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TMI Blog2004 (4) TMI 665X X X X Extracts X X X X X X X X Extracts X X X X ..... . Thereafter it is said that this old man married second time, however, factum of which is disputed. One of the daughters of the subsequent marriage has come forward in this proceeding to claim her share. 3. Sudhir, since deceased, during his lifetime applied for grant of probate of father's will. However, the probate was refused by this Court, as it was seriously challenged and such challenge succeeded. An appeal was preferred against the order, refusing grant of probate. The appeal was kept pending and during pendency of the appeal the above named executor died. 4. In the pending appeal the sons and daughters of the old man tried to compromise amongst themselves by filing an agreement in the probate proceedings before the appeal Court. The appeal court had accepted the compromise amongst the heirs and heiress and the legal representative of the old man. Ultimately, on application being made by the present petitioners, who are the sons of Salil Kumar Banerjee, since deceased the said consent order was set aside by the appeal court and it declared the appeal stood abated so it was dismissed. As a result the properties of the old mand were succeeded by the heirs and legal repres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to be dealt with property wise, as, if it is found that Sudhir had left behind any of his exclusive property, then, these petitioners cannot question to that extent of the impugned consent order. 10. On the aforesaid background now rival contention of the parties has to be examined. The properties mentioned in the consent order consist of as follows: (i) Premises No. 40B and 42 Protapadittya Road, Calcutta. (ii) Premises being No. P-64 (Holding No. 415/120), Block - E, Bangur Avenue, Calcutta. (iii) Premises No. 11/2, Ultadanga Road, Calcutta. (iv) Thika tenanted structure at 118, Raja Dinenda Street, (v) Two Calcutta Stock Exchange Cards. 11. Mr. Pratap Chatterjee learned Senior Counsel submits that the aforesaid consent order has been obtained by practicing fraud of a highest degree, because all the parties to the said proceedings have suppressed relevant fact that his clients are also entitled to inherit the property. Sudhir did not have any property of his own, all that he had is, undivided right, title and interest in father's property. The impression was given to the Court as if Sudhir had all the aforesaid properties of his own in the probate proceedings in relation t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a all the assets are included showing that the said properties belonged to said deceased father. Those facts were not placed before this Court at the time of passing of the order of sale in a probate proceeding, admittedly and the petitioners are not signatories to the same.. 17. Mr. Kar appearing for the purchaser of Pratapaditya Road property submits that Mr. Chatterjee's clients have no right, title and interest in this property as this property is stridhana, as being yautaka and succession will be applicable in accordance with Article 155 of the principle of Hindu Law (Mullah). It will appear from the aforesaid Article sons are excluded only daughters (both betrothed and un-betrothed and married and un-married) are eligible. On the death of Sarala Bala both married and un-married daughters were there. Therefore, by no stretch of imagination the grand son of Sarala Bala can get any share in the Pratapaditya Road property. As such the petitioners have no locus standi to question the order of sale of this property. Even assuming the petitioners have interest the entire sale cannot be said to be invalid and void by reason of the fact that the petitioners are only having 1/10th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No challenge has been thrown against the report of the Receiver by the petitioners, as such prima facie Surendra Nath did not have any right, title and interest in this property, naturally the petitioners cannot claim any right, title and interest therein. 22. As far as the order of status quo passed by the learned Civil Judge Junior Division of Sealdah is concerned it is of no value by reason of the fact that it was passed ex parte without notice to his client and such an order is not binding upon his client. 23. Moreover, he contends that this order is null and void, because this was passed on an incompetent suit which was filed by so-called executor through constituted attorney in respect of alleged will of Salil since deceased. Though it is mentioned probate has been granted and such probate has not been produced. He submits the executor cannot establish any right in relation to will unless probate is obtained and produced in view of Sections 212, 213, 214 and 228 of the Indian Succession Act, 1925. He has relied on decision of Supreme Court reported in AIR 1962 SC 1471 in this connection. Therefore, the order of Sealdah Court should be overlooked as this order is null and void ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ever it is brought before it for the simple reason that the Court is not supposed to commit wrong resulting injustice, rather justice always, when it is detected the Court unknowingly is in path of injustice. It will automatically come to the track of justice, instantly, for which no additional power from outside viz. law maker is needed. This automatic change of course, is in my view, one of the modes of exercise of inherent power: In the petition the grave allegation of fraud have been made out and this needs inquiry. 28. The Supreme Court in several decisions following the old decision of Privy Council more often than not has laid down that whenever fraud, whatever may be the nature and character, is alleged the Court can set right in any proceeding including collateral proceedings. This remedy is available to third parties also and even after the lis is over if it is established his right is affected and serious injustice is caused. In this connection I can remember a Supreme Court decision reported in 1994 (1) SCC 1. So I hold that his application is perfectly maintainable even after disposal of the lis itself and at the instance of the third party. 29. The application is ente ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s come within entry IV, whereas brothers and sisters come within entry II. Accordingly as rightly submitted by Mr. Das unless the petitioners herein can establish the properties mentioned in the impugned consent order belonged to Surendra this application cannot be maintained. 32. In pursuance of the impugned consent order I am to examine the contents of the will of Sudhir to find his title to the properties disposed of by him. In his will he has mentioned that he bequeathed all his assets both immovable and movable of every kind and nature wherever situate including bank accounts some of which had nominees. In the will it has also been mentioned that the present petitioners (Scot and Stephens) should also be looked after whenever they will come to India. Therefore, it is clear that it has not been specifically mentioned which are the properties belonged to him. The affidavit of assets filed in support of this probate application would be useful guidance to find out the properties both immovable and movable left behind by Sudhir. Admittedly it was an application for granting probate of the will. With this application an affidavit of assets has been annexed. I find there is no whisp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar as succession under Dayabhaga School of law is concerned, Article 154 Hindu Law (Mulla) at page 209 15th Edition, the aforesaid Article provides as follows. 154. Classification of stridhana. - Stridhana according to the Dayabhaga School may be divided, for the purposes of succession, into four classes: (1) Shulka, that is, a present to induce the bride to go to her husband's house. (2) Yautaka, that is, gifts made at the time of marriage. This term has been interpreted by the High Court of Calcutta as including not only gifts made before the nuptial fire but gifts made during the continuance of the marriage ceremonies, that is the ceremonies beginning with shraddha and ending with that of prostrating before the husband. It is conceived that it includes gift from strangers made before the nuptial fire and at the bridal procession. (3) Gifts and bequests from the father made after marriage. (Gifts made by relations subsequent to marriage are called anwadheyaka. The present class relate to anwadheyaka from father.) (4) Ayautaka, that is, gifts and bequests from relations made before or after marriage. This class includes gifts and bequests from the father made before marriage, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he can maintain a proceeding. I refrained myself from discussing and deciding the question of locus of Henry Hopkins as executor without production of probate as this issue will be dealt with in the suit filed in Sealdah Court. 39. However, the probate has not 'been produced before this Court. Presently I resume there is no will as such two sons namely Scot and Stiphen are the heirs and legal representative of Salil and they can very well maintain this application, so this application is now being considered at their instance and not at the instance of Henry Hofkins. 40. The Contention of Mr. Das is that by virtue of Section 26 of the Hindu Succession Act, 1956 Scot and Stiphen are disqualified to inherit the property of his relations. In my view there is little fallacy in his argument, as Section 26 of the aforesaid Act will not be applicable in relation to the property of the father of the children of convert Hindu. Language in Section 26 is clear enough to reach this legal conclusion. Therefore I set out Section 26 of the said Act. 26. Where, before or after the commencement of this Act, a Hindu has ceased or ceases to be a Hindu by conversion to another religion, children b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oned the right of inheritance of other daughters. I do not wish to decide right of inheritance in the manner different from what has already been accepted by all the parties, has been in terms of the settlement. So, I have kept this issue open as far as right of inheritance of Nilima vis- -vis her heirs and legal representatives and also the co-sharers are concerned. 47. I, therefore, hold and declare that Dr. sharaf the client of Mr. Kar has acquired the right, title and interest of all the signatories to the said terms of settlement if any, and the share of Salil, since deceased, is declared not to have been sold. I refuse to set aside this sale in its entirety. However, I modify the aforesaid order in the manner as above. 48. Therefore, the application for rectification of the deed is taken up for consideration,. in view of the declaration as above. I am of the view that the conveyance is to be rectified incorporating that Dr. Saraf has not acquired undivided interest of Salil. Let a copy of this judgment and order be sent to Registering authorities concerned to do the needful in respect of Deed No. 2438 entered in Book No. 1 Volume No. 72 at pages 399 to 426 of 1999. 49. After ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtain cases no written agreement was entered into. In case of Court sale there is hardly any scope for concealing the real value of the property. In this case the dealing was between the two private parties but then Court had accepted the price of the property is the real market price not the apparent one. As such the question of evasion of taxes does not arise. 53. The object and reasons for making provisions of the aforesaid Section and Chapter XXC was explained in great details by the Supreme Court in case of C.B. Goutam v. Union of India reported in 199 ITR 530 (SC). The decision of the Supreme Court was followed in a numerous cases in all the High Courts in this country as well as the Supreme Court subsequently. As a matter of fact I have discussed the object and purpose of bringing the aforesaid provision for preemptive purchase under Section 269 (UD) of the Income Tax Act in case of ITC Ltd. v. Appropriate Authority (Cal) reported in ITR (Vol. 257) p. 495. In that case I observed amongst others that: .....right to acquire property of his own choice in any part of India, by a citizen is a fundamental right as well. However such a right is always subjected to reasonable restri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terest of Scot and Stiphen in relation to their father's interest in the property it would not be proper for this Court to observe anything else. All that I can say that these are highly disputed questions of fact and law and the petitioners herein have rightly approached the competent Court of Civil jurisdiction and I clarify the decision which might be rendered by the Civil Court will have final effect of the consent order passed by this court, must yield to the decision of the civil court as in the event it is decided Henry Hogfkins and for that matter the estate of Salil has no right, title and interest in this property being plot no. 64 Bangur Avenue then certainly the terms of settlement will be binding upon them as they are not the signatories, admittedly to this property. 56. Mr. Das submits that, I should ignore the order of the Civil Court or proceedings initiated by Henry Hofkins, as the same is an incompetent proceeding. I am of the view that all these points should be taken before the appropriate civil court and I do not wish to decide the same. 57. As far as the order of status quo granted by the civil court in relation to the plot no. p-63 is concerned I think th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... valid to the extent of the shares and interest of these two person. 63. Accordingly I direct Sunil Kumar Banerjee to disclose the nature of movable properties he has received in terms of the terms of settlement and also the liabilities. 64. After delivery of the judgment learned Counsel appearing for the parties submit that necessary directions are to be given in respective applications separately, so let these applications appear again tomorrow (16.04.2004) in the list of further directions. DICTATED ORDER K.J. Sengupta, J. 65. In view of my judgment as above relating to Pratapaditya Road, property, I think until and unless shares of Scott and Stephen Banerjee are sold to Mr. Kar's clients, the question of passing the title to this property in its entirety in favour of Mr. Kar's client does not arise. Under these circumstances, I am of the view the application made by this client for rectification of this deed may not be allowed as it is prayed for. Rectification of these deed may be done only after making an amendment that the shares of Scott and Stephen Banerjee have not been sold out. In the event the property of Scott and Stephen Banerjee is sold, as per my judgment, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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