 263, 273, 278, 297, 307 and 332: 
Testator bequeathing property in dispute to his son from third wife 
ignoring other legal heirs-Grant of probate/Letter of Administration-Suit 
A 
B 
c 
for partition of the property filed by other legal heirs-Agreements to sell the 
property in dispute entered into between the testator and vendee-Execution 
thereof by the executor-son after death of his father/testator-Revocation of D 
probate on ground of non-citation-Sale transactions-Validity of-Held: 
Agreement to sell the property executed and certain amount as part 
consideration received by testator himself during his life time-Testator had 
strained relations with his second wife and sons but had cordial relations with 
his third wife and son-Testator bequeathed his properties to his son from 
third wife out of love and affection, and appointed the son as constituted E 
attorney for negotiations and selling of the property-No abnormality found 
in testator appointing one of his sons as constituted attorney-Trial Court 
failed to take into account the proved preponderatory circumstances but was 
influenced by unconsequential matters in holding the will as not genuine-
Grant of Probate establishes the genuineness of the will-Grantee entitled to F 
convey the title-If propounder did not take appropriate steps by mistake to 
notify his heirs_ before obtaining probate, third party/purchaser, if acted 
bonafidely, not answerable to the mistake committed by the grantee-Since 
Vendees invested huge amount to free the suit premises from requisition, 
acquisition and other encumbrances, they were . bound to expedite the 3ale 
after grant of probate-Since partition suit filed by other legal heirs, sons G 
from second wife of the testator, and the suit premises got demolished and a 
new building constructed thereon, it shows that other legal heirs also had 
knowledge of these events-They knowingly allowed the executor of the will 
to represent himself as owner of the suit property-Hence, Vendee is bona fide 
31 
H 
32 
SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R. 
A purchaser for value-Indian Evidence Act, 1872-Section 68. 
..-..~ 
Effect of affidavit and counter affidavit on the genuineness of the will-
Held: Initially mother of the executor alleged the will as forged in terms of 
affidavit filed by her at an interim stage of the proceedings, she rectified the 
earlier statement by supporting the genuineness of contents and signatures of 
B testator on the will by filing another affidavit-'{hese evidence not shaken-
Hence, alleged suspicious circumstances stand cleared. 
'( 
Revocation of grant-Circumstances-Held: Liable to be revoked if 
obtained fraudulently-Probate Court revoked the grant on ground of non-
c 
citation-Since the executor of the will deposed that he could not cite his two 
step sisters due to mis-conception and not on account of fraud, Courts below 
erred in concluding that the probate was obtained by the executor fraudulently. 
Constitution of India, I950; Article I36-Scope of-Discussed. 
D 
Transfer of Property Act-Section 41-Applicability of-Discussed. 
Words and Phrases: 'Executor' and' administrator-Distinction between 
A partition suit was filed by the legal heirs, sons of the deceased/ 
testator, claiming their share in the properties. The deceased had three 
E 
wives (One of whom died during his life time) and nine children. He was 
living along with his third wife (defendant No.I) and son (defendant No.2) 
since he. was having strained relations with his second wife and other 
children. Defendant No.2 contested the suit relying on several documentary 
evidence including the registered Will made by his father during his life 
time, bequeathing the disputed properties in his favour. The disputed 
F property was transferred by defendant No.2 in favour of the appellant/ 
Vendee (defendant No.I4 in the suit). Subsequently the property was 
transferred by the appellant in favour of defendant Nos. I5 to 20. Trial 
Court decreed the suit holding that defendant No.I4 was not bona.fide 
purchaser since the agreements (Ex.A/I and ExA/2) for sale of the disputed 
G 
properties were executed by defendant No.2 as constituted attorney when 
his. father, owner of the property w

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