Nepal Kishore Ray v. Baidyanath Poddar — 1984 DIGILAW 74 (CAL)

JUDGMENT 1. This appeal from Appellate Decree is directed against the judgment and decree dated 17th March, 1979, passed in Title Appeal No. 834 of 1976 by the learned Additional District Judge, 10th Court, Alipore, whereby the judgment and decree dated 23rd July, 1976, passed in Title Suit No. 225 of 1974, by the learned Munsif, 6th Court, Alipore, was affirmed. Alongwith this appeal, Appeal from Appellate Decree No. 985 of 1977, Shri Nepal Kishore Roy & Anr. v. Joydeb Das was heard as the two appeal arose out of the same proceedings, which again were heard together. 2. On or about 30th May, 1974, Title Suit No. 225 of 1974 was filed for eviction, khas possession and recovery of rents amongst ethers by the plaintiffs, contending that the defendant was a monthly tenant in respect of one tiled shed shop room under them at a monthly rental of Rs. 50/- payable according to Bengali calender month. It was also stated that one Keshab Ghosh was the absolute owner and in possession of a demarcated 113 interest of 2 chattack of lands at Dag No. 16 and 5/388 together with rooms standing thereon including the premises in question, which would hereafter be referred to as the said premises. 3. It was also stated that by virtue of a registered deed of partition (Ext. 4) with his brothers Rajendra and Barin, Keshab got his shares as aforesaid and he sold his interest on 9th January, 1974 to the plaintiffs. It has also been stated that the plaintiffs required the defendant in writing, to pay to them the rents for the said premises from 1380 B.S. but there was no compliance with such requirements and as such, the defendant’s tenancy was duly determined on appropriate service of notice to quit, which was received by the defendant on 30th March, 1974. In fact, the defendant, it has been stated, have replied to such notice on 28th April, 1974. The plaintiffs have stated that since the defendant had not vacated the said premises so the concerned suit was filed for the reliefs as mentioned hereinbefore. 4. The suit was contested by the defendant, who denied the plaintiffs allegations and stated that they were not the owners of the said premises. The plaintiffs have stated that since the defendant had not vacated the said premises so the concerned suit was filed for the reliefs as mentioned hereinbefore. 4. The suit was contested by the defendant, who denied the plaintiffs allegations and stated that they were not the owners of the said premises. It has also been alleged that in Pous, 1380 B.S., Keshab's brother Barin informed the defendant that his father Mangol Ghosh took settlement of the said premises by a registered patta and constructed structures thereon, including the said premises. It has also been stated that Keshab had executed a Will, making his wife and, in case of her death, his son Barid to be the executor of the Will as a result whereof Barid become the sole owner of the said premises. It was also the defendant's case that probate of the Will was granted to Barid by the District Delegate in Act 39, Case No. 10 of 1974 and on his demand, the defendant paid to him all arrears of rents since Pous, 1383 B.S. It was also stated that the plaintiffs acquired no title to the said premises and the registered deed as mentioned above, was a sham transaction. It was contended that the plaintiffs were not the landlords of the defendants. On such pleadings, the issues which were framed for determination were as under :- 1. Has the plaintiff any cause of action? 2. Is the notice to quit valid, legal and sufficient? 3. Is the defendant a defaulter in payment of rent as alleged? 4. Is there any relationship of landlord and tenant between the parties? 5. Is the plaintiff entitled to get a decree for ejectment and mesne profit as prayed for? 6. To what relief, if any, is the plaintiff entitled? 5. It would appear that the learned Munsif on his findings that there was no relationship of landlord and tenant between the parties to the proceedings, dismissed the suit and the said order was challenged by the plaintiffs in appeal to the learned Appellate Court, on the ground that the learned Munsif failed to appreciate that prior to the institution of the suit, there was relationship of landlord and tenant between the parties, which fact again, according to the appellants, was established. It has been stated that in not holding such the learned Munsif failed to consider and construed the effect of Exts. 4, 6 and 11 series. It was also stated that the respondent in the concerned appeal having admitted the tenancy under the plaintiffs, should have been held to be estopped from challenging appellants ownership of the suit premises and that the probate (Ext. B) was of no avail or any assistance in the matter of finding out the ownership of the appellants in respect of the said premises and in any event, the same was binding upon them, as they were not parties to the probate proceeding. It was claimed before the learned Appellate Court that it should have held that the partition deed (Ext.4) already as estoppel against Barid Baran Ghosh (D.W. 1), as he had elected to such partition and having elected such, he really admitted acquisition of the property with the joint fund of the other brothers in the Benami of their father and as such, he could not take his alleged stand under or in terms of the Will. These apart, it was specifically submitted that a tenant was not entitled to defend a suit for eviction and other reliefs, if the landlord's title vesting to the third party pendente lite and lastly, it was claimed that the learned Munsif should have relied upon Exts B and C series and the testimony of Barid Baran Ghosh and on such, the suit should have been decreed. 6 Before the learned Munsif, both the parties to the suit agreed that the tenancy of the said premises was governed by the provisions of the Transfer of Property Act and not by those of West Bengal Premises Tenancy Act and rent was payable according to Bengali calendar .month. On consideration of Exts. 1, 2, 3 and C series, the findings as indicated above, were arrived at and Issue No.2 indicated hereinbefore, has been answered in the affirmative, holding the notice in question to be valid, legal and sufficient, apart from the fact, that the said notice was served upon the defendant. 7. Issue No.1 as indicated above, was not pressed and so far issue No.3 was concerned, it was found that plaintiffs proved the existence of relationship of landlord and tenant amongst them and the defendant and furthermore the defend ant was a defaulter in payment of rents. 8. 7. Issue No.1 as indicated above, was not pressed and so far issue No.3 was concerned, it was found that plaintiffs proved the existence of relationship of landlord and tenant amongst them and the defendant and furthermore the defend ant was a defaulter in payment of rents. 8. Issue Nos.4 and 6 as mentioned hereinbefore, were taken up for consideration together. The learned Munsif has observed that the suit property, alongwith other properties, were purchased by a patta (Ext. D) in the name of Mongal Ghosh, the father. From Ext. A it has also been found that the said Mongal Ghosh died on 8th of January, 1967 and his wife Apabala died on 5th September, 1973 and they had three sons namely Keshab, Ranjan and Barid. It was observed by the learned Munsif that Keshab (P.W.1) deposed contrary to Ext. D series and claimed that he and his brother Ranjan took settlement of the lands in question in their father's name and in that process, they became the owners. It has also been found that the two brothers as mentioned above, used to possess the lands in suit and thereafter there was a partition amongst three brothers as mentioned above, whereupon the said premises fell in the share of Keshab (P.W. 1) but his brother, in fact, deposed in favour of defendant as D.W.1 and claimed that the suit property belonged to his father who got the same by patta. It was also the case of the said D.W.1 that after their parent's death, he found a Will of his father, which has been probated and before the said Will was found out the property was partitioned between the brothers, in the manner as indicated hereinbefore. This D.W.1, of course, admitted that the premises in suit fell in the share of allotment of Keshab and he realised rents from the tenant. 9. The learned Munsif has further observed that the defendant also admitted that he was inducted by the father of Keshab and paid rents to Keshab and thereafter, he started paying rent to Barid. This D.W.1, of course, admitted that the premises in suit fell in the share of allotment of Keshab and he realised rents from the tenant. 9. The learned Munsif has further observed that the defendant also admitted that he was inducted by the father of Keshab and paid rents to Keshab and thereafter, he started paying rent to Barid. Admittedly, the suit was filed on 30th May, 1974 and the Will was probated in July, 1974 i.e. after the institution of the suit and the learned Munsif has also observed that the plaintiffs have not proved their purchase deed and it was simply stated by or on their behalf that such purchase was made from P.W. 1, Keshab, who in his cross-examination stated that he sold the property to plaintiffs on 9th January, 1974. It has also been recorded that Barid in his cross-examination has stated that after his mother's death and 8/9 months before the probate was granted, the Will was discovered. Thus, the learned Munsif has also observed that taking into consideration of such discovery of the Will, Keshab sold the property to the plaintiffs, admittedly after the death. It was the further case of D.W. 1 that the partition deed was executed by him with his brother without knowing the existence of the Will and as soon as the Will was discovered in the manner as indicated above, he asked the defendant to pay the root to him and filed the probate proceeding. It was both the parties case before the learned Munsif that the defendant never paid any rent to the plaintiffs. So his admission in cross-examination, that by purchase, the plaintiffs became landlord would not operate as estoppel under section 116 of the Evidence Act. On consideration of rent receipt Ext. C series and the Evidence of D.W.1 so also the probate Ext. B, learned Munsif held and found that by purchase from Keshab the plaintiffs could not established landlord and tenant relationship with the defendant. In such circumstances and the views as taken the suit was dismissed 10. On consideration of rent receipt Ext. C series and the Evidence of D.W.1 so also the probate Ext. B, learned Munsif held and found that by purchase from Keshab the plaintiffs could not established landlord and tenant relationship with the defendant. In such circumstances and the views as taken the suit was dismissed 10. The submissions which were advanced in the appeal, have been indicated hereinbefore and on such, it was found and observed by the learned Appellate Court, of the question of estoppel as pleaded and urged, that after the Will was probated, the legatee become owner of the property and that too from the date of execution of the Will and as such the partition amongst co-sharers would not create any title. It was also observed by the learned Appeal Court that the property in dispute stood in the name of the father, Mongal Ghosh and during his life-time, no steps were taken by the plaintiffs to establish the benami transaction. It has also been observed that the admission by the respondent that by purchase, plaintiffs become landlord will not operate as estoppel. These apart, the learned Appellate Court, agreeing with the findings of the learned Munsif, has observed that the plaintiffs failed to show and establish their title and ownership over the lands in question or the title thereto and thus, to establish the relationship of landlord and tenant. Such being the findings, the appeal was also dismissed. 11. Shri Bidyut Kumar Banerjee being led by Shri Sakti Nath Mukherjee submitted that the documents material for consideration in this appeal would be Ext. 4, partition deed. Ext. 6 the compromise decree and Ext. 11 the rent receipt. He claimed that as the probate Court cannot decide the question of title, so the grant in favour of Barid would not confer title on him automatically. It was also claimed that Barid and his two brothers viz., plaintiff vendors having admitted in the partition deed Ext. Ext. 6 the compromise decree and Ext. 11 the rent receipt. He claimed that as the probate Court cannot decide the question of title, so the grant in favour of Barid would not confer title on him automatically. It was also claimed that Barid and his two brothers viz., plaintiff vendors having admitted in the partition deed Ext. 4 that the property in question was acquired in the name of the father Mongal Chand, such acquisition should have been held and found to be a benami one with the joint fund of the brothers and as such there having partition on that basis which fact again was admitted by Barid, the learned Courts below should have held that in view of such joint acquisition, the property in question cannot be claimed to be belonging to Mongal Chand absolutely. It was Mr. Banerjee's further submissions that under the general law in a suit like the present one, the question of title would not be relevant in view of the admitted relationship of the landlord and thus the tenants in this case were estopped from challenging the landlord's title in view of section 116 of the Evidence Act. It was also claimed and contended that the defendants having admitted the relationship in their affidavit, the Courts below should have granted the decree as was asked for and while making the impugned determinations, they failed and in fact, they did not consider the effect of the compromise decree Ext. 6 between the plaintiff's vendor and Baidyanath. Reference was also made to section 227 of the Indian Succession Act, for the purpose of establishing that the findings of the learned Courts below on the effect of them coming into force or effective nature and character of the probate as was granted were improper and erroneous. In view of section 227 as indicated above, it was also claimed that the probate Court had no jurisdiction to decide the question of title in respect of the suit property. 12. On a reference to Ext. 4 the partition deed, Mr. Banerjee stated that same firstly established that Mongal Chand was not the owner and secondly the same demolished the defence case. It was also contended by him on a reference to the compromise decree Ext. 6 that the first clause of the same unequivocally admitted Keshab to be the absolute owner. 4 the partition deed, Mr. Banerjee stated that same firstly established that Mongal Chand was not the owner and secondly the same demolished the defence case. It was also contended by him on a reference to the compromise decree Ext. 6 that the first clause of the same unequivocally admitted Keshab to be the absolute owner. While on his submissions and support of his contentions on estoppel. Mr. Banerjee referred to the evidence of P.Ws.1 and 2 D.Ws. 1, 2 and 3. 13. For the purpose of the functions and jurisdiction of a probate Court reference was made by Mr. Banerjee, firstly, to the case of (1) Mrs. Hem Nalini Judah (since deceased) and after her legal representative Mrs. Marlean Wilkinson v. Mrs. Isolyne Sarojbashini Bose & Ors., AIR 1962 SC 1471 and then to in case of (2) Smt. Kashi Bai & Anr. v. Gobind L. Mackar, 52 CWN 914. In the Supreme Court case as mentioned above, it has been observed that section 213 creates a bar to the establishment of any right under Will by an executor or a legatee unless probate or Letters of Administration of the Will have been obtained, whether that right is claimed by the person as a plaintiff or defendant and the words of section 213 are not restricted only to those cases where the claim is made by a person directly claiming as a legatee. The section does not say that no person can claim as a legatee or as an executor unless he obtains probate or Letters of Administration of the Will under which he claims. What it says is that no right as an executor or legatee can be established in any Court of Justice, unless probate or Letters of Administration have been obtained of the Will under which the right is claimed and therefore it is immaterial who wishes to establish that right, as a legatee or an executor. Whatsoever wishes to establish that right, whether it be a legatee or an executor himself or somebody else who might find it necessary in order to establish his right to establish the right of some legatee or executor from whom he might have derived title, he cannot do so unless the Will under which the Tight as a legatee or executor is claimed has resulted in the grant of a probate or Letters of Administration. In that case a claiming as legatee under a Will of which she had obtained Letters of Administration filed a suit for declaration of her title in regard to a property included in the Will. She sought to establish that the ownership of that property vested in her testator as a legatee under a Will executed in favour of her testator by another person No probate or Letters of Administration had however been obtained in regard to that Will and it has been held that section 213 barred A from establishing the right of her testator as a legatee under the alleged Will as no probate or Letters of Administration had been obtained apart from holding that questions of title are not decided in proceedings for the grant of probate or Letters of Administration. Whatever therefore might have happened in those proceedings would not establish the title. Where on an application for Letters of Administration certain preliminary issues were framed one of which related to estoppel with respect to the opposite party's rights to a property and the application was obviously dismissed under Order 27, Rule 2, Civil Procedure Code for the reason that the applicant did not appear no question of res judicata as to the title to that property can arise against the applicant by reason of that dismissal. The Calcutta case as cited hereinbefore has laid down that the Testamentary Court has no jurisdiction to act as the Court of construction of a Will or to find out whether the person making bequest of certain properties had the title to the same, apart from holding that the question which falls within the scope of the probate Court is to find out whether the document sought to be probated did in fact dispose of some property and it is only for the purpose of determining whether the document is of dispositive effect that the probate Court can construe the provisions of that document. 14. To establish the submissions on estoppel, reference was first made to the case of (3) Sri Ram Pasricha v. Jagannath & Ors. AIR 1976 SC 2335 , where it has been laid down that it is only the landlord who can terminate the tenancy and institute the suit for eviction. The tenant in such a suit is estopped from questioning the title of the landlord under section 116 of the Evidence Act. AIR 1976 SC 2335 , where it has been laid down that it is only the landlord who can terminate the tenancy and institute the suit for eviction. The tenant in such a suit is estopped from questioning the title of the landlord under section 116 of the Evidence Act. The tenant cannot deny that the landlord had title to the premises at the commencement of the tenancy. Under the general law, in a suit between landlord and tenant, the question of title of the leased property is irrelevant. Then, reliance was placed on the decision in the case of (4) Smt. Charubala Basu v. German Gomes, AIR 1934 Cal 499, where on construction and application of section 116 of the Evidence Act and in a case where the tenant, let into possession by the predecessor of the plaintiff sued as trespasser by the plaintiff after expiry of the term, it has been observed that such a tenant who has been let into possession by plaintiff’s predecessor is sued as a trespasser by plaintiff for eviction after expiry of the terms, the tenant is not entitled to dispute plaintiff's title, apart from holding a tenant who had been let into possession cannot deny his landlord's title, however defective it may be, so long as he has not openly restored possession by surrender to his landlord and his estoppel operates even after the termination of his tenancy. It was also and specifically contended that the findings by the learned Appellate Court that the Will and Exts. B and D would disentitle the plaintiff, of the reliefs as claimed, were wrong. Mr. It was also and specifically contended that the findings by the learned Appellate Court that the Will and Exts. B and D would disentitle the plaintiff, of the reliefs as claimed, were wrong. Mr. Banerjee, appearing for the respondent claimed the submissions on section 116 of the Evidence Act as put forward on behalf of the appellants to be misconceived and in support of such submissions, he referred to the case of (5) Kumar Raj Prosad Lal Singha Deo v. Baraboni Coal Concern Limited & Ors, (LR) LXIV IA 311, where it has been observed that by section 116 of the Indian Evidence Act, 1872: "No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property......" and on such it has been held that section 116 does not deal with all kinds of estoppel or occasion of estoppel which may arise between landlord and tenant It deals with one cardinal and simple estoppel. It postulates that there is a tenancy still continuing and that it held its beginning at a given date from a given landlord, and provides that neither a tenant nor anyone claiming through a tenant shall be heard to deny that particular landlord had at that date a title to the property, and there is no exception even for the case where the lease itself discloses the defect of title. In the ordinary case of a lease intended as a present demise, the section applies against the lessess any assignee of the term and any sublessee or licensee. It has also been held that the principle of the section does not apply to disentitle a tenant to dispute the derivative title of one who claims to have since become entitled to the reversion, and in that sence the principle only applies to the title of the landlord who "let the tenant in" as distinct from any other person claiming to be reversioner. Nor does the principle apply to prevent a tenant from pleading that the title of the original lessor has since come to an end and "The tenancy" under section 116 does not begin afresh every time the interest of the tenant or of the landlord devolves upon a new individual by succession or assignment and further, under the section a tenant is estopped from denying his landlord's title whether he was or was not already in possession of the property at the time when he took his lease. Mr. Banerjee, on the facts, as found also contended that really and admittedly, the property in question stood acquired in the name of the father and during his life-time, no steps were taken by the plaintiffs or their co-sharers to establish such benami transaction, as alleged. In fact, such benami transaction was claimed to be a fake and sham one. It was claimed and contended by Mr. Banerjee that since in case of a mistake of fact, there would be no estoppel, so in this case or on the flats of the same, the theory of estoppel as was sought to be brought in, would have no application. To substantiate such submissions, reference was made to the case of (6) Sudhir Kumar Sadhu & Anr. v. Regional Transport Authority, Burdwan & Ors., AIR 1964. Cal 442. Thereafter, reference was made to Caspersz on Estoppel and more particularly to Article 358, which postulates that grantees are not estopped to deny title of grantor and has laid down that it would be clearly borne in my mind that on the execution of a conveyance of property the grantors right to possession is extinguished and grantee gets the property for himself and is under no obligation to maintain the title of his grantor. He is therefore not estopped from denying the title or seisin of his grantor unless he claims under the deed. An estoppel exists only when there is an obligation, express or implied that the occupant will, at some time, or in some event, surrender the possession, as between landlord or tenant or as between vendor or purchaser before conveyance. On a reference to and the observations in the case of (7) Ram Chandra Chatterjee & Ors. v. Pramatha Nath Chatterjee & Ors., 35 CLJ 146, Mr. On a reference to and the observations in the case of (7) Ram Chandra Chatterjee & Ors. v. Pramatha Nath Chatterjee & Ors., 35 CLJ 146, Mr. Banerjee contended that the landlord’s undertaking for quiet enjoyment by the tenant is implied from the relationship of landlord and tenant. In that case it has also been observed that it is open to the tenant to prove a subsequent cesser of the landlord's title. The estoppel mentioned in section 116 of the Evidence Act refers to the title at the beginning of the tenancy. One way in which the tenant can show that the title has been determined is by proving an eviction by title paramount or the equivalent of such an eviction and it is not necessary for the tenant actually to go out of possession, and, that if upon a claim being made by a person with title paramount, he consents by an attornment to such person to change his title under which, he holds, or enters into a new arrangement for holding under him, this will be equivalent to an eviction and a fresh taking. 15. On a reading of Ext. 7(a) and (b) and after placing them, Mr. Banerjee claimed that when it has been found as a fact that the property belonged to the father, such finding of fact, cannot be interfered with Mr. Banerjee also and further claimed that the point having been raised and the same having been decided as hereinbefore indicated no interference should also be made and it was also his specific submissions that since apparent in this case was not the real, the question of probate was immaterial. It was claimed by Mr. Banerjee that the determinations in the case of, Sri Ram Pasricha v. Jagannath & Ors. (supra), would not be appropriately applicable in the facts of this case. 16. After placing the Schedule to the Will, Mr. Banerjee contended that as the suit has really been disposed of on the basis of title and not only on the basis of the probate, alone, so there is nothing to be interfered with, with the determinations as mace and to establish the case of the decisions an the basis of title, reference was made by him to the cross-examination of P.W.1 where he has stated to have received the property on, devolution after the father, Mongal, Mr. Banerjee then stated that the mother was alive in 1969 i.e., at the time of the Will and she died on 5th September, 1973 but she was left out in the document of partition Ext. 5. It was also contended that in Ext.5 there is (1) no evidence of the story of benami, which was on the plaintiffs and (2) there is categorical statement of acquisition of title. Mr. Banerjee also contended that the onus to establish benami has not been discharged and in view of Ext. 5, the submissions that the Court has proceeded on the basis of probate, should fail. 17. While replying to the submissions on estoppel, Mr. Banerjee made a further reference to the case of (8) Haripada, Bhowmick v. Krishna Chand Arora & Ors., 64 CWN 199, where, in a case under section 16(3) of the West Bengal Premises Tenancy Act, 1956 and while considering the field of operation of estoppel under section 116 of the Evidence Act, when landlord’s title has been denied, it has been observed that the bar of estoppel under section 116 of the Evidence Act would apply against the subtenant, who was the applicant in the original petition under section 16(3) of the West Bengal Premises Tenancy Act only if the present petitioner in the Rule was his landlord and inducting landlord. That is practically the settled law in circumstances like the present and estoppel under section 116, so far as it is relevant in the instant case, should not be extended beyond that. Then, on the question of the effect of attornment as a limb of estoppel, Mr. Banerjee referred to the determination in the case of (9) Mahendra Nath Sardor v. Mahendra Nath Halder, AIR 1948 Cal 141, to the effect, that although a tenant who had been inducted on the land cannot say that his landlord had no title to the land at the time of letting, he can show that subsequent thereto his title to the land had come to an end either by transfer or otherwise. That is a legitimate defence by transfer open to a tenant, and there is no reason why such a defence cannot be considered by the Court on the ground that another person, who is admittedly not a tenant and so an unnecessary party to the rent suit, is not on the record of the suit. Mr. That is a legitimate defence by transfer open to a tenant, and there is no reason why such a defence cannot be considered by the Court on the ground that another person, who is admittedly not a tenant and so an unnecessary party to the rent suit, is not on the record of the suit. Mr. Banerjee then relied on the case of (10) Ketu Das v. Surendra Nath Singh & Ors., 7 CWN 596, for the proposition that the rule that a tenant is estopped from denying the title of his landlord applies only to the title of the landlord who lets the tenant in. If the tenant did not obtain possession from a person who was only recognised as landlord either by express agreement, or by attornment or formal acknowledgment by payment of rent, he may always show that his conduct was due to mistake or ignorance of fact, relating to title, misrepresentation or fraud. It has also been observed in that case that where in a suit for rent the tenant denied the execution of the Kabuliyat propounded by the plaintiffs, pleaded that it was forged and denied payment of rent under it to the plaintiffs, and failed to establish his pleas, the tenant was not entitled to prove that the plaintiffs were not been inducted into the land by the plaintiffs. Lastly, Mr. Banerjee referred to the case of (11) Chenglu Sarkar v. Jaheruddin Mondal & Anr., AIR 1926 Cal 720, for the purpose of establishing his submission on the effect of mistake as indicated above. In that case, it has been observed that the tenant is not estopped from disputing landlord's title if he executed the Kabuliyat through fraud or mistake apart from holding that when either Ignorance of title of the landlord or by fraud in the matter of execution of the Kabuliyat tenants attorned to him, then the tenants are not altogether estopped but can show that the landlord had no title either when the Kabuliyat was executed or attornment was made by payment of rent. It should also be noted that Mr. Banerjee also argued that even though a Court will not pass a decree without the probate but there is also no bar in instituting the proceeding. 18. In reply, Mr. It should also be noted that Mr. Banerjee also argued that even though a Court will not pass a decree without the probate but there is also no bar in instituting the proceeding. 18. In reply, Mr. Mukherjee referred to and reiterated the provision of section 227 of Indian Succession Act and that too for the purpose of establishing that the learned Appellate Court was wrong and not justified in holding that the position in law in respect of a Will is that the same, on the grant of probate relates back to the date of execution of the Will and that too when the section postulates that the probate of a Will when granted establishes the Will from the death of the testator, and renders valid all intermediate act of the executor as such. Mr. Mukherjee also claimed that the learned Appellate Court really failed to construe the admission of the parties in this case and in fact, relevant evidence on admission has been ignored. It was further claimed and contended by him that in view of the admission by the defendants, the title of the plaintiff could not in any event be questioned. In support of such submissions reliance was placed in the case of (12) Kesoram Poddar Vs. Banamali Dey & Ors., 45 CLJ 249. It would appear that in that case, on the 22nd December, 1919, the defendant obtained an assignment of lease for 25 years, dated the 29th July, 1919. The leasehold is a Basti land, which was divided into two portions, one portion was let out to tenants and the other was retained by the defendant. The latter created thereon a pucca house at considerable expense. On the 7th April, 1923, the defendant assigned his lease to A and became a tenant or sub-lessee of the premised comprised in the original lease. On the 20th September, 1923. A assigned in his turn the said lease to the present plaintiffs. The latter created thereon a pucca house at considerable expense. On the 7th April, 1923, the defendant assigned his lease to A and became a tenant or sub-lessee of the premised comprised in the original lease. On the 20th September, 1923. A assigned in his turn the said lease to the present plaintiffs. In a suit for ejectment, the defendant contended that the plaintiffs derived no title by assignment as they were minors at the time of assignment, that the notice was bad in law as it called upon the defendant to quit at the end of the Bengali Month and not at the end of the English month, the tenancy beginning from the 7th April, 1923 and lastly, that in case of ejectment, he was entitled to compensation on account of his erecting the pucca house. it has been held that as the defendant has attorned to the plaintiffs as a tenant, he could not question in any manner whatsoever, the title of his lessors. While on the effect of admission, further reference was made by Mr. Mukherjee to the case of (13) Datltotraya Vs. Ranganath Gopalrao Kawathekar etc., AIR 1971 SC 2548 , where it has been observed that where a person executed a document admitting title of his brother to certain property and alienation by him to a third person the document would be relevant when the same is relied on by that third person, as admission and not as estoppel. 19. In terms of the provisions of section 227 of the Indian Succession Act, the executor receives title under the Will on the grant of probate and as observed in the case of (14) Meghraj v. Krishna, AIR 1946 All 286, all acts done by him in between, in connection with the estate would be valid. The section postulates that the vesting would take place on taking the probate but such fact would relate back to the time of testator's death and in terms of the observations in the case of (15) Gopal Lal v. Amulya Kumar, AIR 1933 Cal 234 and to the estate, which then belonged to him. But that would not mean that there is no Will until probate is obtained. But that would not mean that there is no Will until probate is obtained. In fact, probate is the authenticated evidence of the Will itself from which the Executor derives his title and by virtue of which, the property of the testator vests in the Executor from the death of the testator. A probate as observed in the case of Hem Nalini v. Isolin Saratbasini, AIR 1962 SC 1471 would also be conclusive regarding the appointment of executor and valid execution of the Will. Such a probate would no more than establish the factum of the Will and the legal character of the executor and in any event, the same would not establish the executor's title to the property specified in the petition as belonging to the deceased testator nor the same would establish that such property even existed. Title as observed in the case of (16) Ramkali v. Ramprosad, AIR 1947 Patna 257, would vest from the testator's death and a probate would operate upon the whole estate and the same would establish the Will from the death of the testator and would also render valid, as mentioned hereinbefore, all intermediate acts of the executor as such. The grant of probate would also establish conclusively, the legal character of the person, to whom such grant is made and would also without any doubt establish and would be evidence of the validity and execution of the Will and as observed in the case of (17) Satyacharan v. Rishikesh, AIR 1959 Cal 795 , of the testamentary capacity. The function of the probate Court should be to determine what documents are testamentary and who is entitled to be constituted as the legal representative of the deceased and as such, the primary function of such a Court would be, to deal with the factum and the due execution of the Will and such Court would have no jurisdiction to go into the question of the validity of the provision of the Will and such a Court, would not be competent to find out the intention of the testator. The probate Court's jurisdiction is confined to deciding whether the instrument is testamentary and would entitle the probate and the appointment of executor. As indicated earlier, it would be no part of the function of such a Court to construe the Will, except only for the purpose of ascertaining the appointment of a executor. The probate Court's jurisdiction is confined to deciding whether the instrument is testamentary and would entitle the probate and the appointment of executor. As indicated earlier, it would be no part of the function of such a Court to construe the Will, except only for the purpose of ascertaining the appointment of a executor. Thus, the grant of probate would be conclusive evidence of the factum of a Will and would be conclusive as to the issues directly involved in the probate proceedings e.g., the validity of the Will and the appointment of the executor and it would not be a function of such a Court which grants the probate, to decide the question of title or to interpret the true meaning of the Will and such causes are to be decided in a regular suit. The only thing which the probate Court has to see is that the person applying for the grant is entitled to represent the estate of the deceased. A contest for probate is a suit to try the question of testate or intestate; but administration is a matter of civil right and falls within the jurisdiction of the appropriate Court and when a probate proceeding is contested, the Court of course, will have to see and try one suit between the parties and which involved the question whether the plaintiff is entitled to have the grant of probate or whether the person who has entered a caveat and who has become defendant, has substantiated and proved the defence as put forward. 20. On the basis of the interpretation and also on consideration of the submissions and the case as indicated above on section 227 of the Indian Succession Act, it cannot be held in agreement with the learned Advocates for the appellants, that the learned Appellate Court was wrong in his determination, as made and that too when the executor derives title under the Will on the grant of probate and the vesting would be effective on taking the probate and such fact would relate back to the time of testator's death and to the estate or the title would vest from the testator's death. The functions of the probate Court have been indicated hereinbefore. The functions of the probate Court have been indicated hereinbefore. I am of the view and indicated earlier that the learned Appeal Court was not wrong in the determination of the point as made, rather and really, such determination was meant by the concerned judgment. 21. Section 116 of the Evidence Act or the theory or estoppel as pleaded in the manner as indicated above, would certainly have application, if there was no mistake of fact and perhaps Mr. Banerjee's submissions on the point that the case of benami, which was initially believed to be a genuine one, caused a mistake in the minds of the defendants, as such case was thereafter found to be a fake or sham one and more particularly when the property in question has acquired in the name of the father and during his life, but no steps were taken by the plaintiff or their co-sharers to the establish benami transaction, as alleged. 22 It cannot also be doubted that in a Second Appeal, ordinarily, findings of fact arrived at, on due consideration of evidence cannot and should not be interfered with and as such, when the determinations by the learned Courts below have been made on consideration of Ext. 7(a) and (b), it becomes difficult for this Court to interfere. Really and in fact, Mr. Banerjee was justified in claiming that the suit in the instant case was disposed of on the basis of title and not only on the basis of the probate alone. Such submissions of Mr. Banerjee were also justified on the basis of the cross-examination of P.W.1. Further, there is no doubt that the onus to prove and establish benami in the instant case was on the plaintiffs and such onus has not been discharged duly and the submissions of Mr. Mukherjee that the learned Court below had proceeded on the basis of the probate alone, should fail, because of the contents of Ext.5, where there is no evidence of the story of benami and there has been a categorical statement of acquisition of title. 23. Such and above being the position, this appeal should fail and the same is dismissed without any order of costs. 23. Such and above being the position, this appeal should fail and the same is dismissed without any order of costs. The facts and points of law involved in Second Appeal No.985 of 1977 being the same as in Second Appeal No.984 of 1977 the order which I have proposed there, would also govern that appeal. Thus, the said Second Appeal No.985 of 1977 also fails and the same is dismissed. There will be no order as to costs.