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Kartick Chandra Shaw Vs. Sm. Ranjita Pal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 4513 of 1975
Judge
Reported inAIR1977Cal496
ActsSuccession Act, 1925 - Section 283; ;Transfer of Property Act, 1882 - Sections 40 and 54; ;Specific Relief Act - Section 3; ;Trusts Act - Section 91
AppellantKartick Chandra Shaw
RespondentSm. Ranjita Pal and ors.
Appellant AdvocateS.P. Roy Chowdhury, ;Phani Bhusan Das and ;Ashok Maity, Advs.
Respondent AdvocateB.K. Pande and ;M.K. Roy, Advs.
Cases Referred(Nabin Chandra v. Nibaran Chandra
Excerpt:
- .....as near relatives of the testator, opposite parties nos. 1 and 2 being the two daughters, the opposite party no. 3 being the widow and the opposite parties nos. 4 to 7 being the other four sons. initially the opposite parties nos. 1 and 2, the daughters of the testator contested the application for grant of iprobate on the ground that the testator has no capacity and alleging exercise of fraud, undue influence and coercion on the testator by the legatees. the other heirs of the testator however did not challenge the will. it is further stated that the opposite parties nos. 1 and 2 filed application for injunction restraining the petitioner and opposite parties nos. 3 to 7 from alienating the properties mentioned in the schedule of the application for grant of probate. the said.....
Judgment:

Banerjee, J.

1. This rule is directed against an order passed by the District Judge, Midnapore, adding the opposite party No, 8 to contest the Will on the ground that he has acquired by virtue of a deed of agreement executed by two heirs of the testator in respect of the property which the testator left behind (sic). The case of the petitioner in thisapplication is that on 6th Feb., 1973 the petitioner as executor of the Will of late Upendranath Shaw filed an application for grant of the probate of the Will dated 29th Oct., 1969 left by late Upendra Nath Shaw before the District Delegate, namely, the Second Court of the learned Munsif, Contai giving rise to J. Misc. Case No. 13 of 73 but the case having been contested by the opposite parties Nos. 1 and 2, the said application for grant of probate was returned to the petitioner for presentation before the learned District Judge, Midnapore. In the said application for grant of probate it was stated that Upendra Nath died at his residence on 6th Dec., 1971 leaving a Will duly executed by him on 29th Oct., 1969. It is stated that the Will was an outcome of free Will of the testator and was executed and attested in accordance with law. It is further stated that the petitioner herein was appointed executor. In the said application the opposite parties Nos. 1 to 7 were named as near relatives of the testator, opposite parties Nos. 1 and 2 being the two daughters, the opposite party No. 3 being the widow and the opposite parties Nos. 4 to 7 being the other four sons. Initially the opposite parties Nos. 1 and 2, the daughters of the testator contested the application for grant of iprobate on the ground that the testator has no capacity and alleging exercise of fraud, undue influence and coercion on the testator by the legatees. The other heirs of the testator however did not challenge the Will. It is further stated that the opposite parties Nos. 1 and 2 filed application for injunction restraining the petitioner and opposite parties Nos. 3 to 7 from alienating the properties mentioned in the schedule of the application for grant of probate. The said application was contested by the petitioner and other eons of the testator and the learned District Judge rejected the application for temporary injunction. Subsequent to that, the opposite parties Nos. 1 and 2 also filed an application before the Subordinate Judge who was hearing the matter on transfer that they are not going to oppose this application for grant of probate and on such application being filed the learned Subordinate Judge fixed 23rd Sept., 1975 for hearing ex parte the application for grant of probate. On 22nd Sept., 1975 however the opposite party No. 8 filed an application for permission to contest the probate proceeding on the ground that he has acquiredan interest by virtue of two deeds of agreements for sale executed in his favour by opposite parties Nos. 1 and 2 on 28th March, 1973 on receipt of Rs. 6,000 agreeing to sell three plots of land with structures standing thereon. It is stated that the premises was occupied by the opposite party No. 2 as a tenant at a monthly rental of Rs. 35. It is further stated that in view of the agreement for sale the opposite party No. 8 has acquired an interest in the estate of the deceased and is entitled to contest the Will for grant of a probate under Section 283 of the Indian Succession Act. It must be stated that the agreement for sale, which is annexed to the affidavit-in-opposition is admittedly an unregistered document the Court below having allowed the application of the opposite party No. 8 to contest the probate proceeding, the petitioner herein moved this application and obtained the present rule.

2. Mr. Roy Chowdhury on behalf of the petitioner contended that the agreement for sale cannot and does not create any interest in the immoveable property and the relief by way of specific performance is discretionary to the Court and as such the right does not create any right whatsoever in the estate of the deceased and therefore the application filed by the opposite party for addition of party in the probate proceeding for the purpose of challenging the Will is not maintainable. Secondly Mr. Roy Chowdhury contended that the opposite party No. 8 may have some interest under the agreement for sale but he has no interest in the estate of the deceased at all and as such the application by him is not maintainable. Thirdly it is contended by Mr. Roy Chowdhury that the bare possibility of filing the suit would not give the party concerned an Interest sufficient to oppose the probate of the Will. Mr. Roy Chowdhury further contended that a document, creating an interest in an immoveable property must be registered. An agreement for sale even if registered cannot create an interest in the immoveable property.

3. Mr. Roy Chowdhury further contended that the application of opposite party No. 8 is premature because if he has an interest he can after the grant of probate pray for revocation of the grant and the Court has no power to thrust a party on the propounder if he does not want to make (him) a party in the proceeding,

4. Mr. Panda on behalf of the respondent however challenged the contention put forward by Mr. Boy Chowdhury. In so far as the Court's power to add a party to the proceeding is concerned, it must be stated that the Court has a power to add a person to the proceeding if the Court is satisfied that his claim of interest in the estate of the deceased Is tenable. Mr. Panda however contended that under Section 55(6)(b) of the Transfer of Property Act, the agreement for sale creates sufficient interest in the property by which a person covered by the agreement can maintain an application under Section 283 of the Transfer of Property Act. Mr. Panda relied upon the case reported in : AIR1956Cal462 (Rabindra Nath v. Harendra Kumar).

5. In our opinion, the agreement for sale does not create an interest in the property which is the subject-matter of the sale. Under Section 54 of the T. P. Act an agreement for sale of immoveable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not create any interest in or charge on such property or in other words the contract for sale does not create either an interest in or a charge on the property. It at best is a contract for sale which is only an equitable right of a purchaser and it does not create any interest in the land which is the subject-matter of the contract In the case reported in : AIR1956Cal148 (India Elec. Works v. Mantosh) it has been held by the Division Bench of this Court that even after a decree for specific performance has been passed, the purchaser has no interest in the property. From Section 54 of the T. P. Act it is clear to us that the agreement for sale does not create of itself any interest in or charge on the property which was contracted to toe sold between the parties,

6. In the case reported in : [1967]1SCR293 (Ram Baran v. Ram Mohit) it has been held, inter alia, that in the case of an agreement for sale entered into prior to the passing of the T. P. Act, it was the accepted doctrine in India that the agreement created an interest in the land itself in favour of the purchaser, and following this doctrine the view was that a covenant for pre-emption contained in a deed of partition, which was unlimited in point of time, was not enforceable in law. But there has been achange in the legal position in . India since the amending of the Transfer of Property Act in 1929. Section 54 of that Act states that contract for sale of immoveable property 'does not of itself, create any interest in or charge on such property'. In the case reported in : [1967]1SCR873 (Lalji jetha v. Kalidas) The Supreme Court also decided in the same line. At page 981 in para. 9 it has been stated that S, 54 of the Transfer of Property Act in terms provides that such a contract of sale does not create as in English law any equitable estate in the immovable property which is the subject-matter of the contract. But the contract creates an obligation which is recognised by Section 3 of the Specific Relief Act, 1877 and Section 91 of the Indian Trusts Act, 1882. But the Supreme Court in both, the cases held that a contract for sale does not create any interest in or charge on the immoveable property contracted to be sold. In the ca.se reported in : [1977]2SCR341 (Narandas v. S. A. Kamtam) The Supreme Court also considered the nature of the right created on the immoveable property in respect of a contract of sale, it has been stated that a contract of sale in view of Section 54 of T. P. Act does not of itself create any interest in, or charge on the property. The personal obligation created by a contract of sale (as recognised in Section 3 of the Specific Relief Act and Section 91 of the Trusts Act) is described in Section 40 of the T. P. Act as an obligation arising out of contract and annexed to the ownership of property, but not amounting to an interest or easement therein.

7. Mr. Panda however heavily relied on the case reported in : AIR1956Cal462 (Rabindra Nath Banerjee v. Harendra Kumar). In the said judgment toe single Judge of this Court considered the matter under Order 21, Rule 89 regarding the interest of a person who is a party to the agreement of sale and payment of earnest money before proclamation for sale. His Lordship was considering the effect of Section 54 of the Transfer of Property Act in the following terms:--

'The language of Section 54 emphasises that of itself a contract for sale does not create any interest or charge on the property. But very often a contract for sale does not stand by itself where there is a part payment of the purchase price or payment of what is called the earnest money. In that event Section 55(6)(b), Transfer of Property Act would beattracted and it will be treated as though the ownership of the property had passed and there is a charge for part of the purchase money paid.'

In our opinion, this observation cannot be said to be a correct proposition of law in view of the Supreme Court's decision cited above. The interest in the immovable property valued at more than Rs. 100 cannot, in our opinion, be transferred by an unregistered document as is clear under Section 17 of the Registration Act.

8. In our opinion, therefore, a party to the agreement for purchase has no right or interest in the immovable property left by the testator and as such, has no locus standi to oppose the application for grant of probate under Section 283 of the Indian Succession Act. The view we take, is supported by the decisions of the Division Bench of this Court reported in : AIR1958Cal377 (Southern Bank v. K. Ganeriwalla) in which it has been held that a creditor of the deceased testator has no locus standi to oppose the grant of a probate. The Division Bench of this Court in considering the principle of Privy Council's decision came to the finding that the creditor of an heir of the deceased is not entitled to citation and on that ground the probate cannot be revoked. At p. 455 (of Cal WN): (at p. 384 of AIR Cal) their Lordships held as follows:--

'All that I am concerned with at the present moment is that it was held in this case that a creditor of a testator's heir had no interest in his estate.'

9. It is further held that a creditor of an heir of a testator had no interest in his estate and was not entitled to be served with a citation. In the present case we have also held that by dint of an agreement for sale the parties to the agreement have no interest or charge in respect of immoveable property.

10. Mr. Panda contended that the bare possibility of an interest is necessary to establish the locus standi of the opposite party No. 8 and there cannot be any doubt that the opposite party No. 8 has a possibility on the basis of the agreement of sale and therefore he must be said to be a person claiming to have any interest in the estate of the deceased. In the case reported in 36 Cal WN 635 : (AIR 1932 Cal 734) (Nabin Chandra v. Nibaran Chandra) it has been held that 'possibility of an interest' does notapply to the possibility of a party filling a character which would give him an interest, but the possibility of his having an interest in the result of setting aside, the Will. It was held therein that in interpreting Section 283 of the Indian Succession Act, a person must have a real interest in the estate and a purchaser from an heir after the death of the testator has a locus standi and to have it, it is not necessary for the objector to show that he had an interest in the estate at the time of the testator's death. The main point for consideration is whether the person applying to be added in order to oppose the grant of probate must have a real interest in the estate of a deceased. A person entering into an agreement for sale has no interest in the immoveable property left by the deceased testator. His claim at best is a claim for filing a suit. Moreover the case reported in 36 Cal WN 635 : (AIR 1932 Cal 734) (Nabin Chandra v. Nibaran Chandra) has specifically repelled the argument that the 'possibility of an interest does not apply to the possibility of a party filling a character which would give him an interest'.

11. In our opinion, therefore, the learned Judge was not right in allowing the application of the agreement-holder opposite party No. 8 to be added as a party defendant.

12. The Rule is, therefore, made absolute. The order of the learned Judge is set aside.

13. There will be no order as to costs.

G.N. Ray, J.

I agree.


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