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2013 DIGILAW 893 (CAL)

Seema Sarin v. Sudesh Chander Talwar

2013-12-04

ASHIM KUMAR BANERJEE, DEBANGSU BASAK

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Judgment : Debangsu Basak, J. Two natural heirs of a deceased requested a revisit to the consent affidavits given by them in an application for grant of probate after probate was granted on the ground that the consent affidavits were obtained by fraud and/or misrepresentation and/or given by mistake. The respondent herein persuaded the learned Single Judge to turn down such request on the principle of non est factum. Hence the appeal. Bhagwati Talwar had two sons, namely, Jagdish Chander Talwar and Sudesh Chander Talwar and two daughters, namely, Neena Sarin and Kuku Narang. Bhagwati Talwar executed a Will dated January 3, 1995. One daughter Kuku Narang died prior to the Will. By the Will dated January 3, 1995 the testatrix gave the Delhi property to the two sons and Neena Sarin absolutely in equal proportion. However, the Will provides that in the event of Neena Sarin predeceasing the testatrix, the Delhi property could go to the two sons absolutely in equal proportion. Neena Sarin died on May 16, 2003. The testatrix died on November 29, 2006. Neena Sarin was survived by her two daughters, namely, Seema and Reema. Both the daughters affirmed two several affidavits on September 17, 2007 and September 18, 2007 giving consent to the grant of probate of the Will of the testatrix. Probate of the Will of the testatrix was granted by this Hon’ble Court on December 18, 2008. The maternal uncles of the appellants called upon the appellants to vacate the Delhi property by letters dated May 6, 2010 and May 13, 2010. On receipt of such letters from the maternal uncles the appellants applied to this Hon’ble Court for revocation and cancellation and setting aside of the probate and for permission to file their objections to the probate. Such application was disallowed giving rise to the instant appeal. Mr. Shyama Prasad Sarkar, learned Senior Counsel appearing for the appellants contended, the principle non est factum would apply to a commercial transaction and could not be applied with the same rigor in case of a testamentary proceedings. He also raised the question of lack of jurisdiction of the Court to receive the application for probate and grant the same. He placed the letter dated September 6, 2007 by which the maternal uncles had forwarded a copy of the affidavit that Seema and Reema signed. He also raised the question of lack of jurisdiction of the Court to receive the application for probate and grant the same. He placed the letter dated September 6, 2007 by which the maternal uncles had forwarded a copy of the affidavit that Seema and Reema signed. He contended, the maternal uncles did not disclose the Will of the testatrix to the appellants when the maternal uncles wanted the appellants to affirm the affidavits. According to him, the appellants did not know the contents of the Will. A copy of the Will was not enclosed with the letter dated September 6, 2007. The appellants affirmed the affidavit on good faith and on trust. He contended, the maternal uncles got the appellants to affirm the affidavit by practisizing fraud and at least by misleading the appellants. He relied on All India Reporter 1959 Supreme Court page 443 at paragraphs 23 and 29 (H. Venkatachala Iyengar v. B.N. Thimmajamma & Ors.) to contend, the execution of the Will has to be established to the conscience of the Court. He commented upon the manner in which the maternal uncles had dealt with the appellant’s mother and the appellants by giving them gifts. Mr. Anirban Ray, learned Counsel appearing for the respondent contended, the appellants were well-aware of the contents of the Will. He relied upon the contents of the affidavit affirmed by the appellants and in particular, paragraph 3 thereof in this context. He contended, when probate was granted on the basis of affidavits affirmed by the appellants they were under onerous duty to overcome such grant and that the appellants had not made out any case in their application warranting this Hon’ble Court to recall the grant of the probate. He relied upon All India Reporter 2010 Supreme Court (Supplementary) page 291 (M/s. Grasim Industries Ltd. & Anr. V. M/s. Agarwal Steel) for the principle of non est factum. He referred to 1975(3) All England Reporter page 1017 (United Dominions Trust Ltd. V. Western & Anr.) to contend that the onus lay on the appellants to prove that their consent were obtained by fraud or were given under mistake of fact. He contended, the appellants set up a title contrary to that of the testatrix in respect of the property that could not be agitated in a probate proceeding. He contended, the appellants set up a title contrary to that of the testatrix in respect of the property that could not be agitated in a probate proceeding. In this context he relied on 2008(4) Supreme Court Cases page 300 Paragraphs 58 and 84 (Krishna Kumar Birla v. Rajendra Singh Lodha and Ors.). Relying upon 2012 (1) Calcutta Law Times page 234 (High Court) (Bharat Kumar Amritlal Sayani & Ors. V. Jayantilal Kalidas Sayani & Ors.) he contended, when the grant had been made on the basis of a consent affidavit the person giving such consent could not ask the Court to reopen the grant without any substantial reason. We have considered the rival contentions and the pleadings of the parties. The learned Single Judge considered the law for revocation of the probate. His Lordship referred to various provisions of the Indian Succession Act, 1925 and the Original Side Rules of our Court. His Lordship considered the decisions cited at the Bar. On consideration of the facts as placed, His Lordship framed the question ‘whether the circumstances as brought out in the application for revocation of the grant of probate warrant its revocation or suspension?’ His Lordship came to the finding, the application of the appellant was liable to be dismissed. Before us the appellants stressed very heavily on the following facts:– (i) Only one immovable property was involved in the Will (ii) The appellants were residing at the immovable property initially with their parents and now by themselves; (iii) The appellants were maintaining and upkeeping the said immovable property; (iv) The relationship between the appellants and their maternal uncles was cordial; (v) The appellants did not disbelieve the maternal uncles when maternal uncles wanted the consent affidavit from the appellants; (vi) The consent affidavits had been prepared at the behest at the maternal uncles and were sent under cover of the letter dated September 6, 2007. (vii) The appellants did not know of the contents of the Will. (viii) They were aware of a different version of the Will of the testatrix. The aforesaid factual aspect as stressed before us does not appear to be contended with the same vigor before the learned Single Judge. Had such facts been placed the result might have been different. By the letter dated September 6, 2007 the maternal uncles of the appellants asked the appellants to affirm the consent affidavit. The aforesaid factual aspect as stressed before us does not appear to be contended with the same vigor before the learned Single Judge. Had such facts been placed the result might have been different. By the letter dated September 6, 2007 the maternal uncles of the appellants asked the appellants to affirm the consent affidavit. The contents of the Will were not disclosed in the letter. The copy of the Will was not enclosed with the letter. The tenor of the letter was that of an elderly member of the family commanding a junior member of the family to execute a document. The letter along with the consent affidavit prepared at the behest of the uncles was sent. The appellants executed two affidavits. Those two affidavits were used as consent affidavits to obtain the grant of probate. The consent affidavits referred to the Will of the testatrix. However, Mr. Ray for the respondent could not establish before us conclusively, the appellants were aware of the contents of the Will. The appellants contended, the consent affidavit was obtained by practising fraud, misrepresentation and undue influence, particulars whereof were tabulated at paragraph 40 of their application. The appellants tabulated various grounds at paragraph 29 of their application claiming that the execution of the Will was shrouded under various suspicious circumstances. The appellants claim to be residing at the Delhi property. It is the claim of the appellants that they were residing at the Delhi property since long and were maintaining and upkeeping the said property. In the absence of the Will the appellants would otherwise succeed to the Delhi property as natural heirs of the testatrix. The sequence of events leads us to a conclusion that on September 17, 2007 and September 18, 2007 when the appellants were affirming the consent affidavits they were for all practical purposes agreeing to vacate their residential house to which they would succeed in case of intestacy. This raises a doubt in the mind as to whether the appellants had done so consciously knowing the contents of the Will or whether they were led to affirm such consent affidavits by the maternal uncles without the contents of the Will been made known to them. In other words what is the answer to the question framed by the learned Single Judge. This can be effectively answered upon a trial. In other words what is the answer to the question framed by the learned Single Judge. This can be effectively answered upon a trial. A defence of non est factum is set up to deny the execution of a deed or document. This would succeed in the event force or fraud is proved. An executant of a document is presumed to have read and understood the document prior to its execution but he can avoid it if it is proved that it was obtained by fraud or force as held in All India Reporter 2010 Supreme Court (Supplement) page 291 (M/s. Grasim Industries Ltd. & Anr. V. M/s. Agarwal Steel). Non est factum was considered in 1975(3) All England Reporter page 1017 (United Dominions Trust Ltd. v. Western & Anr.). Scarman L J in United Dominions Trust Ltd. case (Supra) found that a document should be held to be void - because that is what this document is said to be - ‘‘only when the element of consent to it is totally lacking, ie more concretely, when the transaction which the document purports to effect is essentially different in substance or in kind from the transaction intended.’’ In the Dominion Trust case (Supra) the defendant executed a document in the blank. It was held that the defendant was bound by it. However, in that case the defendant initially admitted liability and judgment was given against him. Thereafter, the defendant asked for fresh trial which was granted. On trial his defence of non est factum was not accepted. Therefore, in a given fact scenario to test the defence of non est factum a trial is necessary. In this case we are of the opinion that the appellant should be afforded a trial. On trial the appellants may or may not be successful. The case reported in 2012 (1) Calcutta Law Times page 234 (High Court) (Bharat Kumar Amritlal Sayani & Ors. V. Jayantilal Kalidas Sayani & Ors.) recognizes that a grant is not infallible and that it can be reopened. It held that the categories or situations when the Court will permit reopening of the grant may not be closed. The case reported in 2012 (1) Calcutta Law Times page 234 (High Court) (Bharat Kumar Amritlal Sayani & Ors. V. Jayantilal Kalidas Sayani & Ors.) recognizes that a grant is not infallible and that it can be reopened. It held that the categories or situations when the Court will permit reopening of the grant may not be closed. However, it went on to hold that to reopen a grant obtained on, inter alia, the consent of the applicant he has to show that such consent was vitiated by force of fraud or undue influence or coercion or illegality or mistake or like circumstance. We have already held that the facts in the instant case gave rise to doubts which requires a trial. The appellants have clarified that they have for the purpose of the instant case not challenged the title of the testatrix. In such view the ratio of 2008 (4) SCC 300 (Krishna Kumar Birla v. Rajendra Singh Lodha and Ors.) is not attracted. The question of lack of jurisdiction of this Hon’ble Court to receive the probate application is kept open. All questions that were raised by the parties are kept open for the purpose of the determination at the trial. In the circumstances the appeal stands allowed. The probate granted stands revoked. The application for grant of probate is set down as contentious cause. The appellants will be entitled to file affidavit objecting to the grant of probate within four weeks from date. The appellants are required to be put on terms in view of their conduct. The appellants will deposit a sum of Rupees one lakh as costs with the Registrar, Original Side for the respondent which will abide by the result of the probate proceedings. Such costs are to be deposited within 3 weeks from date. Deposit of costs is a condition precedent for the appellants to filing their affidavit. The Registrar will deposit such sum in an interest bearing fixed deposit with any Nationalized Bank and keep the same renewed until further orders of the learned Single Judge. In the event the appellant is not successful in the probate proceedings the said sum of Rupees one lakh will be appropriated by the respondent as costs in addition to any other cost that the learned single Judge may award. In the event the appellant is not successful in the probate proceedings the said sum of Rupees one lakh will be appropriated by the respondent as costs in addition to any other cost that the learned single Judge may award. The parties will maintain status quo with regard to the Delhi property till disposal of the probate proceedings. Ashim Kumar Banerjee, ACJ: I agree.