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2005 DIGILAW 336 (CAL)

GANESH CHANDRA PRODHAN v. MAYA SINHA

2005-05-16

BHASKAR BHATTACHARYA, RAJENDRA NATH SINHA

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BHASKAR BHATTACHARYA, J. ( 1 ) THIS first miscellaneous appeal is at the instance of some of the respondents in proceedings for revocation of probate and is directed against Order No. 10 dated August 6, 2004 passed by the additional District Judge, 1st Court, Alipore in Revocation Case No. 25 of 2004 thereby allowing an application for temporary injunction filed by the respondent nos. 1 to 3 in part and restraining the present appellants from inducting anybody in the property covered by the Will till the disposal of revocation proceedings. ( 2 ) THERE is no dispute that one Gour Chandra Prodhan, the father of the parties was the original owner of the property. It appears from record that on the death of the said Gour Chandra Prodhan, the present appellant Nos. 1 and 2 applied for grant of probate of the alleged last Will and testament executed by the said Gour Chandra Prodhan and the Probate Court granted probate with the consent of all the heirs of the deceased testator including that of the respondent Nos. 1 to 3 who are the married daughters of the testator. ( 3 ) SUCH probate was granted on 25th July, 1983. By the said Will the property. involved herein was given to the sons of the deceased excluding the married daughters. ( 4 ) IT further appears from record that after getting probate of the said Will, the present appellants Nos. 1 and 2 mutated their names in the register of the kolkata Municipal Corporation and subsequently in the year 2002 demolished the existing building and thereafter submitted a plan for construction of multi-storeyed buildings pn the disputed property with the help of a promoter, the appellant No. 3 herein. ( 5 ) IN the year 2004, the three married daughters of the deceased testator filed an application for revocation of the probate on the ground that the probate was obtained by practising fraud, inasmuch as, they were given to understand that their signatures were required for mutation in the Kolkata Municipal corporation but the appellant Nos. 1 and 2 by taking aid of signatures of the respondent Nos. 1 to 3 on blank papers obtained probate of the Will as if they gave consent to the grant of the same. ( 6 ) THE said application for revocation gave rise to Revocation Case No. 25 of 2004. 1 and 2 by taking aid of signatures of the respondent Nos. 1 to 3 on blank papers obtained probate of the Will as if they gave consent to the grant of the same. ( 6 ) THE said application for revocation gave rise to Revocation Case No. 25 of 2004. ( 7 ) IN connection with the said application for revocation, the respondent nos. 1 to 3 filed an application for temporary injunction restraining the present appellants from making any construction or inducting any third party in the property. ( 8 ) INITIALLY, an ad interim order of injunction was granted against which the present appellants in the past preferred an appeal before a Division Bench of this Court and the said Bench set aside the ad interim order of injunction and permitted the appellants herein to construct the building without prejudice to the rights and contentions of the parties. Their Lordships, however, restrained the present appellants from inducting any third party till the disposal of injunction then pending before the learned Trial Judge. ( 9 ) SUBSEQUENTLY, the learned Trial Judge by the order impugned herein has disposed of the application for temporary injunction by restraining the present appellant from inducting any third party in the constructed property till the disposal of the revocation proceedings. ( 10 ) BEING dissatisfied, the appellants have come up with the present appeal. ( 11 ) AFTER hearing Mr. Roy Chowdhury appearing on behalf of the appellant and Mr. Bhattacharya appearing on behalf of respondent Nos. 1 to 3 and after going through the materials on record we find that the learned Trial Judge while granting the injunction was of the view that whenever there is allegation of misrepresentation and fraud with regard to a Will in the matter of obtaining signature in the "no objection" petition, such application for revocation should be considered to have a prima facie case and thus, he granted an order of injunction. ( 12 ) IN our view, the approach of the learned Trial Judge was totally misconceived. We cannot lose sight of the fact that the probate was granted in the year 1983, 22 years ago, on the basis of apparent consent given by the respondent Nos. 1 to 3. ( 12 ) IN our view, the approach of the learned Trial Judge was totally misconceived. We cannot lose sight of the fact that the probate was granted in the year 1983, 22 years ago, on the basis of apparent consent given by the respondent Nos. 1 to 3. In the application for revocation they have alleged that they initially were hesitant to give signature on the blank papers but on the assurance of their mother gave such signature on the understanding that for mutation purpose those signatures were necessary. ( 13 ) IT further appears from the record that in course of last 22 years, the respondent Nos. 1 to 3 have not paid any amount towards payment of tax in corporation nor have they taken information whether their names had really been mutated. It further appears from their averments made in the application that they have admitted that in the year 2002 they came to know that the existing house had been demolished by the brothers but in spite of such knowledge did not take any step for preservation of their alleged right. The moment new construction started they came forward with the application for revocation. ( 14 ) IN our opinion, in the fact of the aforesaid case it is very difficult to come to conclusion that the respondent Nos. 1 to 3 have a strong prima facie case to have an order of injunction and that the balance of convenience and inconvenience also lies in their favour. ( 15 ) IF ultimately the application for revocation succeeds, the respondent nos. 1 to 3 would get their share in the property and can enforce their right by filing a suit for partition. Thus, it cannot be said that for not granting injunction their right will be frustrated. When the respondent Nos. 1 to 3 did not care to protect their alleged rights for the last 25 years, their prayer should be refused on the ground of gross delay and inaction, even if they have got any prima facie case. Moreover, in the fact of the present case, as indicated earlier, we are unable to hold that the respondents Nos. 1 to 3 have made out a strong prima facie case. Moreover, in the fact of the present case, as indicated earlier, we are unable to hold that the respondents Nos. 1 to 3 have made out a strong prima facie case. ( 16 ) ON the other hand, if today an order of injunction is granted but ultimately the application for revocation fails after lapse of several years, the present appellants will suffer huge financial loss and injury for keeping such vast property vacant where they have invested more than rupees one crore. It is needless to mention that transferee, if any, during the pendency of the revocation proceedings will be bound by the decision of the revocation proceedings and thus, the respondent Nos. 1 to 3 will not be prejudiced if injunction is not granted. ( 17 ) WE, thus, set aside the order impugned and dismiss the application for injunction. We, however, make it clear that any person acquiring interest in the property during pendency of the revocation proceedings will be bound by the ultimate decision in the revocation proceedings. ( 18 ) THE observations made herein regarding the prima facie case of the appellants should be treated to be tentative for the purpose of disposal of this appeal against the order of temporary injunction and will not be binding upon the Court while disposing of the main revocation proceedings. ( 19 ) THE appeal is, thus, allowed. Order impugned is set aside. In the facts and circumstances, there will be, however, no order as to costs. Appeal allowed.