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2017 DIGILAW 865 (CAL)

NIKHIL NISCHAL BAGREE v. KRISHNA KUMAR KOTHARI

2017-11-13

SABYASACHI BHATTACHARYYA, SANJIB BANERJEE

body2017
JUDGMENT : 1. The appeal is directed against an interlocutory order in a testamentary matter. 2. The alleged testator is one Gopal Das Bagree, who owned several properties, including the Bagree market in this city and elsewhere, including in Rajasthan. 3. The appellant herein claims to have been adopted by the widow of the alleged testator by and under a registered deed of adoption. The adoption has been questioned by way of a suit pending in this Court. 4. The appellant has been tentatively regarded as entitled to lodge a caveat and it is at the appellant’s protest that the petition for grant of probate has become contentious. 5. In the contested probate proceedings, an order was passed on June 27, 2008 by which certain directions were issued in respect of various properties covered by the estate of the alleged testator. One of the directions pertained to a property in Bikaner. An administrator was appointed for the Bikaner property to be sold. 6. The appellant claims that in or about 2013, the appellant came to know that the Bikaner property had been sold by the propounders prior to the order dated June 27, 2008 and the attention of the Court was not drawn to such fact. 7. According to the appellant, conflicting versions were presented before the single Bench by the propounders, which should have prompted the single Bench to pass appropriate orders as sought, including for the sale proceeds of the Bikaner property to be deposited in court. 8. The propounders contended that Goura Devi, the widow of the alleged testator, had entered into an agreement for sale of the Bikaner property and the Bikaner property was sold and the proceeds were received by the widow of the alleged testator. According to the propounders, a sum of Rs.2.5 lakh was paid by the purchasers of the Bikaner property. Consideration is claimed by the propounders to have been made over in cash and a purported document said to have been executed by Goura Devi had been produced to demonstrate that the entire consideration was received by her. 9. According to the appellant, even if it is accepted that Goura Devi sold the property, the propounders or executors ought to have resisted such sale since by virtue of the Will said to be propounded herein, Goura Devi had no right to the Bikaner property. 9. According to the appellant, even if it is accepted that Goura Devi sold the property, the propounders or executors ought to have resisted such sale since by virtue of the Will said to be propounded herein, Goura Devi had no right to the Bikaner property. The appellant emphasises that since the propounders here were contemporaneously aware of the sale of the Bikaner property and, as attorneys of Goura Devi subsequently completed the transactions and the registration of the deed of conveyance, the propounders have to be held guilty for having committed acts of devastation and misappropriation. The appellant asserts that it is not open to the propounders to assert in the same breath that Goura Devi was not a beneficiary under the Will and that it was on Goura Devi’s instructions that a property of the estate was sold. 10. The appellant says that the relevant property would have been of value in excess of Rs.25 lakh and, accordingly, the appellant had sought a direction for the propounders to deposit such amount. The appellant is aggrieved that no appropriate order in respect of the Bikaner sale proceeds was passed by the single Bench. 11. The appellant is not a beneficiary under the alleged Will. Indeed, there are doubts as to whether the appellant can be regarded as a caveator, particularly, since the appellant’s adoption by Goura Devi is the subject-matter of a pending suit. As to the stand taken by the propounders before the Single Bench, there appears to be a clear contradiction. However, the appellant herein is not entitled to any benefit arising out of such mutually exclusive stands taken by the propounders. 12. The propounders could never have said, in the same breath, that Goura Devi was not a beneficiary under the Will and that they had sold the Bikaner property under the instructions of Goura Devi. 13. However, such aspect of the matter requires consideration at a later stage. The proceeds from the sale of the Bikaner property will be the property of the beneficiaries under the Will in the event probate is granted. In the event probate is declined, the intestate heirs of the alleged testators will be entitled to the estate, and consequently, to their respective shares out of the sale proceeds of the Bikaner property. 14. The proceeds from the sale of the Bikaner property will be the property of the beneficiaries under the Will in the event probate is granted. In the event probate is declined, the intestate heirs of the alleged testators will be entitled to the estate, and consequently, to their respective shares out of the sale proceeds of the Bikaner property. 14. Without otherwise interfering with the judgment and order impugned, the appellant’s right would be sufficiently protected if it is observed that in the event the appellant’s locus to challenge the Will is established or the appellant is able to successfully dislodge the Will propounded by the respondent nos. 1 and 2, it will be open to those then entitled to the estate of Gopal Das Bagree to seek the value of the Bikaner property, together with interest thereon, from the respondent no. 1 or 2, subject to there being an appropriate direction of a competent court in such regard. As of now, the appellant does not show any unimpeachable right to claim the estate of the alleged testator for the appellant to be given any protection. 15. It is recorded that it had been contended on behalf of the respondent nos. 1 and 2 before the single Bench that the total consideration received in respect of the Bikaner property was about Rs.2.5 lakh in or about the year 2003, whereas the appellant insists that such property would have been of value in excess of Rs.1 crore at today’s prices. APO No. 467 of 2017 and GA No.3236 of 2017 are disposed of without otherwise interfering with the order impugned. There will be no order as to costs.