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TMI Blog2011 (6) TMI 935X X X X Extracts X X X X X X X X Extracts X X X X ..... ssibilities, the matter has let loose a set of audacious assertions and denials. The plaintiffs claim the first plaintiff to be the executor of a yet unprobated will of one Sailabala Sein with the second plaintiff as a legatee thereunder. The plaintiffs allege that the Short Street property is the subject-matter of the alleged will and that the first and second plaintiffs have sold the same to the third plaintiff. The suit is for asserting the third plaintiff s exclusive rights in respect of the property. The immediate interlocutory relief sought in GA No. 778 of 2011 is to restrain the defendants from dealing with the property or disturbing the third plaintiff s possession thereof. The other part of the claim in the suit is for a declaration that certain documents and deeds relating to the property as set up by some of the defendants are illegal and void and the consequential injunction. The plaintiffs interlocutory application also carries a prayer that the documents assailed should not be relied upon by the appropriate defendants. Apart from the plaintiffs asserting the third plaintiff s title to the property, the plaint refers to two deeds of conveyance relating to the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt has also cited a judgment reported at (1977) 4 SCC 467 (T. Arivandandam v. T.V. Satyapal) that instructs at paragraph 5 of the report that a clear right to sue has to be made out in the plaint and, to ascertain whether such right has been demonstrated, it requires a meaningful, not formal, reading of the plaint. The third defendant has also placed a judgment reported at (1998) 2 SCC 70 (ITC Ltd v. Debts Appellate Recovery Tribunal) for the principle that the mere use of the word fraud in a plaint would not imply that the cause of action is based on fraud. The plaintiffs first refer to a judgment reported at AIR 2004 SC 4980 (Crystal Developers v. Ashalata Ghosh) to suggest that Hem Nolini Judah is no longer good law. The contention is unacceptable not only because a two-judge Bench in Crystal Developers could not have upset the dictum of the three-judge Bench in Hem Nolini Judah, but also as Crystal Developers does not detract from the obvious that has been stated in Hem Nolini Judah. In Crystal Developers, what fell for consideration was whether the revocation of a probate invalidated the bona fide intermediate acts performed by the grantee at the time that the grant remai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herein that an unprobated will can be admitted in evidence for collateral purposes in any other proceedings apart from probate proceedings. A Division Bench judgment reported at AIR 2001 Bom 224 (Ramniklal Amritlal Shah v. Bhupendra Impx Pvt. Ltd) has been placed by the plaintiffs for the twin propositions that the bar of Section 213(1) is against passing a decree and not against entertaining a suit; and, that it is permissible for an interlocutory order to be passed notwithstanding that a decree in the suit cannot immediately be made in favour of the plaintiff for want of probate. Section 213(1) of the Succession Act uses the word established. It follows that the prohibition thereunder is for a right under a will being conclusively demonstrated in the absence of the will being probated. The provision does not preclude a right under a will being asserted. Upon a plaint being filed, it is a right which is merely asserted. It is only when the decree is made in favour of the plaintiff that it can be said that the right canvassed has been established. If Section 211 declares the legal character of the executor as the representative of the testator and vests the estate in the execu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on Section 32(c) of such Act that provides that if an agent were to present a document to be registered under such Act, it is incumbent that such agent be duly authorised by a power of attorney executed and authenticated in such manner as provided later in the Act. They proceed to Section 33 of the Act that pertains to the power of attorney recognisable for the purposes of Section 32 and rely on the first limb of subsection (1) thereof. Section 33(1)(a) commands that only such power of attorney would be recognised for the purposes of Section 32 of the Act if the principal at the time of executing the power of attorney resides in any part of India to which the Act applies and a power of attorney is executed by the principal before and authenticated by the registrar or sub-registrar within whose district or subdistrict the principal resides. In support of such submission, the plaintiffs rely on a judgment reported at (2003) 10 SCC 390 (Manjunath Anandappa v. Tammanasa) for an inconsequential comment in paragraph 15 thereof that noted, in the context of a suit for specific performance of a contract, that the power of attorney in that case was not registered. It is apparent that the ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration. The fourth defendant was the executant, on behalf of the transferor, in either case and Section 32(c) does not mandate that if the executant is the agent of a party to the transaction, the power of attorney authorising him to execute the document on behalf of a party would require to be registered. There is a further technical objection to the power of attorney taken by the plaintiffs. They say that Section 28 of the Registration Act, as is relevant in the context, provides that a document affecting immovable property shall be presented for registration in the office of a sub-registrar within whose sub-district the whole or some portion of the property to which such document relates is situate. The plaintiffs refer to Section 30 of the Act and the effect of such provision following its amendment. Prior to the relevant amendment of Section 30 of the Act, sub-section (2) thereof permitted, inter alia, the registrar of a district in which a presidency town was included to receive and register any document referred to in Section 28 without regard to the situation in any part of India of the property to which the document related. Sub-section (2) was omitted from Section 30 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 2011) that they were obtained in late July, 2010 by the fifth defendant. The fifth defendant is the father of the first and second plaintiffs and a son of Sailabala s husband s brother. The third defendant in its affidavit has relied on a document of May 17, 1999 that appears to be a receipt issued by Sailabala, acknowledging the payment of a sum of ₹ 9.5 lakh by the third defendant in respect of the sale of the Short Street property. The receipt suggests that a demand draft and another cheque, making up the total amount, were paid to Sailabala s nephew Dwarka Nath Sen. It also suggests that Sailabala undertook to send my constituted attorney Sibaji Banerjee (the fourth defendant) to Mumbai for registration of the conveyance deed The document also appears to have been signed by the fifth defendant and suggests that the fifth defendant read over and explained the contents thereof to Sailabala. The fifth defendant has disowned the document. At paragraph 6 (h) of his affidavit he has complained that the original document was not made available for inspection despite his demand and has recorded that such alleged receipt and various other documents relied upon by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he did not receive such payment from the third defendant and, at paragraph 10 (vi) of his affidavit dealing with the third defendant s opposition, he has reserved his right to provide further evidence to prove that Annexure C (to the third defendant s affidavit) is a fabricated document The third plaintiff has claimed that such cheques were received by him in respect of an independent transaction between him and Shreeji Flat Holder Pvt. Ltd. It is of significance that Shreeji Flat Holder Pvt. Ltd is a confirming party to the deed of conveyance under which the property has been conveyed by the third defendant to the first and second defendants on September 29, 2010. The third defendant has used a supplementary affidavit where it has relied on the plaint and the interlocutory application relating to a suit filed by one Mamta Agarwal against the third defendant where the first and second plaintiffs herein are the proforma defendants therein. Mamta Agarwal is admittedly a cousin of the third plaintiff. The plaint in such Title Suit No. 3405 of 2010 filed before the City Civil Court was verified on September 28, 2010, a day before the deed of conveyance was executed recordin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble to make out any case. The document of transfer executed by the third defendant in favour of the first and second defendants has been challenged only on the ground that the third defendant had no title to pass on to the others. The third defendant s previous claim to the property has been questioned primarily on the ground of the perceived infirmity in the power of attorney executed by Sailabala in favour of the fourth defendant. The challenge to the documents of 1999 on the grounds urged under the Registration Act appears, prima facie, to be devoid of substance. It would matter little then if the alleged will of Sailabala is probated; for the probate Court would then merely endorse the validity of the execution of the document but would have no authority or occasion to decide on the testator s title to a property bequeathed under the will. GA No. 778 of 2011 is dismissed with costs of 1000 GM to be paid to the West Bengal State Legal Services Authority within a fortnight from date and further costs of 5000 GM to be paid to the first and second defendants if the suit fails. This is a matter where the court should reserve its authority to deal with the parties for filing false ..... 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