2011 (6) TMI 935 - HC - Indian Laws

Summary

Issues Involved:
1. Validity of the plaintiffs' claim based on an unprobated will.
2. Legitimacy of the 1999 property transaction and the power of attorney.
3. Plaintiffs' entitlement to interlocutory relief.

Summary:

1. Validity of the Plaintiffs' Claim Based on an Unprobated Will:
The third defendant challenged the plaintiffs' suit on the grounds that Sailabala's will had not been probated, invoking Section 213 of the Succession Act, 1925. The court referenced the judgment in Hem Nolini Judah v. Isolyne Sarojbashini Bose, which states that a right under a will cannot be established without probate. However, the plaintiffs cited Binapani Kar Chowdhury v. Satyabrata Basu and FGP Ltd v. Saleh Hooseini Doctor, which clarified that Section 213 does not bar the institution of a suit by an executor or legatee, but only the passing of a decree without probate. The court concluded that the preliminary challenge by the third defendant was devoid of merit, allowing the plaintiffs to assert their rights under the will.

2. Legitimacy of the 1999 Property Transaction and the Power of Attorney:
The plaintiffs questioned the 1999 transaction, alleging that the fourth defendant, who executed the documents as Sailabala's attorney, was a stranger to the family and did not have a registered power of attorney. The court noted that the power of attorney did not need to be registered under Section 17 of the Registration Act. The plaintiffs' argument based on Sections 32 and 33 of the Registration Act was dismissed, as the fourth defendant was the executant on behalf of Sailabala. The court found no merit in the plaintiffs' contention that the power of attorney should have been registered and upheld the validity of the 1999 transaction.

3. Plaintiffs' Entitlement to Interlocutory Relief:
The plaintiffs sought to restrain the defendants from dealing with the property or disturbing the third plaintiff's possession. The court observed inconsistencies in the plaintiffs' claims, particularly the third plaintiff's knowledge of the 1999 transaction and the subsequent conveyance in August 2010. The court found that the plaintiffs failed to establish a prima facie case for the interlocutory relief sought. The court dismissed GA No. 778 of 2011 with costs, emphasizing that the plaintiffs had not demonstrated a justifiable basis for their apprehension of dispossession.

Conclusion:
The court dismissed the plaintiffs' interlocutory application and preliminary challenge by the third defendant, finding the plaintiffs' claims based on the unprobated will and the challenge to the 1999 transaction to be without merit. The court reserved the authority to address any false affidavits filed by the parties after the trial's conclusion.