Judgment Ajoy Nath Ray, J. We have heard two appeals from the same decree, which is a preliminary decree for partition. 2. The only property centering which arguments have been made in these appeals is premises No. 9/4 Middleton Row. It measures some 1 bigha 6 cottas of land and is situated in one of the best localities in mid-town at Calcutta. 3. Although the decree was passed on 23rd December, 99 the suit had been instituted as early as in 1981. It was a partition suit amongst the heirs of one Balai Chand Ghose, deceased, who died on the 16th August, 1980 having led a full and rich life. 4. He left behind him two mourning widows, his first wife having predeceased him in his lifetime. There were 9 other heirs of Balai Chand Ghose and the partition suit was, inter alia, amongst these progeny and the wives. 5. Other property than the one mentioned above was also involved in the suit, but we are not concerned with these. At the time of his death, Balai was living with his third wife Mamanta and his only issue by her, Arindam. They were the first two defendants in the partition suit. 6. The plaintiffs were ........ the second wife of Balai, namely, Nirmala and her children, the younger son Bhabesh being the plaintiff No.4 playing an important role in the shape of the only witness who came to give evidence on behalf of the plaintiffs. During the lifetime of Balai, there was a litigation between him and his second wife Nirmala about 9/4 Middleton Row. It stood in the Benami of Nirmala but the real ownership of Balai was established by decree and that is not challenged before us. 7. Sometime after the suit was filed in 1981, there was a substitution application made by Arindam in regard to a Debuttar matter and therein an order was passed at Alipore, sometime in the year 1982 permitting substitution of Arindam as executor of Balai appointed by his will, upon Arindam depositing a copy will within a named date in that very same year. 8. This Will of Balai is an important matter in the decision of these two appeals. This is a document of 1977. It has been registered although a Will, as is well known, is not compulsorily registable. Arindam is the named executor in the Will. 8. This Will of Balai is an important matter in the decision of these two appeals. This is a document of 1977. It has been registered although a Will, as is well known, is not compulsorily registable. Arindam is the named executor in the Will. We have directed the Will to be kept in the safe custody of the learned Registrar, Original Side of our court. 9. Although Arindam got himself substituted in a legal proceeding in 1982 and mentioned about Balai's Will and his executorship, he had not then mentioned that he had obtained a probate of the Will by that time, granted on 29/31.7.1981. Although Arindam had applied for his substitution as Balai's executor in the next year after he had got the grant, he kept the probate obtained at his instance and granted to himself a secret. 10. Arindam has proved in the hearing of these two appeals to be quite a slippery customer. He put in an appearance through a learned advocate before us. But he had left him so ill-instructed, that the learned Advocate was not even able to say before us whether Arindam was supporting the appeals or not. Soon thereafter, Mr. Saptangsu Basu, the learned Advocate prayed for leave to retire for lack of instructions and we granted him such leave. One day in court Arindam had also come and we became aware of him because learned Counsel appearing said that Arindam is in court; so far as we remember, although we would not like to lay a wager on this, Arindam appeared to be a well built, tall, and hefty person with shifty eyes. Thereafter, after Arindam walked out of the court room, he never came again. Mr. Saptangsu Basu, learned advocate, also had no further role to play at the hearing of these appeals. 11. The appellant in these appeals are not any of the heirs of Balai. They are all added defendants, the addition taking place some 13 years after the filing of the suit, that is, sometime in 1994. 12. The 14 defendant Crystal Developers claim to have purchased the entire right, title and interest in the premises (hereinafter meaning 9/4 Middleton Row only) by virtue of a registered deed of conveyance dated the 4th August, 1981. 13. This Deed of Conveyance requires mention in detail, which is important like Balai's Will. 14. 12. The 14 defendant Crystal Developers claim to have purchased the entire right, title and interest in the premises (hereinafter meaning 9/4 Middleton Row only) by virtue of a registered deed of conveyance dated the 4th August, 1981. 13. This Deed of Conveyance requires mention in detail, which is important like Balai's Will. 14. There are four parties to this conveyance. The conveying party is Arindam Ghosh in his capacity as executor of Balai's Will. The taker is Crystal Developers. The third party is a confirming party being Arindam Ghosh himself in capacity as legatee and beneficiary under Balai's Will; if the Will were to remain probated then under its terms Arindam would be full beneficiary of the premises. The fourth party are the persons who entered into an agreement for sale with Balai in 1979. They are also confirming parties. 15. The agreement for sale with Balai was entered into by the Doshi's, being the confirming parties by way of two written registered agreements. The first of those is dated in March 1979 and the second is dated in July 1980, less than a month before Balai's expiry. Both these agreements for sale including the last supplementary were signed by Arindam as the Power of Attorney holder of Balai. 16. When in 1982 Arindam got himself substituted as executor of Balai's Will not only did he keep silent about the grant of probate but he also kept quite silent about the conveyance dated 4th August, 1981 by which he had purported to give away the entirety of the premises to Crystal. 17. Sometime in or about 1986, the other heirs of Balai than the defendant Nos. 1 and 2 appear to have come to know of the grant of probate. The fourth plaintiff Bhabesh applied for revocation of grant which application failed. Then a second application for revocation was made by two daughters of Nirmala and Ramesh, her elder son. This application succeeded and probate was revoked in 1987. The reason for revocation is not apparent from the revoking order. However, we have somewhat seen some of the papers in the probate proceedings, by guilty production of those ourselves, and it appears that in the petition for probate, where the heirs of Balai as on intestacy are mentioned the two daughters of Nirmala are not named at all. 18. The reason for revocation is not apparent from the revoking order. However, we have somewhat seen some of the papers in the probate proceedings, by guilty production of those ourselves, and it appears that in the petition for probate, where the heirs of Balai as on intestacy are mentioned the two daughters of Nirmala are not named at all. 18. Although Arindam has appeared and disappeared before us, he gave evidence at Alipore. His explanation was that he did not put in the names of the two daughters of Nirmala because they got nothing under the Will. 19. It is an important matters that 13 years after the grant of probate was revoked, no substantial steps have been taken for proving the Will before the Court again, neither by Arindam as executor, nor by any other party for obtaining Letters of Administration with copy Will annexed, should the prospective propounder fail or neglect to act in the matter of getting the Will probated. 20. Crystal took some steps in regard to the premises, which we shall mention hereinafter, and in 1991 sold the premises by 6 several deeds of conveyance to defendant Nos. 15 to 20, both inclusive. They were also added to the suit along with the Crystal in 1994. We shall mention the defendant Nos. 14 to 20 compenotously as purchasers unless the context should require a differentiation between them to be made as purchasers and subsequent a takers from them. 21. Evidence was given both on behalf of the purchasers and the subsequent takers. The subsequent takers have deposed that flats have been constructed and 13 of those flats have been handed over to persons who were described to be in permissive occupation. 22. An important point to consider in determining the effect of the conveyance dated 4th August, 1981, is that if Arindam had been the conveying party as legatee and beneficiary and a confirming party as an executor, the purchasers would not have a word to say in respect of the ownership of the premises today. This is simply because they would be unable to rely upon the title of Arindam. The title of Arindam as legatee must be established through the Will of Balai and the Will of Balai can be established only by production of probate. Section 213 of the Indian Succession Act, 1925 is only too clear on this point. 23. This is simply because they would be unable to rely upon the title of Arindam. The title of Arindam as legatee must be established through the Will of Balai and the Will of Balai can be established only by production of probate. Section 213 of the Indian Succession Act, 1925 is only too clear on this point. 23. The appellant have argued these appeals before us for days together only because Arindam has conveyed in the Deed of 4.8.1981 as executor, and has confirmed as legatee. It is submitted on behalf of the purchasers that a conveyance by Arindam as executor of a then probated Will, of which the probate gets subsequently revoked, is effective, and remains fully effective, notwithstanding the later revocation of the probate. 24. To our query, whether the appellants were resting their case on the shifting hands of conveyancing jugglery only, the pointed answer of Mr. Mitra appearing for the defendant No. 14 was that it was not conveyancing jugglery, but good, proper and substantial conveyancing. 25. This is the primary point of substance which we have to examine in determining these appeals. If the conveyance by the executor remains good, the revocation of probate notwithstanding, the purchasers establish a substantial case. If, however, the Will has to be looked at somehow for determination of the substantial rights of the purchasers, then in the matter of proof of the substance of their title, the purchasers must necessarily fail. We shall examine this important and interesting question presently but after a short and necessary digression. 26. A simple answer which would come to anybody's mind before making the above enquiry would be , why not wait until the Will has been probated, or otherwise admitted to be proof. If the probate goes through, the academic question of the executor's conveyance will become wholly otiose because Arindam will become beneficiary executor, and the second wife's branch and the first wife's branch would not be able to challenge the claims of the third wife's branch, in the shelter of whose arms Balai breathed his last. 27. The learned Judge who passed the preliminary decree for partition has expressly noted an order dated 29.11.99 passed by the Hon'ble Justice Bhaskar Bhattacharya of our High Court requiring disposal of the suit by 31.12.99. 27. The learned Judge who passed the preliminary decree for partition has expressly noted an order dated 29.11.99 passed by the Hon'ble Justice Bhaskar Bhattacharya of our High Court requiring disposal of the suit by 31.12.99. When we enquired of the origins of this order, we were shown a Division Bench order dated 27.7.98 wherein the Division Bench itself had fixed a date for disposal of the suit. The matter had come before the Division Bench-from an injunction application made in the suit itself. Needless to mention the title of the purchasers being in issue further change of hands or possession was most undesirable. However, the matter was not left merely at the stage of decision of the interlocutory prayers but directions for disposal of the suit itself were also given. As the Will of Balai was not being got proved by any party interested, the learned Judge in the lower court had no alternative to disposal of the suit, leaving the Will in its state of limbs. 28. Before us, the appellants prayed for a hearing on mentioning made on behalf of the defendant No. 14. It was submitted that the hearing will take two hours, but we blame nobody in regard to that wrong assessment, which is sometimes made without any error or blame. 29. During the hearing of the appeals, we have again and again asked the purchasers, will you wait and try to see if the Will of Balai can be got proved and do you want the decisions in these appeals to be taken thereafter? Again and again the purchasers have told us, of course in the politest of language, why should we wait, we have a good title now, we are in possession, we shall go on with the hearing of the appeals and we submit we are entitled to favourable decisions. 30. Thus the Will of Balai remains in an uncertain state in the safe custody of the learned Registrar, Original Side, and we go on delivering our judgment in these two appeals. 31. Since nobody has any interest apparently in getting the Will of Balai proved, and since the purchasers pray for decision in these two appeals, the revocation of probate notwithstanding, we have to decide the interesting question of the executor's title. 32. Under section 211 of the Indian Succession Act, 1925, the property of the deceased vests in the executor. 31. Since nobody has any interest apparently in getting the Will of Balai proved, and since the purchasers pray for decision in these two appeals, the revocation of probate notwithstanding, we have to decide the interesting question of the executor's title. 32. Under section 211 of the Indian Succession Act, 1925, the property of the deceased vests in the executor. Section 211 sub-section (1) is quoted below: "211.(1) The executor or administrator, as the case may be, of a deceased person is his legal representative for all purposes, and all the property of the deceased person vests in him as such." 33. We have already mentioned that to prove an executor's right, grant of probate has to be produced. Section 213 sub-section (1) is quoted below in this regard: "213.(1) No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted probate of the Will under which the right is claimed, or has granted letters of administration with the Will or with a copy of an authenticated copy of the Will annexed." 34. The law is that an executor can file a pleading before the court even without obtaining probate, but finally to establish the right as an executor and to obtain a decree, the probate has' to be produced. The judgment of Justice Anil Kumar Sen (As His Lordship then was) reported at (1988) 1 CLJ 38 might be conveniently referred to in this regard. 35. Under section 227 of the said Act, the probate validates all actions taken at the intermediate stage by the executor. The said section is quoted below: "227. Probate of a Will when granted establishes the will from the death of the testator, and renders valid all intermediate acts of the executor as such." Under section 307 the executor is permitted to go on acting even before obtaining probate. Such action includes even disposal of the deceased's property. Sub-section (1) of section 307 of the said Act is quoted below: "307(1). Subject to the provisions of sub-section (2), an executor or administrator had power to dispose of the property of the deceased, vested in him under section 211, either wholly or in part, in such manner as he may think fit." 36. Sub-section (1) of section 307 of the said Act is quoted below: "307(1). Subject to the provisions of sub-section (2), an executor or administrator had power to dispose of the property of the deceased, vested in him under section 211, either wholly or in part, in such manner as he may think fit." 36. Under the Indian Succession Act debtors to the Estate paying the money due bona fide to the executor get a valid discharge, notwithstanding a later revocation of the grant. Section 297 of the Indian Succession Act, 1925 is set out herein-below in this regard: "297. When a grant of probate or letters of administration is revoked, all payments bona fide made to any executor or administrator under such grant before the revocation thereof shall notwithstanding such revocation, be a legal discharge to the person making the same; and the executor or administrator who has acted under any such revoked grant may retain and reimburse himself in respect of any payments made by him which the person to whom probate or letters of administration may afterwards be granted might have lawfully made." 37. This section envisages payment by debetors to an executor, acting on a grant of probate, operative for the time being, provided the payments are made bona fide. 38. There is unfortunately no section like section 297 which deals with the reverse situation, that is, the situation of disposal of property by the executor during the continuance of the grant of a probate which later gets revoked. 39. Thus arises the important and interesting question debated before us. 40. Before we discuss the case law we should bear in mind the two possible answers which could be given to the question of the temporary executor's sale, if we might use this somewhat loose, but convenient, expression. 41. One answer would spring from the well known principle applicable in the matter of sale of goods, which is Nemodat Quod Non Habet. No one can give what he himself does not possess. This principle would squarely apply against the appellants, were Arindam to convey as legatee and beneficiary on 4.8.81; today there is no probate, today Arindam cannot prove that he had absolute interest in 9/4, Middleton Row. No one can give what he himself does not possess. This principle would squarely apply against the appellants, were Arindam to convey as legatee and beneficiary on 4.8.81; today there is no probate, today Arindam cannot prove that he had absolute interest in 9/4, Middleton Row. Section 227 cannot operate because there is no probate; the purchasers would be defeated by the simple plea that Arindam could not sell away the premises because he never had it. 42. It is possible, or rather, it was possible, for the law of executors to proceed in the above way too, but it has not proceeded in that way. The second answer, which is possible to give, in regard to conveyances by persons who have imperfect title, is the answer given by the doctrine of protection afforded to the innocent third party; the Namodat principle' is one of the principles in the hard core of common law; similarly, the doctrine of protection of the bona fide purchaser for value without notice, is in the hard core of the doctrines of equity. The executor has been dealt with similarly as persons who are entrusted with the legal estate impressed with trusts, although an executor is not a trustee square and proper. The position of the executor has to be examined both legally (including equitably) and historically to understand his exact status. 43. The glorified executor of today, in whom the deceased's property vests is not, as might be supposed, centuries old; this executor with vested property is barely more than a century old. Before 1898, the law in England as to reality was that the reality of the deceased did not vest in his personal representative (which includes an executor), but went immediately to the heir or devisee as the case might be. See in this regard page 543 of 'The Law of Real Property, 1966, 3rd Edition, written by His Lordship R.E. Megarry, who was then Queen's Counsel and the celebrated Prof. H.W.R. Wade, better known for his treatise on Administrative Law. Though the book is a detailed and an accurate one, it is no more than a students' manual; also the edition is 34 years old. There is a good justification for using the book, nonetheless. 44. H.W.R. Wade, better known for his treatise on Administrative Law. Though the book is a detailed and an accurate one, it is no more than a students' manual; also the edition is 34 years old. There is a good justification for using the book, nonetheless. 44. The point which crops up for decision is one relating to executors, closely connected with equitable doctrine, since our Independence and since the adoption of our Constitution, thereafter because of the Governmental policy of nationalisation and Governmental controls the Government has been the most important litigant in our Courts. The result has been that there is a huge crop of public law cases. As compared to this crop, the cases decided on such private law matters as tort or equity are incomparably few in number. Thus we have many experts in many branches of the law, but where equitable doctrines and principles are concerned, even the experts have to go back to their student days and students' books. 45. Now as to the old edition; after the adoption of our Constitution in 1950 we do not use the decisions given by English Courts, not even as persuasive decisions unless the field of the decision is appropriate for use by Indian Courts in India. 46. Article 372 of our Constitution validates laws in force at the date of adoption of it. Article 372(1) is not set out below in as it is easily available. 47. What the body of this law in force exactly is, is incapable of exact enumeration. It is quite clear that these laws in force were in force just before the adoption of our Constitution, on the basis of some other Constitution or primary validating law. Before the independence of India the validating force would have been that of the British Constitution. The body of general laws including common law and equity which was in force at the date of adoption of our Constitution was huge. Numerous common law and equitable doctrines were useable in India, a rich and prosperous country as it was on the day of winning of independence. Calcutta was known as the London of the East. The body of general laws including common law and equity which was in force at the date of adoption of our Constitution was huge. Numerous common law and equitable doctrines were useable in India, a rich and prosperous country as it was on the day of winning of independence. Calcutta was known as the London of the East. All general equitable doctrines could be used by the Courts, including High Courts at Calcutta, immediately after the 26th of January, 1950, unless it could be shown that the use of such general equitable doctrine came in conflict with some Indian law, some Indian practice or some other special and typical Indian factor. The situation has remained so ever since. We therefore have, served to us on a plate, the well developed general doctrine of equity to be picked up and used by the law courts in India whenever they should find use for those, provided the doctrines are not in conflict with other Indian laws, say the Trusts Act of 1882, or the Specific Relief Act (now of 1963) or the Transfer of Property Act, 1882. Where the general body of equitable doctrines is concerned, a reputable English book of 1966 is perhaps of more use and more value to an Indian Court than one of the year 2000. Thus we draw freely upon the sources of M.W. (Megerry & Wade) in the confidence, that if a celebrated English Judge and a celebrated English Professor of Law do not know equity, then American Scientists do not know modern engineering and Indian Yogis do not know religion. 48. Reality thus passed in England directly without the intervention of the executor, vesting straight in the legatee, before 1898. The present executor as we know him, first appeared in England by reason of the enactment of the Land Transfer Act of 1997, and under that Act until the great real property legislation of 1925 in that country, all property whether real or moveable vested in the personal representative, including the executor after the death of the devisor (M.W. pages 544-545). 49. The statutory executor, the vested executor, in whom the property of the deceased vested irrespective of reality or personality, made his appearance in the statute book in India, before he appeared in an Act of Parliament in the native English soil, where the law of executors, like so much other law, was born. 49. The statutory executor, the vested executor, in whom the property of the deceased vested irrespective of reality or personality, made his appearance in the statute book in India, before he appeared in an Act of Parliament in the native English soil, where the law of executors, like so much other law, was born. 50. In the making of the necessary research for finding out the details of this rarely discussed branch of law, we made a little bit of our own research but we were greatly assisted by the industry and experience of the learned counsel appearing. Mr. Anindya Mitra appearing for the defendant No. 14 opened his appeal first and he made well-informed and exciting arguments as is customary with him. His arguments were adopted by Mr. Pal appearing for the subsequent takers but he did not stop merely at adoption of arguments, but made considerable arguments on his own and cited several authorities too. The preliminary decree for partition was principally supported by Mr. Dasgupta who appeared on behalf of the branch of the second wife. His arguments were adopted by Mr. Banerjee who also made submissions on facts; he appeared for the children of the first wife, who, as we have mentioned, had the pre-deceased Balai. 51. The appearance of the vested executor in India was more or less with the passing of the 5th Act of 1881, being the probate and administration Act. This Act along with the Hindu Wills Act (21 of 1870) were replaced by the corresponding provisions, with- additions and amendments by the Indian Succession Act of 1925. 52. Mention of these two Acts would be found in a case given by Mr. Pal, being an advisory opinion of the Judicial Committee given in the case of Venkata Subamma, reported at A.I.R. 1932, Privy Council, page 92. Section 4 of the Act of 1881 was the vesting section parallel to section 211 of 1925. Section 90, subsection (2) of that Act was parallel to the present Act section 307, which gives the executor power to deal with and dispose of the deceased's estate, even before obtaining probate. In this case it was clearly laid down that in view of the terms of these sections it would be impossible to hold that before probate nothing vested in the executor and that he had no power of disposal at all. 53. In this case it was clearly laid down that in view of the terms of these sections it would be impossible to hold that before probate nothing vested in the executor and that he had no power of disposal at all. 53. The Division Bench judgment of the Bombay High Court in the case of Sir. Mohamed Yusuf, reported at AIR 1922 Bombay, page 392, also given by Mr. Pal, is an authority for the proposition that an executor can act even without the grant of probate. The statutory sections contemplate even disposal of immovable property by the executor without a probate. That the executor needs to produce the probate for establishing in any court a right flowing from the Will does not militate against the executor's power to act before probate. It was laid down that, probate is conclusive, but such conclusiveness does not impliedly negative the title of the executor in its absence. It is also noticed that...."it is a common place of English law that an executor derives his title from the Will and not from the probate...." 54. It is therefore an indisputable proposition of law that the disposal of an estate by an executor cannot be negatived because, and only because there is no subsisting probate to validate the Act of the executor as per section 227 of the Act, 1925. If he can act without probate, he can act with probate, which is later revoked. 55. An exact case on all forms with the facts of ours could not be found and usually such an exactly fitting case cannot be found. There was no case where the disposal had been made by the executor during the substance of a probate later cancelled, and in which case the Will had also been left by the parties in a state of derelict neglect, like here. 56. Two cases could be found where the executor had acted on a probated Will, the probate of which was ultimately cancelled, and the re-grant of which probate was, by the facts of the cases, shown to be impossible to obtain once again in the future. Let us discuss these two cases now. The first is the case of Debendra Nath Dutta where the Judicial Committee affirmed a judgment of the Calcutta High Court but on a different reasoning than adopted here. Let us discuss these two cases now. The first is the case of Debendra Nath Dutta where the Judicial Committee affirmed a judgment of the Calcutta High Court but on a different reasoning than adopted here. In that case, one Cowie, whom Lord Macnoghten described as a rogue and an imposter, had set up a false Will, obtained Letters of Administration with two sureties, and on the basis of that grant had obtained the possession of certain shares, after disposal of which he absconded. He was later apprehended and punished. The Administrator General of Bengal, on assignment sued the two sureties for the lost value of the shares, and Debendra Nath Dutta, one of the two, took the decision to the Privy Council. The argument before the Judicial Committee was that the Will set up by Cowie was fraudulent and non-existent and therefore the grant of the Letters of Administration was void ab initio; if that be so there could not be any surety to support a void grant. 57. This argument was negatived by the Judicial Committee. In the extremely short opinion it is quite clear that the judgment was given on the policy of the Court having to protect the third parties who might, in some cases, innocently act on the basis of grant given by a court under its seal. 58. It is really a question of finding out where the loss will lie once the fraud has been committed. In giving an answer to this question in a situation of the nature we are now discussing, the court has again and again protected the innocent third party, and the court has not applied mechanically the ordinary rule applicable to chattels, if there is no good title, none can be passed. 59. The decision of the Special Bench of the Calcutta High Court, which the Judicial Committee affirmed in the above case is reported at 3 C.L.J.422 and ILR (1906) 33 Cal 713. Unlike the Judicial Committee the Special Bench had proceeded on the basis that the grant obtained by Cowie was void, but Debendra Nath Dutta lost on a construction of the terms of the surety bond. In opining the grant to Cowie as void, the Special Bench had relied upon certain English decisions which need not be mentioned by us in details. In opining the grant to Cowie as void, the Special Bench had relied upon certain English decisions which need not be mentioned by us in details. Suffice it for us to state that those decisions, which were English decisions, were overruled latter in England in the case of Hewson vs. Shelley, reported at (1914) 2 Chancery 13. There is also an interesting sequel to Devendra Nath Dutta's case in the case of Craster vs. Thomas, reported at (1909) 2 Chancery 348, where purchaser of the shares frauduently got released by Cowie, namely, one Thomas, was successful in proving his status as bona fide purchaser of the shares for value without notice. He could maintain the shares, notwithstanding the initial fraud of Cowie, because Thomas was a party dealing at arms' length, away from Cowie and unconnected with him. 60. Rare is the case of the third party purchaser without notice. The equitable doctrine of the bona fide purchaser for value without notice is as common, as his actual and practical appearance in the case book is rare. We shall discuss this point further as this is at the heart of the matter but the case of Thomas is interesting to note, as it is a rare instance of a person proving his third party status. The other case, where the executor had acted on a probate which was later revoked is the case of Akshoy Kumar Pal, a decision given by S.R. Das, J. as his Lordship then was, reported at I.L.R. 1946 (1) Calcutta 432. There the grant of the first Will failed because of the discovery of a second Will and everybody accepted that the first Will was for all practical purposes dead for ever. In the decision, the Court came to the finding that the claimant had been unable to prove the status of bona fide purchaser for value without notice. The Indian Succession Act and its several sections were noticed by the court in great details, Section 297, which protects bona fide debtors to the estate dealing with an executor with a temporary grant was particularly noticed. The learned Judge however said as follows:- "In my opinion, section 297 is only illustrative and not exhaustive and has been inserted in the Act ex abundante equtela (page 437)". 61. The learned Judge however said as follows:- "In my opinion, section 297 is only illustrative and not exhaustive and has been inserted in the Act ex abundante equtela (page 437)". 61. His Lordship also noticed the English Administration of Estate Act, 1925 giving statutory effect to the decision in Hewson vs. Shelley which we have mentioned above. 62. With the greatest of respect, in our opinion, section 297 was not inserted ex abundante equtela, but it was inserted because the position of the vested statutory executor needed clarification by appropriate statutory provisions. The debtors to the estate dealing with the executor are dealt within section 297. If we had a section, for all persons dealing with executors operating under a temporary grant we would not have to discuss so much law as we are discussing now; but that section is not there. Thus section 297 is not only otiose but it shows its necessity, by the contrast that the absence of a similar section, dealing with purchasers from the executor, makes with it. 63. Though we do not have such a section, such a statutory provision was inserted in the said Administration of Estates Act, 1925 in England. Section 37 sub-section (1) of the said Act is as follows:- (The sections may be seen in Williams and Mortimer on Executors, Administrators and Probate; I have consulted the 1970 edition nsp pp 445, 848, 356, 1062 and 1076):- "Validity of conveyance not affected by revocation of representation- 37.(1) All conveyances of any interest in real or personal estate made to a purchaser either before or after the commencement of this Act by a person to whom probate or letters of administration have been granted are valid, notwithstanding any subsequent revocation or variation, either before or after the commencement of this Act, of the probate or administration." 64. The word 'purchaser' occurring in this section, the absence of which in our Act of 1925 we once again lament, is defined in section 55 sub-section (xviii) of the said English Act as follows :- ‘"Purchaser" means a lessee, mortgagee or other person who in good faith acquires an interest in property for valuable consideration, also an intending purchaser and "valuable consideration" includes marriage, but does not include a nominal consideration in money;’ 65. Although the above sections we do not have, in our opinion, the principle enacted in those sections is applicable in India with all force. In other words, if from an executor operating under a probate, later revoked, a bona fide purchaser takes property of the deceased, without any notice of any fact, which gives the purchaser notice of his possibility of defeating the interest of another person, whether taking under the Will or under possible intestacy, and if the purchaser also pays valuable consideration, and is, in substance, a bona fide third party acting on the grant by placing reliance on the seal of the court from where it is issued, the purchaser shall be protected. Such protection the court shall extend, if only for the purpose for upholding the value, importance and dignity of its own grant and its own seal. If however, the purchaser has notice of possible estates or interest which he might be defeating by his purchase, if he is but a third party in the grey area, and not clearly so, if he could have made reasonably more enquiry before his purchase, if he had acted too hastily, if he had acted in such a manner that he might complete his title before any unwelcome embarrassing knowledge might come to him, if there are any of these factors, then the third party is not a true 3rd party, and he cannot defeat an estate or interest. 66. The situation of the executor dealing with the estate on a later revoked probate, is different from an executor dealing with an estate on a probate which is never revoked, but in spite of which, questions arise as to whether the executor properly dealt with estate of the deceased. This might be the situation where the legatees or beneficiaries challenge a disposal or mortgage by the executor, alleging that, by such act of the executor, their interests have been unduly affected, and the taker from the executor or the mortgagee cannot take in difference of the beneficiaries' interest. These cases are interesting, but these are on facts which are so dissimilar to ours, that drawing a parallel from these cases to our case, would be, in our opinion, dangerous. One such case, of the situation of a valid Will, given by Mr. These cases are interesting, but these are on facts which are so dissimilar to ours, that drawing a parallel from these cases to our case, would be, in our opinion, dangerous. One such case, of the situation of a valid Will, given by Mr. Mitra was the decision of the Judicial Committee in the case of Sunil Kumar Kerr, reported in AIR 1940 Privy Council, page 30. There a mortgagee by the executor was in issue. The Judicial Committee was asked to consider the argument that "in a question between the executors and the beneficiaries, the executors were not entitled to use the immovable properties for the purposes of business." The business related to the well-known book sellers R. Cambrig. The Judicial Committee said as follows:- "... the question must be whether the proposed lender had a duty to enquire into facts outside the Will as they existed immediately prior to the testator's death. Their Lordships are unable to hold that the mortgagees had any such duty, and the nature of the enquiry held in the present case and the decisions below, show how impractical it would be ........ the statutory powers conferred by section 307 on executors in India would be nullified, if such a duty of enquiry was imposed on parties dealing with executors." 67. If this dictum, cut off from the facts and the situation, is applied without due appreciation of the facts in our case, we might well reach the unjust result of protecting a third party who knows of the facts known to the executor, either actually or constructively, and who is able to establish that on the basis of the Will itself no adverse notice can be imputed to him. When we see the facts regarding notice in detail, we shall easily appreciate why the will and the Will alone is not the end of the matter in this case. Even at this juncture we should point out that it is not the beneficiary under the Will who would be protected if the executor's disposal fails here; the beneficiary is Arindam himself; the person who would be protected on the failure of Arindam's disposal as the heirs as an intestacy of Balai, two daughters of whom are not even mentioned in the Will. The Will is not the only or the most important document here. 68. The Will is not the only or the most important document here. 68. The case of Adoline Mande, reported at AIR 1950 Cal 559 , is also not a revocation case. The Division Bench of our High Court said in that case at paragraph 35, that the alienee from the executor is not bound to see to the application of the money obtained by him. However, the immunity of the aliance is lost if he has notice, actual or constructive, of the title of other persons and of the fact that the executor is acting in breach of trust. The Division Bench quoted from Lord Kenyon ;"Let the executors do their duty and let the authority cease when injustice begins." (Watpins vs. Cheek, 25 E.R. 181). 69. We respectfully agree with the spirit of this paragraph which is thoroughly consistent with the spirit of equity. Another case of the executor's dealings with the estate is that of G.F.F. Foulkes, a Division Bench judgment of the Madras High Court reported at AIR 1951 Madras page 296. In dealing with alienees from executors, the Division Bench opined at paragraph 16 that the transaction must stand unless the purchasers were privy to a breach of trust committed by the administrator. Their Lordships said as follows: "It is a general rule of law and equity in England and that rule is followed in India '(please note here our discussions on the Law in force as per Article 372') that an executor might dispose of the testator's assessts over which he has an absolute power and they cannot be followed either by the creditors or by the legatees into the hands of alienee. But neither jurisdiction will permit the rule to be observed so as to protect a disposition founded on fraud or a transaction amounting to a breach of trust, concerted between the executor or administrator and the purchaser." 70. It will be seen from some of the above decisions, that although the executor is not in equity, at all times a trustee, yet the fiduciary duty of the executor is noticed; beneficial interests to be protected by the executor are also noticed, and the possible breach of trust by the executor is also noticed. If the executor is not a trustee, in spite of this, then what is he? 71. If the executor is not a trustee, in spite of this, then what is he? 71. The point to understand is that an executor is not a trustee of the estates or interests devised under the Will immediately on the death of the deceased, because the debts of the estate also have to be paid. The executor can, in proper discharge of his duties to the estates, sell a property left behind by the deceased; then he will defeat the interest of the legatee in that property; the executor might well do so, if he is acting fairly and honestly. The purchaser taking from the executor, when he is acting in due administration of the estate, is fully protected, and no equitable interest can be set up by a prospective legatee. Thus the executor is not always a trustee but he becomes a trustee when the administration of the estate is complete, and all that is left for him to do is to give assent to the different legacies. 72. Once this is understood, it will be appreciated why the executor is not deal with as per the provisions of the Indian Trusts Act, 1882, but is dealt with on the sections of the Indian Succession Act, 1925, and the general law of executors and administrators as pronounced by Judges in different courts from time to time. An executor is a statutory creature; an executor is not exactly a trustee, but then, an executor has to act properly like a trustee, he has to protect interests which were confided to him by the deceased in the Will, he has to see to it that a third party does not unduly defeated legacies which might take the effect later on. 73. This point of the executor not being exactly a trustee, but also not being never a trustee, would be seen clearly from the judgment given in the case of Raghavalu, reported at AIR 1950 Madras page 790 (affirmed in AIR 1992 SC page 446); both cases were given by Mr. 73. This point of the executor not being exactly a trustee, but also not being never a trustee, would be seen clearly from the judgment given in the case of Raghavalu, reported at AIR 1950 Madras page 790 (affirmed in AIR 1992 SC page 446); both cases were given by Mr. Mitter and he correctly explained that in that Income Tax situation which was before the Madras Division Bench the Court ruled that the income would be of the executor before completion of administration, but would be of the beneficiary under the Will after completion of administration, because after such completion the executor becomes a trustee proper, and the beneficiary gets the interest under the Will under which he becomes a cestui que trust. Mr. Mitter also gave us the case of Sailaja the judgment of Sir Ashutosh, reported at 19 CWN page 240, which is an authority for the proposition that revocation is not retrospective, and the work of the executor done prior to revocation do not fall with such revocation. 74. We are therefore of the opinion that in the situation of dealings with real property by an executor, operating under a grant which is later revoked, the equitable doctrine of bona fide purchaser for value without notice operates. 75. This doctrine is one of basic justice, and was one of the first concepts adopted by the courts of equity. Such is the strength and wisdom of this doctrine that it operates even in situations which are not strictly equitable. 76. From the discussions which have taken place before us, we have found the operation of this doctrine in several situations which we mention below. The first situation is the classical situation of the equitable estate being defeated by the taker of the legal estate, who takes for consideration and without notice of the equitable estate. Secondly, Mr. Dasgupta pointed out to us section 53 of the Transfer of Property Act where fraudulent transfers intended to defeat creditors are liable to be avoided, but that provision is expressly stated not to impair the rights of a transferee in good faith and for consideration. 77. Mr. Dasgupta gave us some authorities on this aspect, namely, Abdul Shukoor, AIR 1963 SC 1150 , and Basavegowda, AIR 1986 Kant. 77. Mr. Dasgupta gave us some authorities on this aspect, namely, Abdul Shukoor, AIR 1963 SC 1150 , and Basavegowda, AIR 1986 Kant. 225, and we note this here, though we are dealing with a different situation, that in those cases the alienee was to prove that he had no notice, and was within the exception (See para 17, at p. 1157 of the Supreme Court judgment, and head note B of the Karnataka judgment). 78. We were also referred to the Specific Relief Act, where under section 19(b), a transferee for value who has paid his money in good faith and without notice of the original contract cannot be made a defendant for specific performance of that original contract. In England a contract of specific performance gives rise to an equitable estate, but not so in India. Although there is no equitable estate created by agreement for sale of real property in India yet the third party doctrine prevails here. It is a doctrine of justice; it prevails by the force of justice, and has forced its way into the Indian status law; for the difference of Indian law from English law in regard to the specific performance situation, see the case of Bai Dosabai, reported at AIR 1980 SC page 1334 (not cited at the bar). 79. The doctrine of the third party purchaser is also mentioned in section 96 of the Indian Trusts Act, 1882, that section occurs in Chapter IX which is the Chapter on quasi- trusts. It is stated in section 96 that nothing in the Chapter shall impair the rights of transferees in good faith for consideration. We note therefore, that we have to apply here the doctrine of the third party purchaser, and it is on this doctrine, that the purchasers wish to take an absolute interest in 9/4, Middleton Row, even if the Will is never proved. 80. The person who wishes to take advantage of the doctrine of the bona fide purchaser, must show that he comes squarely under the doctrine. The plea of the bona fide purchaser is in the nature of an excuse. The bona fide purchaser does not, and cannot dispute the existence of the rights, title or estate which he is seeking to defeat. But he says, I defeat those admitted rights or estate, because I am a bona fide taker for value without notice. The plea of the bona fide purchaser is in the nature of an excuse. The bona fide purchaser does not, and cannot dispute the existence of the rights, title or estate which he is seeking to defeat. But he says, I defeat those admitted rights or estate, because I am a bona fide taker for value without notice. It is not for others to show that he has got notice, that he must have got notice. It is he himself who has to establish his status of a bona fide taker for value without notice. 81. It is a special situation where even the defendant might be faced with the burden of proving the case on the basis of which he wishes to succeed. If for example, in a situation of a specific performance suit, a subsequent taker seeks to defeat the original contract, he has to prove his bona fide status and his dealings, in ignorance, which have taken place for honest consideration, at least honest from his side. 82. Take the case, for an example, of Shankarlal Narayan Das Mundade, a decision of the Judicial Committee reported at 50 C.W.N. page 603. In that case, no attempt had been made at the trial to prove that the purchase money had been paid in good faith and without notice of the original contract. In such a situation, the Judicial Committee found it unnecessary to examine the evidence in detail, because it was undeniable that the burden of proving good faith and lack of notice lay upon the defendant. 83. Take also the case of Dr. Govinddas, reported at AIR 1972 SC 1520 , in which case again we see, that the onus was on the appellant to prove that the appellant was a bona fide purchaser, because the appellant would benefit from the establishment of such plea. It was also stated that such onus is not light. On facts, there was hasty registration in that case, which is a point of similarity with ours. Mr. Mitter sought to distinguish the situation of specific performance of a contract; he submitted that section 19(b) places the burden specifically on the later taker. However, we do not find any such specific indication in the words of the section. On facts, there was hasty registration in that case, which is a point of similarity with ours. Mr. Mitter sought to distinguish the situation of specific performance of a contract; he submitted that section 19(b) places the burden specifically on the later taker. However, we do not find any such specific indication in the words of the section. It is the general doctrine that the person who alleges, and the person who shall succeed upon the proof of that allegation, has the burden of proving that allegation. Since the bona fide purchaser for value without notice alleges so, and proposes to take benefit from the establishment of such allegations, it is he who has to prove it, and prove it he must, to such satisfaction of the court of equity, as clears the court's conscience completely. 84. We quote here from M and W a certain massage which is useful in this context, (at page 121) "the onus of proof lies on the person setting it; it is a single plea and is not sufficiently made out by proving purchase for value and leaving it to the plaintiff to prove notice if he can." Also at page 130:- "The tendency of the Court of Chancery was constantly to extend and refine the doctrines of constructive and imputed notice. So much property was held under trusts and other equitable dispositions that the frequent appearance of the bona fide purchaser of the legal estate without notice would have been intolerable. Equity's ambition was to eliminate him, so far as possible, by ensuring that it should be almost impossible to escape notice of any equity properly created and recorded. In so far as he could be excluded, equitable rights were as secure as legal rights. Equity's policy was in the main successful, as may be judged from the rarity and abstruseness of the cases in which the defence of purchaser without notice has been made out...." 85. Let us now examine the facts of this case, which notwithstanding, the purchasers state that they have taken without notice. In 1980 in the month of September, Arindam Ghosh forwarded a copy of the Will under cover of his letter to Crystal. It is mentioned in the letter that Jalan and Co. are acting as common solicitor. 86. Let us now examine the facts of this case, which notwithstanding, the purchasers state that they have taken without notice. In 1980 in the month of September, Arindam Ghosh forwarded a copy of the Will under cover of his letter to Crystal. It is mentioned in the letter that Jalan and Co. are acting as common solicitor. 86. Sometime in the month of April 1981, the suit for specific performance was instituted by the Crystal Developers against Arindam Ghosh in his capacity as executor. None of the other heirs of Balai Chand Ghosh as on intestcy was a party to that suit. It is alleged there that Arindam Ghosh is refusing to execute, as per agreement of sale dated March 79 and July 80. We have not found any facts or letters that there is any sign of any refusal by Arindam Ghosh. The suit was instituted at a time when probate had not been granted. 87. The application for probate was made only thereafter by Arindam in the month of May, 1981. Probate was granted on 29th July, 1981, or the 31st and we shall explain the double date later. 88. Mr. H.S. Basu, learned advocate appearing for Arindam was acting for Arindam in obtaining the certified copy of the probate. On 3rd August, 1981 which was a Monday, the suit for specific performance was decreed on compromise. Although Arindam was impleaded as an executor, which is no doubt a representative capacity, leave of court and the notice necessary as under Order 23 Rule 3B were not paid any attention to, but we do not know why the parties have not argued on under Order 23 Rule 3B either. 89. Be that as it may, after the decree was passed on Monday, the Deed of Conveyance, on which the purchasers rely as their main and last document of title from Arindam, was executed on Tuesday. In the Deed, the decree for specific performance is not mentioned; also the date of grant of probate is scored out from 29th July to read as 31st July. 90. When the decree for specific performance was passed on compromise, one Sri T.K. Dutta, learned advocate appeared for Arindam. After 3rd August was over, the common Solicitor Jalan & Co. and their Pankaj Shraff of 1980 came back again and continued on 4th August, 1981, to act again as common solicitor. 91. Mr. 90. When the decree for specific performance was passed on compromise, one Sri T.K. Dutta, learned advocate appeared for Arindam. After 3rd August was over, the common Solicitor Jalan & Co. and their Pankaj Shraff of 1980 came back again and continued on 4th August, 1981, to act again as common solicitor. 91. Mr. Dasgupta emphasized as important facts, that it would be impossible, without the helping hand of Arindam, to obtain the convey deed appropriately drawn up for signature immediately after the grant of probate, and also the timely lodgment of the deed for stamping, so that it becomes a valid and appropriately stamped document. The 230A clearance was also already made clear and ready. 92. We have no manner of doubt that on the law above applicable, and the facts above stated, when the questions of fact are to be decided, in this case, the court must proceed on the basis that whatever Arindam knew or should have known, was also known, or should have been known to the defendant No. 14, Crystal. 93. Now the point about grant of probate. We have examined the petition for probate and we found that it is granted in common form. Probate is granted in two ways, either in solemn form or in common form. The grant in solemn form is when the grant is made in open court after examination of witnesses. The grant is said to be made in common form when papers are put up before the learned Judge taking testatory matters, after examination as to service, witnesses to the Will, and other preliminaries by the department. Signature of the Judge is put privately by him without examination of any witness in the box, the judicial conscience being satisfied upon the affidavits annexed to the petition as to the due execution and validity of the Will. 94. The practice in England is the same as prevails here. See "Probate" in Earl Jewitt's Dictionary of English Law (2nd Ed. 1977 at p. 1436). In Calcutta, as our judicial experience also confirms, the probate in common form is granted upon the papers being put up by the learned Registrar insolvency before the Hon. testamentary Judge in his rooms in court. 95. After signature of the Hon'ble Judge, the learned Registrar, Original Side does the probate act i.e. he enters in the proper register the fact of the grant of probate. 95. After signature of the Hon'ble Judge, the learned Registrar, Original Side does the probate act i.e. he enters in the proper register the fact of the grant of probate. The copy of the certified copy of the probate produced before us shows that the probate was granted and signed by the Hon'ble Mr. Justice Dipak Kumar Sen, (as his Lordship then was) on 29th July, 1981 and the probate act was performed by the learned Registrar, S. Mitra on 31st July, 1981. The certified copy of the probate is dated a month thereafter, i.e. 31st August, 1981. 96. Before issuance of the certified copy of the probate, the concerned parties had no difficulty in drawing up and completing the conveyance dated 4.8.1981. They had no access to the signature of D.K. Sen, J, which we have seen appended to the petition for probate, by exercising our special power by directing production. They had no access to the Register, where the learned Registrar, Original Side had made record of the grant of probate i.e., had performed the probate Act. In view of this and view what is stated above, the position is confirmed, that Arindam and Crystal were not acting at arms' length, but were acting hand in hand. 97. In view of the law discussed above, we opine that, notice in the situation of the bona fide purchaser, imports all these facts, and all those information, whether actual or constructive, which would, or should have, given notice to the alleged third party, of the possibility, however slight but nonetheless real, of the existence of persons and their rights, interest or status, which the third party is seeking to defeat by bringing in the plea of the bona fide purchaser. 98. In this case, the notice is not of the contents of the Will. The notice is of the existence of the heirs as on intestacy of Balai, and as to whether they had been given due information for probate, in view of their possible interest in 9/4 Middleton Row, Calcutta, which might remain untouched and unaffected, if the Will 'proved' by Arindam, and its probate, should ultimately appear to the Court to have been obtained without following the due procedure prescribed by law. 99. That Arindam had obtained probate without following due procedure prescribed by law is today beyond challenge. 99. That Arindam had obtained probate without following due procedure prescribed by law is today beyond challenge. This is because the revocation order has not been challenged by any body. No reasons were mentioned in the order revoking the grant of probate, but the learned Judge who revoked the probate has done so, and nobody can today challenge that the learned Judge has not properly done so. Upon the completion of the performance of the judicial act which is today unchallenged, the probate was impliedly ruled as having been improperly obtained, and it was revoked, as being revocable as per the express provisions of section 263 of the Indian Succession Act, 1925. 100. Arindam has not appeared to say that he had obtained probate upon due service and in all good faith. He has not appeared before us to say that he took all steps to serve all persons who are entitled to be served in law. He has not told us whether he was misled by any legal advice. Arindam has appeared before us and has also disappeared. This is the person that Crystal was acting hand in hand with. Crystal can not be heard to say that whatever defects in the proceeding for grant of probate might have been there, Crystal is not a party to it. Such a plea cannot be accepted by any court in the present state of law and the facts. We opined that it is not only true that Crystal did not have notice, but the correct assessment is that Crystal was sunk in a quagmire of notice. The plea of bona fide purchaser for value without notice therefore does not succeed. 101. Before we come to the next point we clarify that it is not, that a discussion of the law of executors and temporary executors will be found in the judgment under appeal; we have ourselves found it to be a branch of law, which is difficult to understand, and difficult to apply. In this situation, it is absolutely unfair and unjust to attack the finding of the lower court in any manner because of any paucity of discussion. If one finds that the decision reached by the lower court, for whatever reason, happens to be the decision properly to be reached, then that decision must stand. 102. In this situation, it is absolutely unfair and unjust to attack the finding of the lower court in any manner because of any paucity of discussion. If one finds that the decision reached by the lower court, for whatever reason, happens to be the decision properly to be reached, then that decision must stand. 102. Although on the substance of the issues of title, the purchaser fails, they raised the plea that this issue was not there before the lower court at all. It is, they say, not merely a lack of details as to legal discussion, but it is a substantial denial of justice to them if they are now to be defeated in the appeal court on pleas which were not before the trial court at all. 103. Undeniably, the plea of the bona fide purchaser for value without notice was well before the eyes of the contesting parties throughout. The plea is clearly taken in the written statement itself, and repeated in the additional written statement of Crystal filed on 10th December, 1999, on which day the witness of defendant No. 14 also gave evidence from the box. He has mentioned that the probate proceedings were examined on behalf of Crystal. 104. We find from the issues settled in the lower court that issue No.3 was one as to the plaintiffs right, title and interest in the suit property; issue No.9 is about the validity and binding effect upon the plaintiffs of the transfer deeds executed by Arindam; issue Nos. 11 and 12 raised the points of revocation of probate and of Mr. Pal's client (but not Mr. Mitter's client), being a bona fide purchaser. 105. When the issues are read as a whole, no manner of doubt is left in our mind that the purchasers including the defendant No. 14 were under full notice and knowledge that they were trying to substantiate the existence of title to 9/ 4 Middleton Row, Calcutta in themselves, which would defeat Balai Chand Ghose's heirs as on intestacy, the lack and revocation of probate notwithstanding and the absolute title of the premises being in Balai Ch. Ghose, prior to his death, also notwithstanding. 106. The above discussion of the exact position of, and of the doctrines relating to the 3rd party purchaser, show that the purchaser is protected against injustice and bona fide ignorance. Ghose, prior to his death, also notwithstanding. 106. The above discussion of the exact position of, and of the doctrines relating to the 3rd party purchaser, show that the purchaser is protected against injustice and bona fide ignorance. The above discussion is the only just way of coming to the appropriate decision in this case, as supported by law and equity. We accept Mr. Dasgupta's submission that the real reason for the exclusion of new pleas in the appeal court, is that it is in reality, a rule against injustice, which prevents a party from being taken by undue surprise, or being met with a case which it had no sufficient opportunity to meet in the court below. The case of Nagubai Ammal, reported at AIR 1956 SC 593 (esp para 12) should be read in this context, where the principle of justice and fair play is, with respect, correctly and helpfully elucidated. The purchaser then said, and stated with emphasis, that whether they succeed on the establishment of their title or not, they should succeed on other pleas, of limitation and on the principle of section 34 of the Specific Relief Act, 1963. The plaintiff have not asked for such important reliefs, as even the cancellation of the offending conveyance dated 4.8.81. We come to the point of limitation first. 107. In arguing the point of limitation, Mr. Mitter first drew our attention to the amended plaint and submitted there from that the plaint does not contain a prayer for possession at all. His submission was that the prayer for possession was deliberately left out so that the plaintiffs are not embarrassed by any point of limitation in regard to that prayer. 108. We have no hesitation in rejecting this submission. No plaintiff that foolish, that to avoid the task of answering a point of limitation, he will not insert a prayer at all which is essential to the success of his suit. If the branch of Nirmala gets only a paper partition decree and no possession, then of what use to them is that, even if they have avoided answering the point of limitation? 109. In fact and in point of law, in a suit as instantly circumstanced, a suit for partition is necessarily for partition of ownership and possession. If the branch of Nirmala gets only a paper partition decree and no possession, then of what use to them is that, even if they have avoided answering the point of limitation? 109. In fact and in point of law, in a suit as instantly circumstanced, a suit for partition is necessarily for partition of ownership and possession. The allotment in severalty, which occurs after the acceptance of the report of the Commissioner of partition, brings about a separation both as to joint ownership and as to joint possession. Inbuilt within a prayer for partition is the prayer for separation of the joint property, by means just and proper, and by metes and bounds, so that each allottee (or his group) gets, after the final decree and allotment, a particular portion of the joint property as his own, to the exclusion of the other erstwhile joint owners, both as regards legal ownership and as regards factual possession, de jure and de facto. 110. We need not enter into that arena where this type of partition fails and there is a sale as per the Partition Act of 1897; nor need we trouble ourselves about owelty money. This much is clear, and this much is certain, that a prayer for partition ordinarily includes a prayer for possession and such a prayer was there in the suit from the beginning, inbuilt within the prayer of partition, right from September 1981, when the suit came on to the files of the Alipore Court. So certain and so obvious is this proposition that neither Mr. Mitter nor Mr. Pal nor Mr. Dasgupta chose to cite any authorities for any contrary proposition or any authorities in support of this proposition, that a prayer for partition includes a prayer for possession. 111. The conveyance was executed on 4.8.1981 and there is a document on record of the same date which shows the giving of possession by Arindam to Crystal. The point of his pendency does not fall for consideration before us, because the suit was instituted more than a month after the property was purportedly sold. 112. Mr. Mitter submitted that the plaintiff knew, or should have known of the possession of Crystal, and thereafter of the subsequent takers. The purchasers had done nothing secretly. They openly took proceedings in the court by filing writs for the purpose of getting quashed certain land acquisition proceedings. 112. Mr. Mitter submitted that the plaintiff knew, or should have known of the possession of Crystal, and thereafter of the subsequent takers. The purchasers had done nothing secretly. They openly took proceedings in the court by filing writs for the purpose of getting quashed certain land acquisition proceedings. They openly dealt with the residents of the property, residing there in capacity as tenants, so as to got the property vacated. They got their conveyance registered in the usual manner. The subsequent takers duly applied for Corporation sanction and obtained it. They were eager to use their land and therefore they had started piling work even before obtaining sanction. Structures were demolished. New houses and flats came up, 13 tenants were put into permissive occupation. In the face of these, the plaintiffs cannot pretend ignorance of the purchasers' possession. Since the purchasers came on record only by an order dated 13.6.1994, the suit was barred in regard to any claim for divestment from possession, which had been obtained on 4.8.1981, more than 12 years before the date of addition of parties. In this regard Mr. Mitter drew our attention both to section 21 of the Limitation Act and Order 1 Rule 10 sub-rule (5) of the Code of Civil Procedure. 113. Section 21 of the Limitation Act runs as follows, but since only subsection (1) is relevant for our purpose, section 21(1) of the Limitation Act of 1963 is set out herein-below: "21. Effect of substituting or adding new plaintiff or defendant.-(1) Where after the institution of a suit, a new plaintiff or defendant is substituted or added, the suit shall as regards him, be deemed to have been instituted when he was so made a party: Provided that where the court is satisfied that the omission to include a new plaintiff or defendant was due to a mistake made in good faith it may direct that the suit as regards such plaintiff, or defendant, shall be deemed to have been instituted on any earlier date." 114. Under Order 1 Rule 10, the proceedings as regards the added defendant are mentioned in sub-rule (5). However, since a case was relied upon relating to addition of plaintiffs, sub-rule (1) is also relevant. Under Order 1 Rule 10, the proceedings as regards the added defendant are mentioned in sub-rule (5). However, since a case was relied upon relating to addition of plaintiffs, sub-rule (1) is also relevant. Order 1 Rule 10 sub-rule (1) and Order 1 Rule 10 and sub-rule (5) are set out below: "Order 1 Rule 10 sub-rule (1) : Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just." "Order 1 Rule 10 sub-rule (5) : Subject to the provisions of the Indian Limitation Act, 1877 (15 of 1877), section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons." 115. The above provisions make it clear that the ordinary rule of the relating back of permitted amendments to the date of institution of the suit is not exactly applicable to such amendments which have the effect of adding parties to the suit. 116. It is unfortunate that the parliamentary draftsman, in the amendments of the Code of Civil Procedure in 1976 missed two Limitation Acts in sub-rule (5) of Order 1 Rule 10. But the mistake is not material in view of the provisions of the General Clauses Act. What is material for our purpose is that the purchasers did not come on record until 13.6.1994 when the amending order including addition of parties was passed by Order No. 179. 117. Both Mr. Mitter and Mr. Pal pointed out that this order makes no mention of relating back the amendment as to any of the added defendants to any date prior to 13.6.1994. 117. Both Mr. Mitter and Mr. Pal pointed out that this order makes no mention of relating back the amendment as to any of the added defendants to any date prior to 13.6.1994. When another learned Judge than the one was passing the order of amendment decreed the suit in 1999, he, it was submitted, made an error in not considering the provision of section 21 of the Limitation Act and in cursorily disposing of the plea of limitation by a casual remark that amendments relate back to the date of the suit. 118. Before we give our decision on this important point, we have to clarify certain factual aspects. These aspects have to be clarified in relation to Article 65 of the Limitation Act, 1963 which prescribes a limitation of 12 years from the date when the possession of the defendant becomes adverse to the plaintiff. The said Article is set out below, without, however, the explanation given in column I which is not so material for our purpose. "65. For possession of Twelve When the possession of the defendant immovable property years becomes adverse to the plaintiff." or any interest therein based on title. 119. So far as Arindam and his mother, namely, defendants 2 and 1 are concerned, there is no question of any limitation. The prayer for possession against them was there from the very beginning in the shape of the claims for partition. Mr. Mitter submitted that the purchasers from Arindam started possessing adversely to the plaintiffs from, at the latest, 4th August, 1981. The prayer for possession made against Arindam cannot be made to relate to the purchasers by virtue of the order passed on 13.6.1994. The adverse possession of the added defendants had crossed the crucial time period of twelve years by then. Therefore, the suit should have been dismissed on the ground of limitation, and the possession of the purchasers should have been declared by the court as inviolable at the instance of the plaintiffs or any of the other parties to the suit. In deciding upon this issue of law the facts must be noticed in detail specially as to the dates. 120. In deciding upon this issue of law the facts must be noticed in detail specially as to the dates. 120. That the purchasers got possession on 4.8.1981 on the basis of a conveyance and a delivery of possession document, were known at that time to Arindam and Crystal and their legal agents, Absolutely no attempt was made by either to make this fact known to the plaintiffs or any of the other heirs as on intestacy of Balai. When Arindam got himself substituted as an executor in 1982 and deposited the copy Will of Balai, he mentioned neither the probate nor the conveyance nor the fact of delivery of possession to crystal. His written statement is also silent on these matters. 121. In none of the legal proceedings including the writ in regard to the land acquisition, the plaintiffs or the clients of Mr. Banerjee were parties. There is no document to show that they had notice aliunde of these proceedings at the material time, Probate they came to know of in or about 1986; they applied twice for getting revocation and were successful the second time. There is no evidence that any construction activity went on over the premises in suit at any time before 1991. It is true that so far as the collection of rent and other profits, if any, from the property are concerned, the other heirs of Balai than Arindam and Mamatahad never taken any steps. But of the purchasers, they could not be shown to have an inkling before 1991. 122. Since probate was got cancelled in 1987, the adversaries of Arindam thought, after they had later on come to know of the purchaser, that the sale by Arindam must perish with the revocation of the probate. This was a plea strongly put forward in the lower court. We have already pointed out that although this was the impression and the submission of the plaintiffs, the parties were under full notice that they were under a duty to establish their best title before the court on pain of suffering a decree for dispossession. 123. Presumably after obtaining revocation of probate, the plaintiffs thought that they have got back the property from Arindam. But steps for actually getting it back, we find were not taken until much later. Four successive years must be mentioned here for the important things which occurred in those years. 123. Presumably after obtaining revocation of probate, the plaintiffs thought that they have got back the property from Arindam. But steps for actually getting it back, we find were not taken until much later. Four successive years must be mentioned here for the important things which occurred in those years. In 1991 piling works on the premises started at the instance of the subsequent takers. In 1992, the plaintiffs got a receiver appointed, presumably seeing construction work going on, on what they then thought to be their joint land. In 1993, the subsequent takers got Corporation sanction. In 1994 the appellants were added as the party defendants. 124. The plaintiffs have stated in their plaint and petition that they came to know of the sale from "the whisperings of the locality"; then they say that thereafter Corporation records were searched and the change and mutation were revealed; that with the help of the receiver they came to know of the conveyance and then they applied for addition and got the order for addition. 125. In the face of these facts we first have to determine when, the possession of the purchasers, became adverse to the plaintiffs, and even if it had become adverse for more than twelve years, whether the plea can be taken in the absence of specific pleadings, a point correctly emphasized and urged by Mr. Dasgupta. 126. Mr. Mitter gave us several cases of adverse possession. From the cases, two types of adverse possession can be made out, one by an outsider and another by a co-sharer. As the authorities suggest, it is much more difficult for a co-sharer to make out a case of adverse possession against the other joint owners, even if the co-sharer is in exclusive possession of some joint property. To make time to start running for adverse possession in favour of a co-sharer, he must show his intention to occupy and possess, deliberately on his own, to the exclusion of the other co-sharers and this exclusive and personal occupation on his own must be made known by the adversely occupying co-sharer to the others. The facts to be proved by a third party adverse possession are definitely easier to establish. 127. The general rule is that adverse possession starts when the person who is not the legal owner starts occupying the property nec vi, nec clam, nee precario. We explain these below. The facts to be proved by a third party adverse possession are definitely easier to establish. 127. The general rule is that adverse possession starts when the person who is not the legal owner starts occupying the property nec vi, nec clam, nee precario. We explain these below. i) nec vi :- This means neither by force. If the rightful owner of the property is constantly visiting the property, trying to get back possession, but the adverse possessor is throwing him out and is maintaining his wrongful possession by force, then his adverse possession does not begin. If Bhabesh had gave to Crystal and Crystal had thrown Bhabesh out by force, then this principle would operate, but the facts are not such. ii) nec clam :- This means neither secretly. If the possession of the wrongful occupier is a guarded secret, and the legal owner cannot be reasonably expected to know of the fact of the loss of his possession to the wrongful occupier, then also adverse possession does not begin. This is the phrase which is all important to us. We shall revert to this after discussing the case law. iii) nec precario :- This means neither by licence or permission. If I keep a caretaker in my house and his duty is to take care for 24 hours, without my ever being able to visit the house at any time, even then the caretaker does not prescribe. This is because he does not occupy adversely to me but under my permission. 128. The cases given by Mr. Mitter are Bhavrao's case reported at I.L.R. 23 Bombay 137, T.R.R. Palania, reported at AIR 1942 Madras 622, Imbram Rao's case reported at AIR 1972 Madras 467. The last of the three cases is important and it contains an useful quotation from Lord Macmillan's judgment given in Devendra Lal Khan's case reported at L.I.R. 61 Cal 262 (at p. 266) ; also reported at AIR 1934 Privy Council page 23. 129. Mr. Mitter submitted on the basis of this case that, adverse possession not having to be secret, does not mean that the adverse possessor is under any duty to bring home the fact of his possession to the knowledge of the owner; it is the owner who has to be vigilant. 129. Mr. Mitter submitted on the basis of this case that, adverse possession not having to be secret, does not mean that the adverse possessor is under any duty to bring home the fact of his possession to the knowledge of the owner; it is the owner who has to be vigilant. He also submitted on the basis of these authorities, that where the adverse possession of a stranger is in issue, mere even possession is quite enough. 130. Mr. Dasgupta answering to this part of Mr. Mitter's case gave us no fewer than four cases on the proposition that adverse possession has to be specifically pleaded. According to him, the plea of adverse possession is dependent upon facts, and notice of this plea must be given to the other side irrespective of whether the person claiming adverse possession is in the position of a plaintiff or a defendant. He gave the case of Nirmal Chandra Das, a Division Bench judgment of our High Court reported at 40 C.W.N. 777, the case of Vidya Devi reported at 1995(4) S.C.C. 496 , the case of Arundhati Mishra reported at 1994(2) S.C.C. 29 and the case of S.M. Karim reported at A.I.R. 1964 S.C. 1254. 131. The following passage appearing near the end of Karim's case in the judgment of Hidayatullah, J. (As His Lordship then was) might be usefully considered in this context. "There is no evidence here when possession became adverse, if it at all did, and a mere suggestion in the relief clause that there was an uninterrupted possession for 'several 12 years' or that the plaintiff had acquired 'an absolute title' was not enough to raise such a plea. Long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea. The cited cases need hardly be considered because each case must be determined upon the allegations in the plaint in that case. It is sufficient to point out that in Bishun Dayal vs. Keshab Prosad, AIR 1910 PC 202, the Judicial Committee did not accept an alternative case based on possession after purchase without a proper plea." 132. In applying the Article 65 of the Limitation Act one has to enter a finding on a fact, as to when possession became adverse. It is at best, a mixed question of law and fact. In applying the Article 65 of the Limitation Act one has to enter a finding on a fact, as to when possession became adverse. It is at best, a mixed question of law and fact. For possession to become adverse, there must be a claim or a statement to that effect. There must also be substantial pleadings. The purchasers did not here claim as adverse possessors. Not even in the alternative. The evidence given on their part is not directed towards establishing that, as soon as they got their title and possession on 4.8.1981, they were evenly possessing the premises, and the plaintiffs should, therefore, be defeated now, in any event, by a plea of adverse possession coupled with limitation. When the plaintiffs instituted the suit, they didn't even know that the co-sharer had handed over to third party. Their initial omission to sue Crystal, clause 14, was surely bona fide. 133. There is no such alternative case, alternative to the case of title based upon conveyance, made out either in the written statement or in the additional written statement of the purchasers. Limitation was mentioned and argued but adverse possession as such was not sought to be established. The establishment of such a plea necessarily postulates, some sort of defect of title apprehended and accepted by the purchasers, even in the alternative. Now, this sort of possible defect in their title is something which the purchasers have not only accepted, but have always reacted sharply, whenever such suggestion came forward. We have full title, we have freed the property. The property is ours. No partition can be made of our property-that is their stand. Their stand has never been that we have taken from a temporary executor and we were not, therefore, sure of our title; but here we are possessing on our own and we would prescribe all else, be he the heir of the deceased Balai Chand Ghosh or anybody else. 134. We are of the opinion that even if the suit is taken to be instituted as regards the purchasers on 13.6.94, it could not be dismissed on the point of limitation because the starting point of the third column of Article 65 has not been an issue to which the court's mind was directed or upon which a decision was invited by the purchasers. The point of limitation arises also in regard to the declaratory relief sought in respect of the conveyance dated 4.8.1981. The relevant Article in this regard is Article 58 of the Limitation Act, 1963 which is as follows: "58. To obtain any other declaration. Three years When the right to sue first accrues." 135. If the Deed of 4.8.81 were known to the plaintiffs from the date of its very execution then the period of limitation for declaration would run from that date itself. If again, the plaintiffs should have known, upon their conduct and actions of due diligence, of such Deed within, say, a few months thereof, then again, the period of limitation would run from the expiry of that time, within which the plaintiffs should have come to know of the Deed of 4.8.81 on use of all due care and diligence, which could reasonably be required of them in the circumstances of the case. 136. Mr. Dasgupta submitted that although registration is generally notice to the world at large, yet, it is not notice to a party who is not put upon any inquiry and duty to search at the Registration Office. Of the Deed dated 4.8.81, the plaintiffs were unaware at the time of its execution and even for a long time thereafter. They had no reason or occasion even to suspect of the existence of such a Conveyance. We accept this submission of Mr. Dasgupta. 137. The plaintiffs knew of the probate in or about 1986/87 but of the Deed of Conveyance they had no inkling. They were not put upon any enquiry as to any third party to whom Arindam might have sold the premises. Arindam received money in several lots from the purchasers and he had kept those receipts his won secret. Such fact of payment was not made known by the purchasers to the other heirs of Balai (as an intestacy) either. In these circumstances, it is our opinion that the right to sue did not accrue to the plaintiffs immediately on execution of the Deed of 4.8.81 but it accrued to them only when they knew the Deed i.e. some time in or about 1992. 138. In these circumstances, it is our opinion that the right to sue did not accrue to the plaintiffs immediately on execution of the Deed of 4.8.81 but it accrued to them only when they knew the Deed i.e. some time in or about 1992. 138. We do not see how the plaintiffs can be thought to be careless or lacking in diligence, in this regard, when their suit itself was pending from September, 1981, and nobody is expected to make constant searches for transfers even during the pendency of the suit. The crucial period of ignorance i.e. between August, 1981 which was the date of the Deed, and September, 1981 which was the date of the suit, simply prolonged and got extended for nearly a decade until there was piling work, appointment of receiver and discovery of the past unilateral deals and Deeds made and brought about by Arindam. Thus, the suit for declaration in respect of the Deed of 4.8.81 would not be barred even if it is taken as instituted on 13.6.94 because knowledge of the Deed came to the plaintiffs within three years prior to that date, they not being guilty of any conduct which can lay the blame for their ignorance for so long at their own door. We now have to see whether, even if Articles 65 and 58 were to apply, the suit should be dated back as against the added defendants. 139. Although this point might be left unanswered, since we have entered our finding in favour of the plaintiffs already on the other point, i.e. even if the Articles applied, still we think it better to give our decision if only for the sake of completeness of our decision, not forgetting the long and arduous battle for twenty days before us; the parties deserve a full decision. 140. Mr. Mitter mainly made his submissions on the wording of the order of amendment and section 21 of the Limitation Act and submitted that the order of doing back must be the same order as allows the amendment. He also submitted that the case of bona fide mistake must be pleaded and proved upon the petition for addition of parties. Mr. Mitter mainly made his submissions on the wording of the order of amendment and section 21 of the Limitation Act and submitted that the order of doing back must be the same order as allows the amendment. He also submitted that the case of bona fide mistake must be pleaded and proved upon the petition for addition of parties. One cannot simply sleep on for ever, and only when the matter comes for a final hearing before the appeal court make a tearful plea, asking for relating back of the amendment and addition, as otherwise the suit as amended would be barred by limitation. These, in our opinion, are quite forceful arguments. 141. In answer to these, Mr. Dasgupta gave us first the case of Karuppaswamy, reported at 1993 (4) S.C.C. 41 . He drew our attention especially to paragraph 4 of the judgment. He showed there from that the Court ruled the proviso to section 21(1) as a beneficient one. He also emphasized that the change made in the Limitation Act by addition of the proviso to sub-section (1) was found by the Supreme Court to have "made all the differences". The Supreme Court said that only the court's satisfaction upon proof breathes life into the suit, which might otherwise be dead. Such satisfaction should be on proof that inclusion of the right defendant by substitution or addition was just and proper, the mistake to sue initially having occurred in good faith. 142. Thus, the important point to consider is the point of good faith, the point of lack of notice, the point of not suing the right defendant simply because the facts were not known, and not on the motive say, of embarrassing the defendant later on by adding him as a party in a suit which has already gone on for a long time, allowing for left out party to change his own position irretrievably. 143. The next case relied upon by Mr. Dasgupta was the case of Deepchand, a Division Bench judgment of our High Court reported at 1997 (1) CHN page 54. That was a case of addition of a plaintiff, and such addition was vitally necessary to the suit for specific performance. 143. The next case relied upon by Mr. Dasgupta was the case of Deepchand, a Division Bench judgment of our High Court reported at 1997 (1) CHN page 54. That was a case of addition of a plaintiff, and such addition was vitally necessary to the suit for specific performance. The Court ruled that orders of addition of party are ordinarily to be construed as a dating back the suit, as otherwise the order would be a meaningless order serving no purpose, since the suit is bound to be dismissed notwithstanding that the addition of the right party has been made. 144. The Division Bench speaking through Gitesh Ranjan Bhattacharjee, J. as he then was, also considered Order 41 Rule 33, and the power of the Court of Appeal. It was ruled that where the Appellate Court is satisfied that the order of dating back should have been passed, it had ample jurisdiction to pass that order itself. 145. We are in respectful agreement with this decision, that if found just and proper, then even the appellate Court can date back the effect of the addition of parties, even if there should be serious lacunae in that regard in the order passed by the First Court. 146. We note that an amendment of pleadings could be made at any stage of the proceedings, and such stages include the appellate proceedings. Needless to mention, the justice of the amendment at the late stage has to be made out by the parties seeking amendment if the Appellate Court's powers are to be exercised in that regard. So also in the case of addition of parties; the justice of the case must be made out, there must be no bad faith in the applicant, no negligence either. But once that is shown, the Appeal Court has all the jurisdiction to date back the addition of parties to any time anterior to the order of amendment even though the First Court should be quite silent on that issue. If the Appeal Court can introduce a cause of action after limitation period, it can so introduce a party too. 147. In applying this law to the facts of this case we take note of the fact that section 21 of the Limitation Act was referred to in the Lower Court neither by the plaintiffs nor by the defendants. If the Appeal Court can introduce a cause of action after limitation period, it can so introduce a party too. 147. In applying this law to the facts of this case we take note of the fact that section 21 of the Limitation Act was referred to in the Lower Court neither by the plaintiffs nor by the defendants. Just as the plea of limitation by section 21 was taken by the appellants for the first time before us, so also the proviso to the same section was shown as a plea in answer, which the plaintiffs respondents relied upon in their own support. 148. The mind of the lower court was not adverted to the necessity of specifically of having to date back the addition of party, in view of the above provision of law. We have heard those arguments for the first time. Naturally we have to give our decision on the point. We cannot go back to 13.6.94 when the amendment order was passed nor need we do so. We have no doubt in our minds about the bona fides of the plaintiffs in not adding the purchasers, at that time only Crystal, from the very beginning. We find that in his depositions Bhabesh mentioned that he came to know of the agreement of sale between Balai acting through Arindam, and the Doshis, dated in 1979 and 1980, only in 1986. The Doshi's are not the purchasers but the purchasers are their nominees who got the deed registered. The branches of the first wife and the second wife were completely in the dark about these things. We do not find any deliberateness in the second wife's branch in not suing the purchasers until it is quite late. Mr. Mitter suggested that they kept back the addition of parties only to bounce upon the purchasers when they have freed the land from all encumbrances. It is a nice sending plea, but it needs hard facts to establish it. Why should purchasers of the property, bought at Rs.10 lacs in the early 80's and which is perhaps worth Rs.20 crore, not address any letters to those possible persons who might challenge the title later? No doubt, they had no duty in law (equity is different) to write those letters. Why should purchasers of the property, bought at Rs.10 lacs in the early 80's and which is perhaps worth Rs.20 crore, not address any letters to those possible persons who might challenge the title later? No doubt, they had no duty in law (equity is different) to write those letters. But if such letters are not written, no special effort is made to publish the interest of the purchasers to the other heirs of Balai, surely the equities of those heirs of Balai cannot be challenged, because the purchasers create their own ignorance, if any, by their deliberate (and quite surprising) and total lack of contemporaneous communication. We are aware that the suit cannot be dated back to 1981 as against Mr. Pal's clients who bought only in 1991. 149. Thus the suit should be taken as filed against the subsequent takers on the dates of their alleged acquisition of their interest, and on the date of institution of the suit as against Crystal, because Crystal's alleged interests had ripened even earlier that. The points of limitation as to possession and declaration therefore fail. 150. The last point was of section 34 of the Specific Relief Act, 1963, the material portion of that section is set out below: "Section 34. Discretion of court as to declaration of status or right.-Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief: Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so." 151. Mr. Mitra cited a lot of authorities to establish the legal proposition that section 34 is an absolute bar and the Court is not free to disregard it. He relied on Anilabala's case, AIR 1942 Calcutta 245; possession has to be asked for, if necessary, was ruled to be the law; it was said that, under the garb of the prayer for injunction, possession could not be said to be prayed for in reality. He relied on Anilabala's case, AIR 1942 Calcutta 245; possession has to be asked for, if necessary, was ruled to be the law; it was said that, under the garb of the prayer for injunction, possession could not be said to be prayed for in reality. He also gave us the case of Jugraj Singh reported at 1971 Supreme Court 761 (paragraph 11) and AIR 1963 Patna, page 1 (Md. Zakiuddin) where it was said that as against an added party, possession has to be specifically asked for, and a mere prayer for declaration become useless. Mr. Mitra gave us certain other cases also. 152. It is not the absence of the prayer for possession which concerns us here because as we have held, that prayer is there. Mr. Mitra said that the conveyance of 4.8.81 has not been asked to be delivered up and cancelled. The decree for specific performance passed on 3.8.81 has not been asked to be rescinded. If these remain the plaintiffs cannot get a mere declaration of their title, and of the veridness of the deed dt.4.8.81. If that title and the final decree are published or registered, there will be an utter confusion in the records, because the conveyance of 4.8.81 will point to the purchaser as the owners and the decree of partition will point to the heirs of Balai as on intestacy as owners. 153. Mr. Dasgupta submitted that this is not a type of case where the rescission of the deed could properly be asked for by the plaintiffs. He said that the plaintiffs were not parties to the deed. Not being parties, a declaratory relief was all that was appropriate for them to ask. He relied in this regard on the judgment of Wadsdorth, J. given in the case of Vellayya Konar, reported at AIR 1939 Madras 894; that was a suit by a creditor for avoiding a debtor's alienation. It was ruled that the correct prayer to ask for was a declaration for establishment of title and not a cancellation of the decree or deed to which the creditor was not a party. 154. Mr. It was ruled that the correct prayer to ask for was a declaration for establishment of title and not a cancellation of the decree or deed to which the creditor was not a party. 154. Mr. Dasgupta then gave us a Division Bench judgment of Patna High Court in the case of Bulakram, reported at AIR 1940 Patna page 133, where it was ruled that even if appropriate and satisfactory reliefs have not been prayed for the court could in its discretion order the offending document to be delivered up and cancelled. 155. In our opinion a prayer for delivery up and cancellation of the conveyance of 4.8.81 in toto could never succeed. That deed has already been successful and effective in best purchasers owing upon the two elevenths (2/11) of the premises. They have got Arindam and Mamata's share. Neither the branch of the second wife nor the branch of the first wife had any right to get the purchasers' deed cancelled in so far as those have the effect of purchasing Arindam and Mamata's share on intestacy. The decree for specific performance passed on consent by our court on 3.8.81, without paying regard to Order 23 Rule 3B and which was not mentioned in the deed of conveyance is similarly exempt from total rescission. Mr. Dasgupta said that after revocation of probate the suit and the decree for specific performance became even more defective because a decree cannot be passed against an executor as such without proof of the Will. He referred to a single line at page 31 3d of the case Naraindas Lilaram, reported at 1995 (Supplement) Supreme Court Cases 312. But in our opinion, defective or not, the decree being binding as against Arindam himself nonetheless, it is thoroughly consistent with the conveyance of 4.8.81 and those two together have the same effect of passing whatever title Arindam and Mamata personally had. Mamata's title passes, because she does not challenge Arindam's acts. This title, in the absence of the Will, is to the 2/11 undivided share, of the third wife and her only issue, in the premises. Section 34 of the Specific Reliefs Act does not apply, therefore, in the present situation. The correct decree is the decree for declaration. Mamata's title passes, because she does not challenge Arindam's acts. This title, in the absence of the Will, is to the 2/11 undivided share, of the third wife and her only issue, in the premises. Section 34 of the Specific Reliefs Act does not apply, therefore, in the present situation. The correct decree is the decree for declaration. The said conveyance notwithstanding, when a purchaser of the future makes a search in the registry, assuming that the final decree for partition is registered by then, he will find the title of the second wife obliterated by the declaration of benami, and the title of Balai upheld, then the registered deed of 4.8.81, and lastly the decree for declaration ripening into partition showing the effect of the said conveyance as being of part validity only, to the extent of 2/11ths of the undivided share. This would be a perfect position in the registry not calling for any interference from us. 156. Liberty to apply in the trial court for appointment of Commissioner of partition. All parties shall deliver up vacant and peaceful possession to him without any let or hindrance. The application for substitution of respondent No.1 (a) Ashalata Ghosh is allowed and the heirs as on intestacy be noted on record and treated as such. They are already on record otherwise. 157. The decree under appeal is, therefore, in need of absolutely no interference. Both the appeals are dismissed with costs. All interim orders in aid of the appeals stand vacated with immediate effect. Stay of the operation of the decree is prayed for but such prayer is unhesitatingly turned down. If urgent certified xerox copy of this judgment is applied for, the same should be given to the parties on the usual undertakings. Ranjan Kumar Mazumdar, J.: I agree. Both the appeals are dismissed with costs.