Sharad Subramanyan & Anr vs Soumi Majumdar & Anr

Sahidullah Munshi, J

The Court : This suit arises out of P.L.A. 325 of 2001 filed by the executors of the alleged last Will and Testament of the deceased seeking grant of probate of the said Will executed by the deceased on 21st October, 1992 and Codicil to the said Will executed on 21st June, 1998.

Pursuant to leave granted by this Hon'ble Court vide its order dated 14th May, 2013, caveat was permitted to be filed and in support of such caveat affidavit was also filed by the defendants Soumi Majumder and Shantanu Bose on 26th July, 2013, as a result of which the probate application became contentious and P.L.A. 325 of 2001 has been converted into Testamentary Suit. Probate application (now converted into plaint) disclosed that the deceased Reba Mitra, a Hindu governed by the Dayavaga School of Hindu Law, died testate on 27th November, 1998 leaving behind a Will dated 21st October, 1992 being her last Will and Testament in English language and character. The said Will was registered with the Registrar of Assurances, Calcutta on 21st October, 1992. The deceased also executed a Codicil of the said Will on 21st June, 1998. According to the deceased Will and Codicil is proved by the affidavit of Dr. Lalit Kumar Ajitsaria one of the attesting witnesses to the said Will and Codicil. The deceased appointed the plaintiffs and one Lily Rama Subramanyan as the executors of her said Will. The said Lily Ramasubhramanyan, however, expressed her non-willingness to join the application for probate and has renounced her executorship. Particulars of the properties of the deceased has been set out in the affidavit of assets formed on 18th September, 2001 and has been filed with the probate application. The deceased died without any issue and her husband predeceased her. Therefore, there is no legal heir left by the deceased as per Hindu Succession Act, 1956. In such circumstances the executrix/plaintiffs prayed for grant of probate of the Last Will and Codicil of the deceased above named with effect throughout the Union of India.

The caveators in their affidavit of caveat contended inter alia that one Kamal Kumar Mitra (since deceased) was fully ceased, possessed and/or sufficiently entitled to the immovable properties being premises no. 13/1, Promotesh Barua Sarani, (formerly known as Ballygunge Circular Road) Kolkata- 700019, during his life time, entered into agreements dated 22.05.1988 with T.K. Ramasubramanyan thereby creating a tenancy in respect of the ground floor flat, a further agreement dated 1st November, 1988 with Sharad Subramanyan to provide the tenants the fittings and fixtures in the ground floor at a monthly charge of Rs.750/- and on 24th February, 1989 a third agreement was executed by and between Kamal Kumar Mitra (since deceased) and the said Sharad Subramanyan following thereto a fourth agreement on 28th April, 1989 with one T.K. Ramasubramanyan (HUF) by virtue of which the former agreed to create a lease in respect of the whole of the terrace of the first floor of the said property at 13/1, Promotesh Barua Sarani, Kolkata- 700019 to enable the latter to construct at his own cost additional floor. The said agreement was for a period of 21 years, commencing from 1st April, 1989 with a clause for renewal for a further period of 21 years after expiry of every period of 21 years.

On 19th March, 1991 Kamal Kumar Mitra executed his Last Will and Testament under which he appointed his wife Reba Mitra (since deceased) as executrix and on her death, said Sharad Subramanyan, Subir Kumar Deb and Smriti Kumar Bose (since deceased) would be the executors of his estates. Under the said Will, Kamal Kumar Mitra had given all his movable properties to his wife, Reba Mitra with limited right of life interest therein, that is, the property comprised in premises no. 13/1, Promotesh Barua Sarani hereinafter to be called the 'said property' which is included in the affidavit of assets filed by the plaintiffs in the present probate application.

Kamal Kumar Mitra died intestate on 26.09.1991 and on his death, Reba Mitra the executrix named in the said Will applied for grant of probate under Testamentary Suit no. 88 of 1993 filed before the Hon'ble High and the probate of the said Will was granted to her vide order dated 14th May, 1993. Certain dates in this proceeding are very important to take note of and the events on such dates are undisputed. In fact, these dates have been incorporated and filed before this Court at the time of hearing by the defendant in their compilation. The said dates are set out below:

LIST OF DATES :

Date

Particulars

19.03.1991.

Kamal Kumar Mitra who was absolute owner of the property being the premises No.13/1, Promotesh Barua Sarani, Kolkata - 700020 (hereinafter referred to as "the said property") executed a Will bequeathing his all moveable and immoveable assets including the said property. Under the said Will, all moveable properties were given to his wife, Smt. Reba Mitra absolutely. She was given only life interest in the said property. Reba Mitra was appointed as sole executrix. If Reba Mitra predeceases him or after her death, Sharad Subramanyan, Subir Kumar Deb and Smriti Kumar Bose were appointed executors. It was further stated in the said Will that on the death of Reba Mitra, the said property would be given to Smt. Sabita Bose, Smt. Latika Deb and Sri Biswajeet Mullick each having undivided one third share therein.

26.09.1991

Kamal Kumar Mitra died testate.

28.11.1991

Reba Mitra executed lease deed in respect fo the second floor of the said property in favour of the Subramanyans' Hindu Undivided Family at a monthly rent of Rs.2,000/-. The total period of the lease was for 126 years.

21.10.1992

Smt. Reba Mitra executed lease deed in respect of the first floor of the said property in favour of Taxation Services Syndicate Pvt. Ltd. for a term of 99 years with an option to the lessee for renewal for another term of 99 years at a monthly rent of Rs.2,000/-. The lessee company was controlled by Subramanyans.

21.10.1992.

Smt. Reba Mitra executed a Will in which Sharad Subramanyan was the executor.

14.05.1993

Smt. Reba Mitra executed Second Will in which Subramanyans were not appointed executors.

14.05.1993

Reba Mitra applied for grant of probate with a copy of the said Will under the Testamentary Suit No. 88 of 1993 before the Hon'ble Calcutta High Court and the same was granted on 14.05.1993. A Xerox copy of the probated Will is annexed hereto and marked with the letter "A".

30.05.1996.

Sabita Bose, one of the beneficiaries in the Will of Kamal Kumar Mitra died intestate leaving her surviving her daughter and son, Smt. Soumi Majumdar and Sri Santanu Bose respectively.

14.12.1997

Reba Mitra executed a Third Will in which Subramanyans were not appointed executors. This Will was probated on 17th August 2001 by the District Judge at Alipore in case No: 312 of 1998.

21.06.1998

Smt. Reba Mitra executed a codicil to the Will dated 21.10.1992.

27.11.1998

Smt. Reba Mitra died testate.

15.12.1999

And

16.02.2000

The Hon'ble Single Bench of this High Court passed orders in Testamentary Suit No. 88 of 1993 to the following effect:

Existing executors including Sharad Subramanyan were discharged.

Sharad Subramanyan has no right to continue in the possession of the first floor.

Swarup Kumar Ghoshal, Advocate was appointed as Administrator-pendente-lite.

Sharad Subramanyan was directed to deliver up possession of the first floor.

Copies of the said orders are annexed hereto and collectively marked with the letter "B".

28.06.2000

Sharad Subramanyan being aggrieved by the aforesaid orders, preferred an appeal before the Division Bench being G.A. No.4873 of 1999. The Hon'ble Division Bench by its order and judgment dated 28.06.2000 held that the life interest created in favour of Reba Mitra cannot be enlarged into absolute right over the property. It was also held that there cannot, however, be any doubt that Reba Mitra having life interest, she cannot confer a right upon a third party which would extend beyond her own interest. The copy of the said order is attached hereto and marked with the letter "C". 28.04.2006 Sharad

28.04.2006

Sharad Subramanyan, being aggrieved by the aforesaid order preferred a SLP before the Hon'ble Supreme Court which was eventually numbered as Civil Appeal No. 4153 of 2002. The Supreme Court by its judgment dated 28.04.2006 held as follows:

That there was no material on record from which it could be concluded that disposition of the life interest in favour of Reba Mitra in the Will of her husband K.K. Mitra, was in lieu of or in recognition of her right of maintenance.

Consequently, agreed with the finding of the High Court that Reba Mitra had only a limited right, namely, life interest in the suit property. Thus, she could not have created a long-term lease as she has purportedly done.

A copy of the said judgment is annexed hereto and marked with the letter "D".

2007

Subramanyans through Taxation Services Syndicate Pvt. Ltd. filed an application being the G.A. No: 3908 of 2007 in the aforesaid PLA No. 88 of 1993 for seeking revocation of the probate granted to the will of Kamal Kumar Mitra on the ground that it has a caveatable interest in the said grant. It also filed an application for condonation of delay under Section 5 of the Limitation Act, 1963.

19.03.2008

The Hon'ble Single Bench by its order and judgment dated 19.03.2008 dismissed the said application. It was held that the entire process that culminated in the conclusion of the lis by the Supreme Court order would be undone and reopened for fresh adjudication, if the delay is condoned. Even if the petitioner is permitted to take the challenge forward, it can progress no more upon it being recognized that the only possible issue has been conclusively pronounced by the Supreme Court. The copy of the said order is annexed hereto and marked with the letter "E".

25.09.2008

Taxation aggrieved by the aforesaid order, preferred an appeal being A.P.O.T. No: 164 of 2008 before the Hon'ble Division Bench of this High Court. The Hon'ble Division Bench by its judgment and order dated 25.09.2008 dismissed the appeal. The copy of the said order is annexed hereto and marked with the letter "F"

24.08.2009

Taxation being aggrieved by the aforesaid order of the Division Bench, preferred a Special Leave Petition being S.L.P. (Civil) No. 18963 of 2009 before the Hon'ble Supreme Court. The Hon'ble Supreme Court dismissed the said S.L.P. at the very threshold. A copy of the said order is annexed hereto and marked with the letter "G".

23.06.2008

Smt. Soumi Majumdar and anr. made an application in the P.L.A. No.88 of 1993 for the following reliefs:

Discharge of the administrator-pendent lite;

Smt. Soumi Majumdar and Smt. Latika Deb, both beneficiaries under the Will of K.K. Mitra be appointed as joint administrators to complete the administration and to issue assent to legacy.

Sharad Subramanyan opposed the said application. After hearing, the Hon'ble Single Bench was pleased to grant the aforesaid reliefs and rejected the opposition of Sharad Subramanyan. The Xerox copy of the order dated 23.06.2008 is annexed hereto and marked with the letter "H".

03.09.2008

Sharad Subramanyan being aggrieved by the aforesaid order preferred an appeal being A.P.O.T. No. 326 of 2008 before the Hon'ble Division Bench. The Hon'ble Division Bench by its judgment and order dated 03.09.2008 dismissed the said appeal. The Hon'ble Division Bench held that the Hon'ble Supreme Court by its judgment dated 28.04.2006 passed in the aforesaid Civil Appeal No. 4153 of 2002 had finally decided that Reba Mitra being life interest holder could not have any interest in the said property beyond her lifetime. The Xerox copy of the said order is annexed hereto and marked with the letter "I".

2006-2009

The aforesaid legatees to the Will of Kamal Kumar Mitra sold their respective shares in the said property to Luxmi Housing Pvt. Ltd. by executing separate deeds of conveyance.

2012.

Subramanyans filed three separate suits being Title Suits Nos. 9011, 9017 and 9022 of 2012 before the Civil Judge, Senior Division at Alipore. In the said suits, Subramanyans challenged the assent to legacy and transfer of the said property by the legatees of K.K Mitra to Luxmi Housing Pvt. Ltd. on the plea that the life interest of Reba Mitra in the said property has become full fledged interest by virtue of Section 14(1) of the Hindu Succession Act, 1956 and the same cannot be decided in the Testamentary Suit.

17.08.2013

The said Luxmi Housing filed applications under order VII Rule 11 of C.P.C. for rejection of the plaints and dismissal of the aforesaid suits. The learned Trial Court rejected the said application by its order dated 17.08.2013

31.07.2015

The said Luxmi Housing being by the aforesaid order of the learned Trial Court, preferred revisional application before the Hon'ble Calcutta High Court being C.O. No.4175, 4176 and 4177 of 2013. After contested hearing, the Hon'ble Single Bench was pleased to reject the plaints and dismiss the aforesaid Title Suits. The Xerox copy of the said judgment and order is annexed hereto and marked with the letter "J".q

15.01.2016

The Subramanyans being aggrieved by the aforesaid order dated 31.07.2015, preferred 3 separate Special Leave Petitions being S.L.P. Nos: 32446, 32556 and 32963 of 2015. The Hon'ble Supreme Court by its order dated 15.01.2016 dismissed the said S.L.Ps. The Xerox copy of the said order is annexed hereto and marked with the letter "K".

On the given fact this Court settled following issues by an order dated 22nd November, 2016 :

i. Whether Sharad Subramanyan one of the named executors is entitled to the grant of probate of the last Will and Testament dated 21st October, 1992 and the Codicil dated 21st June, 1998 of the deceased?

ii. Whether Reba Mitra (since deceased) had right title and interest to bequeath premises No. 13/1, Promotesh Barua Sarani, Kolkata- 700019 through the subject Will, contrary to the terms of the probated Will of its original owner Kamal Kumar Mitra (since deceased)?

iii. To what other reliefs, if any, the petitioner is entitled to?

When the issues were settled G.A. No. 2804 of 2016 which was an application filed by the defendants claiming that a particular premises would not have been dealt with by the testatrix in her Will, was also considered by the Court and in consideration of the proposition made under the decision rendered by the Hon'ble Apex Court in the case of Jayamma -Vs. - Maria Bai dead by proposed LRS. and Anr. reported in (2004) 7 SCC 459, in support of the proposition that a probate Court can look into the title of the testator/testatrix as the case may be, was kept open to be decided at the time of final hearing of the suit.

So far the first issue whether probate of the last Will and Testament dated 21st October, 1992 and the Codicil dated 21st June, 1998 can be granted, Mr. Probal Mukherjee learned Advocate for the plaintiff submitted that the Will has been proved by the attesting witness to be genuine and executed by the deceased which can never be shrouded with any suspicious circumstances. The first witness appeared in support of the probate application was Probal Kanti Purkayastha in answer to question no. 28 categorically said that he and Dr. Lalit Kumar Ajitsaria were present when the deceased executed and/or signed the Will along with the people from the Office of the Registrar. In answer to question nos. 11, 18 to 25 the said witness deposed about the factum of execution of the Will. The witness had also identified the signatures of Reba Mitra on the Will. In answer to question nos. 29, 30 and 31 the witness deposed that the deceased was physically and mentally fit at the time of execution of the Will. According to Mr. Mukherjee the Will thus has been proved by the said witness. Mr. Saha appearing for the defendants, however, submitted that although, Dr. Ajitsaria was the common witness for both the documents namely, the Will and the Codicil was never called as a witness to prove those documents and according to him this is a suspicious circumstance and the reason has not been explained away by the propounder. According to Mr. Saha this is sufficient ground to refuse grant of probate, if the propounder fails to explain away the doubts and suspicion from the minds of the Court.

It is apparent on record that although, caveat was allowed to be filed and affidavit in support of caveat has been filed by the defendant no question was raised about the genuineness of the Will. In cross-examination of the said witness no.1 for the plaintiff no question was put about the genuineness of the Will, testamentary capacity of the testatrix, about the mental and physical condition of the testatrix. No question either has been put about the existence of any suspicious circumstances. However, the trend of cross-examination by the defendant appears to be mainly to the challenge about the propriety of the execution of the Will in respect of the property comprised in 13/1, Promotesh Barua Sarani (formerly known as Bullygunge Circular Road) Kolkata-700019. The defendants challenge the capacity of the testatrix to include the said property which does belong to her at all and which fact has been established in successive litigations right up to the Highest Court of the land that the deceased had no better interest than her limited right over the said property during her lifetime and that the Courts have repeatedly decided that her such limited interest over the property cannot be enlarged to be an absolute interest thereon. The defendant's attack is based on these undisputed finding of this Hon'ble Court and the Hon'ble Apex Court. However, this question is to be decided at the time when I will deal with issue no.2 and the issue raised in the application being G.A. no. 2346 of 2016 which has been kept open to be decided along with the other issues.

The second witness of the plaintiff was Shri. Pranab Kumar Bannerjee who is the attesting witness to the Codicil. The said witness in answer to question nos. 4 to 14 deposed that he personally was present at the time of execution of the said Codicil. The witness identified the signature of the testatrix and the signature of the other attesting witnesses on the Codicil. The witness appears to have proved execution of the Codicil too. Cross-examination of this witness is also on the same line as it was done in respect of the witness no.1. The defendant has not adduced any evidence separately. Sharad Subramanyan, one of the executors/trustees named in the Will is the third witness and he deposed all about social life of the deceased to show that she was highly educated and belong to a posh society. The witness deposed that he was present at the time of execution and registration of the Will as also at the time of execution of the Codicil. There is, however, no cross-examination on the issue of testamentary capacity or fraud being practiced or undue influence being exercised or coercion being committed by the defendants. Materials disclosed before this Court by the attesting witness as also the propounder, does not reveal that there was any circumstances under which the Will and the Codicil were executed are shrouded by any suspicion. Therefore, apparently the application for grant of probate up till now as I have discussed seems to be meritorious. There is yet another aspect of this matter which I shall now discuss threadbare.

Now I shall answer issue no.2 and the issue raised in the aforesaid application under G.A. no.2346 of 2016. While deciding issue no.2 the question which crops up is whether the deceased had any authority to include the property comprised in premises no. 13/1, Promotesh Barua Sarani, Kolkata- 700019, in which she had a limited interest up to her life and by the present Will whether she can extend such limited interest beyond her life. While deciding this issue two things are to be taken into consideration

(1) Whether the Will in respect of which grant of probate has been prayed for is the last Will of the deceased or not? It is however, undisputed rather admitted by the plaintiff in their written notes filed before this Court that a Will dated 14.12.1997 appears to have been executed by the deceased Reba Mitra and probate has been granted. The relevant portion in paragraph 25 of the written notes where this fact has been narrated by the plaintiff is set out below:

"In reply, the counsel for the defendants submitted that probate of another Will dated 14.12.1997 of the deceased was granted. Against the said grant, the plaintiffs herein have filed an application for revocation for grant being Revocation case no. 156 of 2004 before the District Judge, Alipore. The learned District Judge was pleased to stay the operation of the grant. The interim order of said operation of grant is being extended from time to time and is continuing."

(ii) In a long drawn proceeding arising out of Testamentary Suit no. 88 of 1993 initiated at the instance of the deceased Reba Mitra before the Hon'ble High Court at Calcutta and probate was granted by an order dated 14th May, 1993 on the Will of her husband Kamal Kumar Mitra on the basis of his last Will and Testament dated 19th March, 1991 where the testator Kamal Kumar Mitra mentioned in paragraph 6 of the said Will "I could devised and bequeath my immovable property being premises no. 13/1, Promotesh Barua Sarani (a) to my wife Smt. Reba Mitra alone for her life (b) on the death of my said wife Smt. Reba Mitra the executors and trustees named and appointed herein will realize and collect the rents, issues and profits arising out of the said property being premises no. 13/1, Promotesh Barua Sarani and will distributed the said rents, issues and profits in the following manner ..."

In support of the contention raised on behalf of the propounder that probate Court cannot decide title to the property under Will following decisions have been relied on:

• Hem Nolini Judah -Vs. - Isaolyne Sarojbashini Bose reported in AIR 1962 SC 1471;

• Chiranjilal Shrilal Goenka -Vs. - Jasjit Singh reported in (1990) 2 SCC 507;

• Ghulam Qadir -Vs. - Special Tribunal reported in (2002) 1 SCC 33;

• Kanwarjit Singh Dhillon -vs. - Hardyal Singh Dhillon reported in (2007) 11 SCC 357;

• Krishna Kumar Birla -Vs. - Rejendra Singh Lodha reported in (2008) 4 SCC 300 and

• Goods of Abha Rani Sinha, in re, (2017) 4 CHN 114

(1) The defendants in support of their contention that even if this is the settled law that probate Court does not decide title but there are circumstances where the Hon'ble Apex Court has held that the Court, although, does not decide title but can definitely examine the probability of the deceased in including a property under the Will where prima facie the testatrix or testator is devoid of any right, title and interest particularly, that in such a situation why the Court should push unnecessarily an unwilling party to a complicated course of litigation for another round of fight the result whereof would be the same. The defendants relied on the following decisions:

• Jayamma -Vs. Maria Bai (dead by proposed LRS.) & Ors. reported in (2004) 7 SCC 459;

• Shoilesh Chandra Mustafi -Vs. Amal Chandra Mustafi reported in AIR 1958 Cal 701;

• Atulabala Dasi -Vs. - Nirupama Devi reported in AIR 1951 Cal 561;

• T. Arvandanam -Vs. - T.V. Satyapal reported in (1977) 4 SCC 467 and

• K. K. Modi -Vs. - K. N. Modi reported in (1998) 3 SCC 573

The issue has been dealt with by the Hon'ble Court in Ghulam Qadir (supra) as has been relied on by the plaintiffs. The decision also took note of its previous decision in the case of Chiranjilal Shrilal Goenka (supra) which is also relied on by the plaintiff in the present case. The decision in Ghulam Qadir (supra) the Hon'ble Apex Court held "If despite admitting the execution of the Will and issuance of the probate, a question arises as to its effect on the property of another person which is likely to be affected, nothing prevents the authorities under the J & K State Evacuees' (Administration of Property) Act to examine the Will or the probate to that extent. It is established in this case that when the Will was executed and registered the executant, namely, S had become the owner of the disputed property. The disputed property at the time of execution of the Will, admittedly, was vesting in the Custodian under the provisions of the Act." The Hon'ble Apex Court in paragraph 62 of the said decision further held "Accepting the plea of the appellant would amount to authorizing a person to execute a Will with respect to any property in which the executant had no right or interest including government property like the Secretariat or Official bungalows in favour of another person who in turn would rush to the Courts for the establishment of his title in the property, on the basis of conferment of title upon him by way of Will. Such a course is neither permissible nor legal and in fact, is against public policy."

The ratio decided in this case in fact, supports the contention raised by the defendants and does not help the plaintiff at all. In the given fact it is important for this Court not to overlook the property which has been included in the Will as the decision in the probate proceeding earlier arose in the High Court reached finality up to the Apex Court holding inter alia that Reba Mitra the executrix in the present probate proceeding had only limited interest till her death which cannot be illusticise by any means or by giving any colour to the said limited right.

The decision of Kanwarjit Singh Dhilan (supra) also does not help the plaintiff rather the same goes against them. In the said decision the appellant before the Supreme Court contended that the bequeath which was made in favour of the respondent was not genuine. Only a right of residence was given in favour of the widow of Late S. Kirpal Singh and his unmarried daughter who was the testator. Objections were filed by the appellant alleging that the Will was forged and fabricated. However, probate was granted to respondent no.1 by the High Court and thereafter, the matter came before the Supreme Court which also affirmed the order of the High Court granting probate in respect of the Will executed by Late S. Kirpal Singh. Subsequent to the grant of probability of the Will of Late S. Kirpal Singh in respect of the suit properties the appellant instituted a civil suit for declaration and injunction wherein appellant sought a declaration to the effect that the suit properties were Joint Hindu Family properties. A preliminary issue was framed by the learned Single Judge Jalandhar and dismissed the suit on a finding that once the probate was granted by a competent Probate Court, a Civil Court cannot have any jurisdiction to entertain the suit. The suit was dismissed. Revision was filed before the High Court against the said order of dismissal which was affirmed by the order impugned before the Hon'ble Apex Court. The Hon'ble Apex Court in paragraph 8 of the said decision held "In our view, the High Court as well as the Civil Court have acted illegally and with material irregularity in the exercise of their jurisdiction in dismissing the suit on the aforesaid preliminary issue by holding that after the probate having been granted by the competent Probate Court and affirmed by this Court, the Civil Court had no jurisdiction to proceed with the suit."

The Hon'ble Apex Court further held "According to the High Court, a decision of the Probate Court would be a judgment in rem which would not only be binding on the parties to the probate proceeding but would be binding on the whole world. Upon the aforesaid finding, the High Court had affirmed the order of the Civil Court holding that the suit must be dismissed in view of the fact that Probate Court had already granted probate in respect of the Will executed by Late S. Kirpal Singh relating to the suit properties. We are not in a position to agree with the views expressed by the High Court in the impugned order nor are we in agreement with the order passed by the Civil Court." Ultimately, the appeal before the Hon'ble Supreme Court was allowed. Therefore, this decision does not help the plaintiff.

To dwell on the proposition that it will be an absolute bar for the Probate Court to even verify the propriety of the testator to include a property on which he or she has no right, the next decision in the case if Krishna Kumar Birla (supra) has been relied on by the plaintiff and argued that a judgment rendered in a probate proceeding is a judgment in rem. But, its application is limited. A judgment rendered in a probate proceeding would not be determinative of the question of title. The decision says if a probate has been obtained by fraud or suppression of material fact, the same can be the subject matter of revocation of the grant in terms of Section 263 of the Succession Act, 1925. It is submitted on behalf of the plaintiff that application for grant of probate not only binds the parties before the Court but also binds all other persons in a proceeding arising out of the wills or claims under or connected therein.

Being a judgment in rem, a person, who is aggrieved thereby and having had no knowledge about the proceedings and proper citation having not been made, is entitled to file application for revocation of the probate on the available grounds. The decision is firstly distinguishable on fact and secondly, it decides a different proposition. The argument which has been made on the question of revocation does not help to succeed the present proceeding in support of grant of probate or Letters of Administration. The decision basically dealt with the word 'caveatable interest'. In the present proceeding leave was granted to file affidavit in support of the caveat and the caveators filed their affidavits in support of their caveat where they have brought an illustrated fact which reveals that the property in question which has been included by the deceased knowing fully well that she had a limited interest and further that the earlier proceedings and that the probate proceeding at her instance on the basis of her husband's Will through which she got life interest reached the highest Court of the land not once but twice. Where such limited interest unambiguously has been explained. This decision cannot help the plaintiff.

The last decision relied on by the plaintiff is the decision in the case of Abharani (supra) based on this decision it was submitted by the plaintiffs that a probate Court is to decide whether the Will in question was the last Will of the testator and whether the same was duly attested by at least two witnesses and whether the testator had mental capacity to execute the Will. So far the question of verification of the title of the deceased in respect of any of the property mentioned in the affidavit of assets whether genuine or not and whether such a question can be raised in any probate proceeding or not, there are divergence of opinion both of our Courts and also of the Hon'ble Apex Court and I have already pointed out the decision of the Supreme Court in the cases of Jayamma (supra), Shoilesh Chandra Mustafi (supra) and Abharani Dasi (supra) which have already been indicated earlier. Even question has been raised by the defendant that if the plaintiffs are allowed to obtain probate disregarding what has already been decided by the Hon'ble Apex Court in respect of self-same property in an earlier proceeding between the parties in respect of the Will of the husband of the present testator, this will tantamount to the abuse of the process of the Courts which is against and shall be opposed to public policy according to our Constitution. As rightly pointed out by the learned counsel for the defendant the ratio of the decision in the case of T. Arvandanam (supra) that when the issue has already been decided in a previously instituted proceeding, if the same is allowed to be reiterated again and again involving self-same question, it will be nothing but abusing due process of Court. The position has been made more clear in the decision of the Hon'ble Apex Court in K. K. Modi (supra) where the Hon'ble Apex Court deprecated the practice to file repeated case, although, issues have been decided earlier. In K. K. Modi (supra) the Hon'ble Apex Court held that the same issue cannot be re-agitated in another proceeding and if so done the same will be nothing but an abuse of the process of law. In this regard it is necessary to mention here the testamentary proceeding from which T.S. 88 of 1993 arose was initiated by the present testatrix to obtain probate on the Will of Late Kamal Kumar Mitra, her husband. In the said Testamentary Suit no. 88 of 1993 the Hon'ble Single Judge of this Court while dealing with an interlocutory application under G.A. No. 4873 of 1999 where Sharad Subramanyan and others were parties by an order dated 15th December, 1999, restrained the joint executors from dealing with and/or disposing of and/or encumbering and/or parting with possession or in any way dealing with any portion of the premises no.

13/1, Promotesh Barua Sarani, Kolkata- 700019 till disposal of the application. In that application it was claimed that it was an absolute estate and property of Reba Mitra who was one of the beneficiaries of the Will of her husband Kamal Kumar Mitra in respect of which the probate was sought for in the above mentioned suit no. 88 of 1993.

The Court observed that from the expressed provision of the Will Reba Mitra was only a life interest holder. By a subsequent order dated 16th February, 2000 the Hon'ble Single Bench in the said application being G.A. no. 4873 of 1999 appointed an Administrator pendente lite in place and stead of the executors on a monthly remuneration.

It appears that the Hon'ble Division Bench in an appeal being A.P.O.T no. 256 of 2000 filed by Sharad Subramanyan against the present defendants held and ordered:

"In view of un-controverted allegations, thus, in our opinion, the learned trial Judge rightly appointed Administration pendente lite. However, he went wrong in directing eviction of a tenant which was not within the purview of Indian Succession Act. The tenant can be evicted only in accordance with law. There cannot, however, be any doubt that Reba Mitra having a life interest, she could not confer a right upon a third party which would extend beyond her own interest. The Joint Administrators appointed by the Court may, therefore, take steps for eviction of the tenant. Subject to the aforementioned modifications in the impugned order, the appeal is dismissed with costs. Counsels fee assessed at Rs.200/- Gms."

Sharad Subramanyan filed an appeal against the said order before the Hon'ble Apex Court and the decision thereon has been reported in (2006) 8 SCC 1991 (Sharad Subramanyan -vs. - Soumi Majumdar). Paragraphs 5, 6, 7, 8, 18, 19 20, 21, 22, 23, 24 and 25 of the Hon'ble Apex Court's decision are set out below:

"5. On 21.10.1992, Reba Mitra executed a lease deed in respect of the Suit Property granting certain rights to the appellant. Reba Mitra died on 27.11.1998. The appellant produced a Will dated 21.10.1992 claiming that he had been granted certain rights under the Will. A second Will dated 14.5.1993 and a third Will dated 14.12.1997 were produced by the parties each of whom claimed that the Will in his/her favour was the genuine Will.

On 17.8.2001, Reba Mitra's Will dated 14.12.1997 was granted probate by the District Judge, Alipore. The appellant had been appointed as one of the Executors under the Will of Kamal Kumar Mitra. Soumi Mazumdar and Shantanu Bose (Respondent Nos. 1 and 2, respectively), the legatees under the said Will, by their letter dated 16.4.1999, called upon the appellant and Subir Kumar Deb, Joint Executors, to give assent to the legacy under the Will of Reba Mitra, hand over vacant possession of the first floor of the Suit Property and also distribute all the income of the estate in terms of the Will of the late Kamal Kumar Mitra. On 30.4.1999, Subir Kumar Deb addressed a letter stating that he was not in possession of any legal document and, therefore, he was unable to execute the estate according to the Will of Kamal Kumar Mitra. On 4.5.1999, the appellant wrote back alleging that Reba Mitra had demised the first floor of the Suit Property in the year 1992 in his favour. The appellant also stated that he was going through the various legal implications to examine the demand for disbursement of the income.

On 11.10.1999, the respondent filed an application before the High Court praying for discharge of the Joint Executors, to pay to the appellant the outstanding rent, issues and profits in respect of the Suit Property and also to hand over its possession. On 15.12.1999, a learned Single Judge of the High Court made an order restraining the Joint Executors from dealing with, disposing of and/or encumbering and/or parting with possession or in any way dealing with any portion of the Suit Property till the disposal of the application. On 16.2.2000, an interim relief application taken out was allowed by the learned Single Judge taking serious notice of the fact that the Executors had not filed an affidavit to controvert the allegations made against them. An appeal was filed by the appellant before the Division Bench, which resulted in the impugned judgment dated 28.6.2000, dismissing the appeal. Hence, the appeal before us.

Contentions

Learned Senior Counsel for the appellant Mr. P. Krishnamoorthy Iyer contended that, under Clause 6 of the Will of the late Kamal Kumar Mitra, the Suit Property was bequeathed to Reba Mitra for her life. Under the said Will, after the death of Reba Mitra the Executors and Trustees named in the Will were to collect the rent, issues and profits in the Suit Property, and disburse it to the persons named in Clause 6 of the Will. The contention of the learned Senior Counsel for the appellant is that Kamal Kumar Mitra had created a life interest in favour of his wife, Reba Mitra, which was in recognition and discharge of her right to maintenance from her husband. Counsel further contends that, by reason of sub-section (1) of Section 14 of the Hindu Succession Act, 1956 (hereinafter "the Act"), this limited interest blossomed into an absolute interest. Consequently, he claims that Reba Mitra became the absolute owner of the Suit Property. Further that, Reba Mitra, during her lifetime, absolutely owned the Suit Property and made dispositions by her Will in favour of the appellant, which were valid and justified. Under the Will, Reba Mitra had demised the first floor of the Suit Property in favour of the appellant, consequently the appellant was entitled to claim lease right in respect of the first floor of the Suit Property. The fact that the appellant was the Executor makes no difference, whatsoever, to the disposition validly made by Reba Mitra in her Will. As an Executor, the appellant had taken no step, in any manner inconsistent with being the Executor of Kamal Kumar Mitra's Will, consequently the learned counsel urged that, the High Court/learned Single Judge was wrong in discharging the Joint Executors and appointing an Administrator pendente lite.

Mr. Bhaskar P. Gupta, learned Senior Counsel for the respondents, rightly distinguished all these cases, as it was clearly proved therein, that the properties had been given to a female Hindu, either in recognition of or in lieu of her right to maintenance under the Shastric Hindu Law or under the Hindu Adoption and Maintenance Act, 1956. Consequently, these were instances where the dispositions of property, albeit as a limited estate, would blossom into a full interest by reason of sub-section (1) of Section 14 of the Act.

Learned Counsel further contended that, there is no absolute rule that all properties demised to a female Hindu were necessarily in recognition of or in lieu of her right to maintenance. It was possible, even after the Act came into force, to create a limited estate by reason of a gift or will. Such a situation would fall within the ambit of sub-section (2) of Section 14 of the Act as long as it was not in recognition of or in lieu of a right to maintenance under the Shastric Hindu Law or under a statute. Learned Senior Counsel relied on Section 30 of the Act, which recognises the right of a Hindu to dispose of self-acquired property by Will. Mr. Gupta relied on the judgment of this Court in Bhura and Ors. v. Kashi Ram , which was also a case of, limited estate conferred on a female Hindu by a Will. This Court held that, upon a proper construction of the Will, the bequeathal in favour of the female Hindu was clearly indicative of:

" the testator's intention of only creating a life interest in her and nothing more and the various expressions used therein are indicative of and are reconcilable only with the hypothesis that the testator was creating an estate in favour of (the female Hindu) only for her lifetime and not an absolute estate."

Thus, in view of the fact that there were no indications, either in the Will or externally, to indicate that the property had been given to the female Hindu in recognition of or in lieu of her right to maintenance, it was held that the situation fell within the ambit of sub-section

(2) of Section 14 of the Act and that the restricted life estate granted to the female Hindu could not be enlarged into an absolute estate. Learned counsel for the respondents relied strongly on this judgment and contended that there was no proposition of law that all dispositions of property made to a female Hindu were necessarily in recognition of her right to maintenance whether under the Shastric Hindu Law or under the statutory law. Unless the said fact was independently established to the satisfaction of the court, the grant of the property would be subject to the restrictions contained therein, either by way of a transfer, gift or testamentary disposition. Learned counsel also distinguished the three cases cited by the learned counsel for the appellant that in each, the circumstances clearly indicated that the testamentary disposition was in lieu of the right of maintenance of the female Hindu. We think that this contention is well merited and needs to be upheld.

Turning to the facts of the present case, we notice that not only was there no material to indicate to the High Court that the property was given to Reba Mitra in lieu of her right of maintenance, but such an argument was not even advanced before the Court. Even the impugned judgment of the High Court observes:

"It is not the case of the appellant that at the time when K.K. Mitra executed the Will, his wife was entitled to enforce her right of maintenance under the provisions of Hindu Adoptions and Maintenance Act or otherwise. She had been undisputedly living with her husband upon her husband's death till the Will was probated, she was enjoying the property as her own. Even in terms of the Will dt. 19.3.1991 she had a right of enjoyment in respect of the entire property."

The High Court then noticed Section 30 of the Act which empowers a Hindu possessed of any property to execute a Will; and confer a grant in favour of another either absolutely or to a limited extent; even to the extent of depriving his natural heirs from enjoying the estate left by him. We think that the High Court was right in taking this view. The High Court also took notice of the fact that there was no material on record from which it could be concluded that the disposition of life estate in favour of Reba Mitra in the Will of her husband, Kamal Kumar Mitra, was in lieu of or in recognition of her right of maintenance. Consequently, we agree with the finding of the High Court that Reba Mitra had only a limited right, namely, life interest in the Suit Property. Thus, she could not have created a long-term lease as she has purportedly done.

Discharge of Executor

Learned counsel for the respondents then referred to the provisions of the Indian Succession Act. He urged that under Section 301 of the Indian Succession Act: "The High Court may, on an application made to it, suspend, remove or discharge any private executor or administrator " and appoint another person in his place where continuance of the executor is detrimental to the estate of the deceased. Further it was pointed out that, under Section 317 of the Indian Succession Act, an executor had to make an inventory and file periodical accounts of the estate. It is contended that the appellant had failed to do so and was also liable to be removed under Section 301 of the Indian Succession Act. Finally, it is urged that the appellant as an executor had set up a claim in the estate, which was inconsistent with the deed of the executor and, therefore, he was unfit to function as an executor; the High Court had rightly discharged him from his office and appointed an Administrator pendente lite.

Conclusion

From the factual circumstances, while the High Court's appointment of an Administrator pendente lite appears to be correct, we need not finally decide as to whether the appellant was unfit to act as an executor of Kamal Kumar Mitra's Will. We are cognizant of the fact that the High court is still seized of the matter and the order passed is only an interlocutory order based on prima facie considerations. In our view, there was sufficient justification for the High Court to make the order for appointment of the Administrator pendente lite to protect the estate during the pendency of the petition before it. The question as to whether the appellant as the executor has breached his fiduciary duty, can only be determined at the end of the trial. In our view, therefore, the impugned judgment of the High Court is not liable to be interfered with.

We see no merit in the appeal, which is hereby dismissed. No costs." Another round of litigation again started in respect of the self- same property in matter no. 88 of 1993 and while dealing with the applications being G.A. no. 533 of 2008 and G.A. no. 3908 of 2007 a Single Bench of this Court passed an order on March 19, 2008 which was set out below:

"The application for condonation of delay has been filed as an afterthought and, ostensibly, by way of abundant caution. The petitioner had proceeded before that in the conviction that there was no delay on its part and, consequently, there was no need to proffer any explanation as to why the prayer for revocation of the grant of probate was not made earlier. The petitioner is a company, of which brothers Subramanyan - Sharad and Vasant

- appear to be the effective, if not the only, shareholders. No large corporate or business activity of the company is attempted to be demonstrated and it appears safe to conclude that its principal interest is in its alleged leasehold rights in respect of the first floor of premises no. 13/1, Promotesh Barua Sarani, Calcutta - 700019 that affords its shareholders to keep company of distinguished occupants in a plush upmarket part of town. The petitioner claims to be a lessee of the premises for 99 years, obtained under a deed of October 21, 1992 executed by Reba Mitra who as widow would have been the only intestate heir of testator Kamal Kumar Mitra. The petitioner claims that the testator, in fact, died intestate whereupon the entire estate devolved upon his widow who had authority to grant the lease in the petitioner's favour. The petitioner relies on Reba Mitra having executed and registered a Will in 1992 by which she appointed Sharad Subramanyan as one of the executors and wherein she recorded having leased out, as owner, the said premises to the petitioner. The petitioner portrays a picture of having been unaware of any Will of Kamal Kumar Mitra having been discovered subsequent to the execution of the lease and of such Will having been probated in common form. The petitioner asserts that it was only upon letters of August 28, 2007 and September 5, 2007 being received by it from the administrator pendente lite to the estate of Kamal Mitra that the petitioner came to know of Kamal Mitra's Will. According to the petitioner, subsequent discovery by the petitioner revealed that Kamal Mitra was said to have executed a Will on March 19, 1991, about six months prior to his death in September of that year; of the probate being granted of such Will on May 4, 1993; and, of the fraudulent conduct of the propounder in not citing the petitioner. The petitioner says that as transferee of a property by the intestate heir, the petitioner had sufficient caveatable under Section 283 of the Indian Succession Act, 1925 to be cited. The petitioner insists that it is, in any event, entitled to maintain an application for revocation of the grant under Section 263 of the Act. The petitioner argues that a valuable right acquired by it has been sought to be set at naught behind its back and it is possible that the entire exercise has been engineered to denude the petitioner of its rights under the lease without the authenticity of the Will being established in the petitioner's presence. As to the petitioner's knowledge and the accrual of its right to apply, the petitioner cites the first letter that it received from the administrator pendente lite and suggests that the petition for revocation of the grant has been made well within the time afforded to such an applicant under the residuary Article 137 of the Schedule to the Limitation Act, 1963. The petitioner says that it is only upon the litany of charges levelled against it in the affidavit-in-opposition filed by the propounders of, or the beneficiaries under, the Will that the petitioner thought it fit to bring an application under Section 5 of the Limitation Act in the event the court felt that the petitioner was required to explain the apparent delay between the grant of probate in the summer of 1993 and its application for revocation thereof in the autumn of 2007. The legatees suggest that the present endeavour of the petitioner is a scandalous abuse of process to give a false impression and resurrect a lis that had been concluded in their favour upon the Supreme Court judgment reported at (2006) 8 SCC 91 (Sharad Subramanyan v. Soumi Mazumdar). The legatees assail the petitioner's conduct, its feigned naive case brought to court and, most prejudicially, the petitioner's access to all documents that had been seen, deciphered and interpreted in the three earlier rounds before the trial court, the Division Bench and the Supreme Court. The petitioner, emphasise the legatees, is the alter ego of Sharad Subramanyan who had crudely devised a second round of skirmish after having failed in Calcutta and Delhi to cling on to his real estate windfall in Ballygunge. It appears from the Will of Kamal Mitra that the widow had only a life interest in the immovable property that formed the major part of Kamal Mitra's estate and it was to pass on to the named heirs in the testator's father's branch of the family. There is an attractive case that the petitioner brings as to its right to question the grant on it not being cited but the resolution of the present matter probably lies elsewhere than in seeking the petitioner's locus to assail the grant. The legatees' indignation at the Subramanyan's conduct is understandable. They claim that whether it is Sharad or Vasant or the petitioner, the court has to view all three as one entity which has been deviously presented in a dressed-up distinction. The legatees say that Sharad had fought tooth and nail to dislodge Kamal Mitra's Will and failed. In Sharad's knowledge, the legatees claim, the petitioner derived knowledge and it would be unfair to subject the legatees to a fresh round of litigation on the same substance. The Supreme Court papers have been handed up by the legatees to show that the deed of lease of October 21, 1992 formed part of the papers and that apart from Sharad claiming a right to challenge Kamal Mitra's Will as one of the executors of the widow's Will, Sharad had espoused his company's - the present petitioner's - cause in the previous round of proceedings. According to the legatees, to recognise the petitioner's independent right to seek revocation of the grant of probate of Kamal Mitra's Will would now be a travesty of justice and the reopening of questions that have been conclusively answered in the legatees' favour by superior fora. The prayer for condonation of delay is challenged both for the unexplained period leading up to the issuance of the letter of August 28, 2007 by the administrator pendente lite and in the petitioner's attempt at reopening a challenge that had been scoffed at in the earlier proceedings. The substance of the legatees' argument is that Sharad cannot now be permitted to don the petitioner's hat to launch the same challenge that he was unsuccessful at in the previous round. The legatees insist that Sharad and the petitioner is but the same person and refer to a document that the petitioner has relied upon to show that notwithstanding the petitioner's feigned ignorance of all matters relating to Kamal Mitra's Will prior to receipt of the first letter issued by the administrator pendente lite, in the petitioner's acknowledgement in a declaration furnished to a statutory authority that Sharad was one of its key personnel there is admission of Sharad and the petitioner company being one and the same. For, a corporate person as the petitioner needs a controlling mind and Sharad has been admitted by the petitioner to have been its controlling mind together with brother Vasant. The document that the legatees refer to is a declaration in Form 23AC that the petitioner was required to file pursuant to Section 220 of the Companies Act, 1956. The balance sheet and annual accounts of the petitioner company for the year ended March 31, 2006 appears to have been appended to such form. Three principal heads of operating and administrative expenditure appear in one of the schedules to the accounts. For the year ended March 31, 2006, the petitioner claims to have expended Rs.1,92,000/- on account of directors' salary; Rs.1,92,000/- on account of managerial salary and Rs.2,00,000/- on account of salaries and wages including bonus. These three heads make up nearly 40 per cent of the annual operating and administrative expenditure of Rs.13,92,000/-. At the foot of the schedules to the annual accounts is the disclosure that is now required to be made by a company. Vasant and Sharad Subramanyan are shown as the key management personnel of the petitioner. Some murmurs have been made on behalf of the petitioner that there are differences between Vasant and Sharad and that Sharad was the majority shareholder (by one share or thereabouts) in the petitioner company till or about the year 2002. The legatees have also relied on the deed of October 21, 1992 and show therefrom that at the time of registration of the document, Sharad had presented it on behalf of the petitioner. The legatees also question as to how the petitioner could have obtained a copy of the certified copy of the grant of probate and the documents that appear between pages 28 and 33 of the petition. These documents, the legatees say, have been bodily lifted from the papers used in the earlier round of litigation and, the prejudice aspect aside, it would go to show that there is no real distinction between Sharad and the petitioner. The petitioner has relied on a judgment reported at 13 Bom LR 38 (Digambar Keshav Shrotri v. Narayan Vithal Ashtekar) for the proposition that a transferee of a property obtained from an heir in intestacy may maintain an application for revocation of the grant. What is held by the Full Bench of the Bombay High Court in such decision is that there are compulsory citations and discretionary citations. It is only upon failure to cite a person who was compulsorily required to be cited, that the grant would be void but the failure to cite other persons would not be fatal. The decision reported at AIR 1932 Cal 734 (Nabin Chandra Guha v. Nibaran Chandra Biswas & ors.) is next cited by the petitioner where the court held that a transferee of property from an intestate heir may oppose the grant of probate or letters of administration. The decisions reported at ILR 4 Cal 360 (Komollochun Dutt & ors. v. Nilruttun Mundle) and ILR 6 Cal 460 (Nobeen Chunder Sil & ors. v. Bhobosoonduri Dabee) are pressed into service by the petitioner to assert the petitioner's locus standi to maintain these proceedings and to seek revocation of the grant. The Komollochun Dutt case was rendered when the procedure as to the grant of probate or letters of administration had not been settled. This Court opined that if a person was interested by assignment in the estate of the deceased, and if there was no Will he would have a good title, such person could apply to revoke the probate. In the Nobeen Chunder Sil case this Court was of the view that the mortgagee-appellants would stand substantially in the same position as the plaintiff in the Komollochun Dutt case as the mortgageeappellants were purchasers pro tanto and assignees of the immovable estate of the deceased. The court also found that if such a person is recognised to be entitled to apply to revoke the probate that has issued, it would follow that such person may also enter caveat and oppose the grant. But the locus standi of the petitioner to seek revocation of the probate is a matter that needs to be assessed after the petitioner has a look in. The petitioner refers to the judgment of a Single Judge of this Court reported at 2003 AIHC 2148 (Jyotsna Rajgarhia v. Dipak Kumar Himatsingka & anr.). At paragraph 24 of the report it has been held that as to whether an application for revocation of grant is barred by time has to be judged on the facts obtaining in the matter. The bar of limitation may not be applied in strict sense when it leads to an absurd result particularly in a case where probate has been obtained without citing a person entitled to citation and when the fact of the probate is kept concealed for a long time. The judgment reported at 1990 (Supp) SCC 89 (I) (L/Naik Mahabir Singh v. Chief of Army Staff) is placed for the proposition that the court may accept even an oral prayer for condonation of delay. That in appropriate cases an oral prayer for condonation may be received is not open to dispute, but in the context of a written application having subsequently been made, the point loses all significance in the present case. The petitioner seeks to compare Article 137 of the Schedule to the Limitation Act to Article 58 thereof. The petitioner submits that whereas in Article 137, the expression is, "where the right to apply accrues", in Article 58 the expression is, "where the right to sue first accrues". The petitioner submits that courts generally construe the grey area, if there is any in the matter, in favour of the party applying for condonation so that the merits can be addressed and the assertion of a right is not left stillborn. The petitioner relies on the judgment reported at (2004) 2 SCC 747 (Union of India v. West Coast Paper Mills Ltd.) and places paragraphs 21, 26 and 41 thereof: "21. A distinction furthermore, which is required to be noticed is that whereas in terms of Article 58 the period of three years is to be counted from the date when "the right to sue first accrues", in terms of Article 113 thereof, the period of limitation would be counted from the date "when the right to sue accrues". The distinction between Article 58 and Article 113 is, thus, apparent inasmuch as the right to sue may accrue to a suitor in a given case at different points of time and, thus, whereas in terms of Article 58 the period of limitation would be reckoned from the date on which the cause of action arose first, in the latter the period of limitation would be differently computed depending upon the last day when the cause of action therefor arose." "26. Despite the rigours of Section 3 of the Limitation Act, 1963, the provisions thereof are required to be construed in a broad-based and liberal manner. We need not refer to the decisions of this Court in the matter of condoning delay in filing appeal or application in exercise of its power under Section 5 of the Limitation Act." "41. In the aforementioned cases, this Court failed to take into consideration that once an appeal is filed before this Court and the same is entertained, the judgment of the High Court or the Tribunal is in jeopardy. The subject-matter of the lis unless determined by the last court, cannot be said to have attained finality. Grant of stay of operation of the judgment may not be of much relevance once this Court grants special leave and decides to hear the matter on merit." It appears that the Supreme Court recognises that a liberal view of the matter is to be taken and if it is found that the right was in flux, the court would not construe that the right to sue or apply arose when such right remained confused or undetermined. This would support the petitioner's argument that the grey area would belong to the party applying for condonation. Several cases have been placed for the proposition that the knowledge of a shareholder or even a director would not amount to the knowledge of the company in which such person holds shares or of which he is a director. The petitioner asserts that the knowledge of a shareholder or a director will not bind the company concerned unless a duty was imposed on the shareholder or the director to inform the company. The judgment reported at (1904) 2 Ch 608 (Young v. David Payne & Co., Limited) is relied upon first for the purpose. A director of a company was also interested in another company. The second company proposed to borrow money for a purpose outside the scope of its business objects and induced the first company to advance the money against security. The money was applied in the manner proposed and no other director of the first company, except the person who was the director of the second company, knew how the money was to be applied and that such application was ultra vires the second company's objects. It was held by the Court of Appeal that such director's knowledge ought not to be imputed to the first company as the director owed no duty to the first company either to receive or to disclose information as to how the borrowed money was to be applied. In the next case to the same effect, an earlier decision reported at (1902) 1 Ch 507 (In re Fenwick, Stobart & Co. Ltd) is placed by the petitioner where Buckley, J. held that where a man holds a double character, it is not necessary that he should write a letter from himself in one character to himself to inform himself in another character. The substance of the principle is that it would depend upon the circumstances relating to a particular case as to whether knowledge in one capacity would amount to knowledge in the other. In the decision reported at (1896) 2 Ch 743 (In re Hampshire Land Company), Vaughan Williams, J. raised the following question: "Where is the line to be drawn, or what is the test to be applied in order to say whether or not in each case the knowledge of the common officer is the knowledge of each company employing him?" His Lordship's answer to the question was that unless the common officer had some duty imposed upon him to communicate that knowledge to the other company, and had some duty imposed on him by the company which is alleged to be affected by the notice to receive the notice, knowledge of the one company would not be imputed to the other company only by virtue of the officer with knowledge being common to both companies. The petitioner submits that it was not necessary for it to seek condonation of any delay as there has been no delay on its part to bring this action. The petitioner suggests that even if the petitioner be affixed with knowledge of the earlier round of challenge, the time covered by Article 137 would begin to run when there is an immediate cause. The immediate cause that the petitioner here refers to is the letter of August 28, 2007 issued by the administrator pendente lite to the estate of Kamal Mitra. The petitioner relies on the judgment reported at AIR 1993 SC 136 (Balwant Singh v. Gurbachan Singh) and places paragraph 5 thereof where the Supreme Court recognised that the time for applying in that particular case would begin to run only when there was actual threat of dispossession. In that case, in execution of a decree for pre-emption on July 13, 1963 symbolic possession of certain land was made over to the degree-holder. A declaratory suit was filed by the judgment-debtor was decreed but no relief of injunction was granted as the judgment-debtor continued to remain in possession of the land. A suit for partition was filed by the original decree-holder in 1973 claiming not only the land on which he had obtained actual physical possession but also on the land on which he had been granted symbolic possession. On the objection petition under Sections 47, 151 and 152 of the Code of Civil Procedure, the executing court rectified the mistake and directed restitution of the land. The supreme Court held, in such context, that the judgment-debtor's right to apply commenced when there was actual threat of dispossession, that is on the decree-holder taking proceedings for partition in 1973 and not from the date of execution of the pre-emption decree in 1963. The judgment next placed by the petitioner is one reported at (1999) 4 SCC 458 (Electronics Corporation of India Limited v. Secretary Revenue Department, Government of Andhra Pradesh) where the Supreme Court construed a distinction between the company and its hundred per cent share holder. From the days of Salomen v. Salomen, such distinction has remained and except in exceptional circumstances and for greater cause, a one-man company is not equated with the company. But it does not necessarily follow that the knowledge of the only shareholder of a one-man company will never be the knowledge of the company. The legatees refer to the Supreme Court judgment rendered in the earlier round reported at AIR 2006 SC 1993 (Sharad Subramanyan v. Soumi Mazumdar) and particularly rely on paragraphs 3, 5 and 6 thereof: "3. Kamal Kumar Mitra entered into an agreement dated 22-5-1988 with T.K. Ramasubramanyan (father of Sharad Subramanyan, hereinafter "the appellant") by which a tenancy was created in respect of the ground floor flat of certain premises situated at 13/1, Promothesh Barua Sarani, Kolkata (hereinafter "the suit property") at a monthly rental of Rs.5000. A further agreement dated 1-11-1988 was made between Kamal Kumar Mitra and the present appellant Sharad Subramanyan for providing to the tenants the fittings and fixtures on the ground floor at a monthly charge of Rs.750. On 24-2-1989, there was a third agreement between Kamal Kumar Mitra and the appellant Sharad Subramanyan and a fourth on 28-4-1989, by which the former agreed to lease the whole of terrace of the existing construction of the suit property to enable the appellant to construct at his cost an additional floor. The demise was for a period of twenty-one years commencing from 1-4-1989 with a renewal clause for a further period of twenty-one years after expiry of every period of twenty-one years. Though the agreement created a lease for such a long period with a renewal clause, it was not registered." "5. On 21-10-1992, Reba Mitra executed a lease deed in respect of the suit property granting certain rights to the appellant. Reba Mitra died on 27-11-1998. The appellant produced a will dated 21-10-1992 claiming that he had been granted certain rights under the will. A second will dated 14- 5-1993 and a third will dated 14-12-1997 were produced by the parties each of whom claimed that the will in his/her favour was the genuine will. "6. On 17-8-2001, Reba Mitra's will dated 14-12-1997 was granted probate by the District Judge, Alipore. The appellant had been appointed as one of the executors under the will of Kamal Kumar Mitra. Soumi Mazumdar and Shantanu Bose (Respondents 1 and 2, respectively), the legatees under the said will, by their letter dated 16-4-1999, called upon the appellant and Subir Kumar Deb, joint executors, to give assent to the legacy under the will of Reba Mitra, hand over vacant possession of the first floor of the suit property and also distribute all the income of the estate in terms of the will of the late Kamal Kumar Mitra. On 30-4-1999, Subir Kumar Deb addressed a letter stating that he was not in possession of any legal document and, therefore, he was unable to execute the estate according to the will of Kamal Kumar Mitra. On 4-5-1999, the appellant wrote back alleging that Reba Mitra had demised the first floor of the suit property in the year 1992 in his favour. The appellant also stated that he was going through the various legal implications to examine the demand for disbursement of the income." The legatees seek to rob the petitioner's case of most of its merit by referring to the reliefs sought. It is not that the petitioner seeks an injunction on the dispossession that the administrator pendente lite threatens it with; the petitioner seeks revocation of the grant. The legatees attempt to distinguish the two possible causes of action and assert that if it is the latter, the time under Article 137 would only begin to run when the threat is received, but if it is the former the time begins to run from the moment of the grant and an attempt at explanation has to be made for the period beginning the moment following the grant and leading up to the receipt of the first letter issued by the administrator pendente lite. The legatees say that the petitioner has no right to ward off the threat conveyed by the letter issued by the administrator pendente lite without first seeking revocation of the grant. The legatees implore that the court should not see Sharad and the petitioner as two distinct entities and, if necessary, should apply the doctrine of lifting the corporate veil to assess as to whether Sharad is the controlling mind lurking behind the veil. The legatees go back in time in referring to the judgment reported at AIR 1965 SC 40 (Tata Engineering and Locomotive Co. Limited v. State of Bihar) and trace how the Supreme Court has carried the principle much further in recent times. The judgment reported at (2001) 7 SCC 1 (Steel Authority of India Limited v. National Union Water Front Workers) is placed and the view of Krishna Iyer, J. quoted at paragraph 115 of the report is placed. In similar vein, the judgments reported at (2003) 6 SCC 1 (Kapila Hingorani v. State of Bihar); (2006) 7 SCC 756 (Jai Narain Parasurampuria v. Pushpa Devi Sharaf) and (2003) 7 SCC 749 (Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble) are referred to. What emerges from the discussions in the various judgments is that it is imperative for the court to do justice and for such purpose disregard the structure of an entity to garner the meat of the matter. The concept of a company and the jurisprudence that follows it was alien in the Indian context. The sanctity of the structure attached to a corporate entity in English law may not always be applicable in the Indian context. As much as companies have been set up in India to carry any business venture, the corporate facade has been put up time and again to shield the humans behind it. Corporate jurisprudence is no longer in its initial stage for it to be regarded as a bride for the veil to be removed. Courts are more prone now than ever before to disregard the veil and go straight at the controlling mind without stopping to question the propriety or necessity of piercing the veil. In the synopsis relating to the petition for special leave to appeal before the Supreme Court filed by Sharad, there is more than passing reference to the lease of October 21, 1992 said to have been created by Reba Mitra in favour of the petitioner. At pages F and G of the synopsis, Sharad asserted that he received a letter of April 16, 1999 from the legatees that he was in illegal possession of the first floor of premises no. 13/1, Promotesh Barua Sarani to which he replied that he "was not in possession of the first floor of the said premises as alleged." In such assertion Sharad did not deny that he was not in possession but merely denied that he was in possession as alleged. It would not be outlandish to infer that what Sharad left unsaid was that he may have physically been in possession, but such possession was by virtue of his association with the petitioner which was in de jure possession of the first floor of the premises. The special leave petition papers contain an affidavit affirmed by Sharad on February 8, 2000. In such affidavit, in response to a petition for removal of the joint executors on the allegations of misappropriation of funds and usurpation of the estate, Sharad insisted that there was no estate of Kamal Mitra in existence as all his assets had devolved upon his widow as legatee on the assent given by her as the first executrix. In such affidavit Sharad referred to the deed of October 21, 1992 by which a lease was granted in favour of the petitioner and the copy of the registered deed was appended to his affidavit. In the order passed on the application for removal of the joint executors, a learned Single Judge appointed an administrator pendente lite and also directed eviction of one of the occupants at premises no. 13/1, Promotesh Barua Sarani. Sharad's appeal failed except that the appellate court held that no occupier could be evicted except under due process of law. It appears that the entire basis of Sharad's argument was that notwithstanding Kamal Mitra's Will, it was his widow on whom his entire estate devolved and the widow was free to deal with the estate that had become her own. It was such contention that did not find favour with this Court in the two stages here and with the Supreme Court in the appeal resulting from the special leave petition. It is necessary to go into such aspect to assess whether it would be appropriate to permit the same issue to be raised again. For, if the delay in the petitioner applying for revocation of the probate is condoned, and the petitioner's apparent right to seek revocation is recognised, the entire process that culminated in the conclusion of the lis by the Supreme Court order would be undone and reopened for fresh adjudication. The matter is not, as the petitioner simplifies and puts it, of the court being liberal in the matter of condonation of delay to allow a right to be canvassed. Equally, the principal issue is not, as the legatees' suggest, to affix the petitioner with the knowledge that Sharad had and to consequently find the petitioner's explanation of the delay to be unmeritorious. It is the recognition of the fact that a settled position would be undone if by an apparently gracious act of condonation of delay, an undesirable second round of the same challenge is unleashed. Even if the petitioner is permitted to take the challenge forward, it can progress no more upon it being recognised that the only possible issue has been conclusively pronounced upon by the Supreme Court, albeit in proceedings where the petitioner was not a eo nominee party. In assessing the impact of Sharad's knowledge on the company, the first point of note is that neither of the Subramanyans had any conflict of interest with the petitioner. It is also of singular importance that the effect of what the petitioner now seeks to establish is, willy-nilly, for the present benefit of Sharad or Vasant in course of their association with the petitioner. It is not a point of technicality on which a petitioner is denied justice by not being permitted to assert a right on grounds of delay, it is the warding off of a technical argument of distinction between a corporate entity and one of the principal persons in control thereof to avoid abuse of process. Sharad may not have had any legal duty to inform the company (if the company was any more different from himself) upon discovering, although in his capacity as executor, that Reba Mitra had acquired no right to the estate to transfer it to the petitioner. Yet it was so overwhelming a moral duty that a director of a company in Sharad's place had, even if he were not its controlling shareholder, to inform the company of its imminent loss of its valuable asset, that the fine distinction between a legal duty and a moral duty vanishes. That Sharad had produced and relied upon the petitioner's lease to assert that notwithstanding Kamal Mitra's Will his estate passed to his widow, would also show that Sharad was aware that he was also fighting his company's cause. To ignore all that has gone on before and to accept the petitioner's simple case and apparent innocence would lead to gross injustice and undoing the finality that is attached to the result on the substance of the dispute following the Supreme Court verdict. The result is that the petitioner's application for condonation of delay fails as the petitioner is deemed to have had notice for a period much prior to the receipt of the administrator pendente lite's first letter of August 28, 2007 which the petitioner has chosen to ignore for want of any plausible explanation. As a consequence, the petitioner's application for revocation of the grant is not taken on board, but even if it were it would have to be dismissed for the only issue therein having been decided in favour of the legatees in the earlier proceedings. The petitioner will pay costs assessed at 2000 GMs."

This litigation was started by one Taxation Services Syndicate Private Ltd who prayed for revocation of the grant of probate after a delay of several years, that is, while the probate was granted in favour of Reba Mitra on 14.05.1993 and the revocation application so made in 2007. Such application was numbered as G.A. no. 3908 of 2007.

The connected application being G.A. no. 533 of 2008 was filed praying for condonation of delay. The application for revocation and condonation of delay were dismissed with cost assessed at Rs. 2000/- Gms. While rejecting the condonation of delay and the revocation of grant the Hon'ble Single Bench of the High Court at Calcutta held:

Set out page 80 to 86.

"The legatees refer to the Supreme Court judgment rendered in the earlier round reported at AIR 2006 SC 1993 (Sharad Subramanyan v. Soumi Mazumdar) and particularly rely on paragraphs 3, 5 and 6 thereof:

"3. Kamal Kumar Mitra entered into an agreement dated 22-5-1988 with T.K. Ramasubramanyan (father of Sharad Subramanyan, hereinafter "the appellant") by which a tenancy was created in respect of the ground floor flat of certain premises situated at 13/1, Promothesh Barua Sarani, Kolkata (hereinafter "the suit property") at a monthly rental of Rs.5000. A further agreement dated 1-11-1988 was made between Kamal Kumar Mitra and the present appellant Sharad Subramanyan for providing to the tenants the fittings and fixtures on the ground floor at a monthly charge of Rs.750. On 24-2-1989, there was a third agreement between Kamal Kumar Mitra and the appellant Sharad Subramanyan and a fourth on 28-4-1989, by which the former agreed to lease the whole of terrace of the existing construction of the suit property to enable the appellant to construct at his cost an additional floor. The demise was for a period of twenty-one years commencing from 1-4- 1989 with a renewal clause for a further period of twenty-one years after expiry of every period of twenty-one years. Though the agreement created a lease for such a long period with a renewal clause, it was not registered." "5. On 21-10-1992, Reba Mitra executed a lease deed in respect of the suit property granting certain rights to the appellant. Reba Mitra died on 27-11-1998. The appellant produced a will dated 21-10-1992 claiming that he had been granted certain rights under the will. A second will dated 14- 5-1993 and a third will dated 14-12-1997 were produced by the parties each of whom claimed that the will in his/her favour was the genuine will. "6. On 17-8-2001, Reba Mitra's will dated 14-12-1997 was granted probate by the District Judge, Alipore. The appellant had been appointed as one of the executors under the will of Kamal Kumar Mitra. Soumi Mazumdar and Shantanu Bose (Respondents 1 and 2, respectively), the legatees under the said will, by their letter dated 16-4-1999, called upon the appellant and Subir Kumar Deb, joint executors, to give assent to the legacy under the will of Reba Mitra, hand over vacant possession of the first floor of the suit property and also distribute all the income of the estate in terms of the will of the late Kamal Kumar Mitra. On 30-4-1999, Subir Kumar Deb addressed a letter stating that he was not in possession of any legal document and, therefore, he was unable to execute the estate according to the will of Kamal Kumar Mitra. On 4-5-1999, the appellant wrote back alleging that Reba Mitra had demised the first floor of the suit property in the year 1992 in his favour. The appellant also stated that he was going through the various legal implications to examine the demand for disbursement of the income." The legatees seek to rob the petitioner's case of most of its merit by referring to the reliefs sought. It is not that the petitioner seeks an injunction on the dispossession that the administrator pendente lite threatens it with; the petitioner seeks revocation of the grant. The legatees attempt to distinguish the two possible causes of action and assert that if it is the latter, the time under Article 137 would only begin to run when the threat is received, but if it is the former the time begins to run from the moment of the grant and an attempt at explanation has to be made for the period beginning the moment following the grant and leading up to the receipt of the first letter issued by the administrator pendente lite. The legatees say that the petitioner has no right to ward off the threat conveyed by the letter issued by the administrator pendente lite without first seeking revocation of the grant. The legatees implore that the court should not see Sharad and the petitioner as two distinct entities and, if necessary, should apply the doctrine of lifting the corporate veil to assess as to whether Sharad is the controlling mind lurking behind the veil. The legatees go back in time in referring to the judgment reported at AIR 1965 SC 40 (Tata Engineering and Locomotive Co. Limited v. State of Bihar) and trace how the Supreme Court has carried the principle much further in recent times. The judgment reported at (2001) 7 SCC 1 (Steel Authority of India Limited v. National Union Water Front Workers) is placed and the view of Krishna Iyer, J. quoted at paragraph 115 of the report is placed. In similar vein, the judgments reported at (2003) 6 SCC 1 (Kapila Hingorani v. State of Bihar); (2006) 7 SCC 756 (Jai Narain Parasurampuria v. Pushpa Devi Sharaf) and (2003) 7 SCC 749 (Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble) are referred to. What emerges from the discussions in the various judgments is that it is imperative for the court to do justice and for such purpose disregard the structure of an entity to garner the meat of the matter. The concept of a company and the jurisprudence that follows it was alien in the Indian context. The sanctity of the structure attached to a corporate entity in English law may not always be applicable in the Indian context. As much as companies have been set up in India to carry any business venture, the corporate facade has been put up time and again to shield the humans behind it. Corporate jurisprudence is no longer in its initial stage for it to be regarded as a bride for the veil to be removed. Courts are more prone now than ever before to disregard the veil and go straight at the controlling mind without stopping to question the propriety or necessity of piercing the veil. In the synopsis relating to the petition for special leave to appeal before the Supreme Court filed by Sharad, there is more than passing reference to the lease of October 21, 1992 said to have been created by Reba Mitra in favour of the petitioner. At pages F and G of the synopsis, Sharad asserted that he received a letter of April 16, 1999 from the legatees that he was in illegal possession of the first floor of premises no. 13/1, Promotesh Barua Sarani to which he replied that he "was not in possession of the first floor of the said premises as alleged." In such assertion Sharad did not deny that he was not in possession but merely denied that he was in possession as alleged. It would not be outlandish to infer that what Sharad left unsaid was that he may have physically been in possession, but such possession was by virtue of his association with the petitioner which was in de jure possession of the first floor of the premises. The special leave petition papers contain an affidavit affirmed by Sharad on February 8, 2000. In such affidavit, in response to a petition for removal of the joint executors on the allegations of misappropriation of funds and usurpation of the estate, Sharad insisted that there was no estate of Kamal Mitra in existence as all his assets had devolved upon his widow as legatee on the assent given by her as the first executrix. In such affidavit Sharad referred to the deed of October 21, 1992 by which a lease was granted in favour of the petitioner and the copy of the registered deed was appended to his affidavit. In the order passed on the application for removal of the joint executors, a learned Single Judge appointed an administrator pendente lite and also directed eviction of one of the occupants at premises no. 13/1, Promotesh Barua Sarani. Sharad's appeal failed except that the appellate court held that no occupier could be evicted except under due process of law. It appears that the entire basis of Sharad's argument was that notwithstanding Kamal Mitra's Will, it was his widow on whom his entire estate devolved and the widow was free to deal with the estate that had become her own. It was such contention that did not find favour with this Court in the two stages here and with the Supreme Court in the appeal resulting from the special leave petition. It is necessary to go into such aspect to assess whether it would be appropriate to permit the same issue to be raised again. For, if the delay in the petitioner applying for revocation of the probate is condoned, and the petitioner's apparent right to seek revocation is recognised, the entire process that culminated in the conclusion of the lis by the Supreme Court order would be undone and reopened for fresh adjudication. The matter is not, as the petitioner simplifies and puts it, of the court being liberal in the matter of condonation of delay to allow a right to be canvassed. Equally, the principal issue is not, as the legatees' suggest, to affix the petitioner with the knowledge that Sharad had and to consequently find the petitioner's explanation of the delay to be unmeritorious. It is the recognition of the fact that a settled position would be undone if by an apparently gracious act of condonation of delay, an undesirable second round of the same challenge is unleashed. Even if the petitioner is permitted to take the challenge forward, it can progress no more upon it being recognised that the only possible issue has been conclusively pronounced upon by the Supreme Court, albeit in proceedings where the petitioner was not a eo nominee party. In assessing the impact of Sharad's knowledge on the company, the first point of note is that neither of the Subramanyans had any conflict of interest with the petitioner. It is also of singular importance that the effect of what the petitioner now seeks to establish is, willy-nilly, for the present benefit of Sharad or Vasant in course of their association with the petitioner. It is not a point of technicality on which a petitioner is denied justice by not being permitted to assert a right on grounds of delay, it is the warding off of a technical argument of distinction between a corporate entity and one of the principal persons in control thereof to avoid abuse of process. Sharad may not have had any legal duty to inform the company (if the company was any more different from himself) upon discovering, although in his capacity as executor, that Reba Mitra had acquired no right to the estate to transfer it to the petitioner. Yet it was so overwhelming a moral duty that a director of a company in Sharad's place had, even if he were not its controlling shareholder, to inform the company of its imminent loss of its valuable asset, that the fine distinction between a legal duty and a moral duty vanishes. That Sharad had produced and relied upon the petitioner's lease to assert that notwithstanding Kamal Mitra's Will his estate passed to his widow, would also show that Sharad was aware that he was also fighting his company's cause. To ignore all that has gone on before and to accept the petitioner's simple case and apparent innocence would lead to gross injustice and undoing the finality that is attached to the result on the substance of the dispute following the Supreme Court verdict. The result is that the petitioner's application for condonation of delay fails as the petitioner is deemed to have had notice for a period much prior to the receipt of the administrator pendente lite's first letter of August 28, 2007 which the petitioner has chosen to ignore for want of any plausible explanation. As a consequence, the petitioner's application for revocation of the grant is not taken on board, but even if it were it would have to be dismissed for the only issue therein having been decided in favour of the legatees in the earlier proceedings. The petitioner will pay costs assessed at 2000 GMs."

This decision of the Hon'ble Single Judge passed on 19th March, 2008 was carried in appeal by the plaintiff/applicant and the Division Bench dismissed the appeal. Even the prayer for modification so far as cost awarded by the Single Bench was also refused. Matter went up to Hon'ble Apex Court in special leave to appeal No. 18693 of 2009 and the Hon'ble Apex Court dismissed the special leave petition.

On behalf of the present defendants, Soumi Majumdar and others, this application being G.A. 1858 of 2008 was moved in T.S. No. 88 of 1993 and the said application was disposed of by a Coordinate Bench of this Court on 23rd June, 2008. Relevant portion of the said order is set out below: (page 103 to 104)

"In the present proceedings a grant has already been made. It has been found that Subramanyan has no manner of interest to be entitled to reopen the issue or have the grant revoked. There is no order of any superior forum to the contrary. The Supreme Court order has to be interpreted to imply that till the administration of the estate is complete, the proceedings remained pending in the sense that an application in respect of the estate may still be made to Court for appropriate directions.

The beneficiaries of the estate of Kamal Kumar Mitra, deceased are all together and this application has been by all of them. They want the advocate administrator pendente lite to be discharged as there is no dispute amongst themselves for Soumi Majumdar and Latika Deb, two of the legatees to be appointed joint administrators to complete the administration of the estate and to issue assent to legacy in terms of the Will of March 19, 1991.

It is submitted by Subramanyan that no notice had been issued to Subramanyan as Subramanyan should not be bound by this order. Subramanyan was required to be served a notice since Subramanyan had canvassed that he had an interest in the estate.

There will be an order in terms of prayers (a) and (b). It is recorded that the advocate administrator has been paid his remuneration till February 2008 though the remuneration has not come out of the work but the remuneration has been paid by the applicant legatees.

The administrator will, however, file accounts in the event the administrator had collected any payments relating to the estate. If the administrator had not collected or disbursed any payments, the administrator may inform the legatees now appointed administrator to such effect and upon such letter being received he will require to do nothing further.

GA No. 1858 of 2008 is disposed of without any order as to costs."

The said order dated 23rd June, 2008 was challenged in an appeal being APOT 326 of 2008 by Sharad Subramanyan against Soumi Majumdar, the present defendant. The Hon'ble Division Bench disposed of the appeal and the connected application there at holding inter alia following (Set out page 109 to 110)

"From the factual circumstances, while the High Court's appointment of an Administrator pendente lite appears to be correct, we need not finally decide as to whether the appellant was unfit to act as an executor of Kamal Kumar Mitra's Will. We are cognizant of the fact that the High Court is still seized of the matter and the order passed is only an interlocutory order based on prima facie considerations. In our view, there was sufficient jurisdiction for the High Court to make the order for appointment of the Administrator pendente lite to protect the estate during the pendency of the petition before it. The question as to whether the appellant as the executor has breached his fiduciary duty, can only be determined at the end of the trial. In our view, therefore, the impugned judgment of the High Court is not liable to be interfered with." In our opinion, the last four lines of the order which have been underlined by us hereinabove do not prohibit the Court from appointing another Administrator. The only caveat is that the question as to whether the appellant as executor has breached his fiduciary duty shall be determined at the final stage of the trial. We see no reason to interfere with the order passed by the trial Court.

Both the appeal and the application are dismissed."

Sharad Subramanyan yet made another fresh attempt by filing three separate suits before the Civil Judge, Alipore Court.

Challenging the legacy and transfer of the said property of the legatees of K. K. Mitra to Laxmi Housing Udyog Private Ltd. on the plea that a life interest of Reba Mitra in the said property has become full fledged interest by virtue of Section 14(1) of the Hindu Succession Act, 1956 and the same cannot be decided in the testamentary suit.

In fact, the issue had already been decided in earlier probate proceeding filed by Reba Mitra on the Will of her husband in the Calcutta High Court and which was finalized by the Hon'ble Apex Court. However, the defendant Laxmi Housing Udyog Private Ltd. filed three Civil Revisions before this Court challenging the order rejecting their application under Order VII Rule 11 of the Code of Civil Procedure. This Court however, set aside the order refusing to reject the defendant's application under Order VII Rule 11 of the Code and held that the three pending suits cannot be maintained. The said order in Civil Revision was assailed by Taxation Services Syndicates Private Ltd. by filing a special leave to appeal being No. 32446 of 2015 and the SLP was dismissed.

After such a chequered history of the litigation between the parties in respect of the self-same property the submission made by the plaintiff before this Court to keep its eyes close about the title of the property, cannot be accepted. Parties were granted leave to file written notes.

It is undisputed fact (as has already been mentioned in paragraph 25 of the written notes filed by the plaintiff in course of hearing) that, there was another Will of the deceased/testatrix executed in the year 1997 which stood probated by an order of the District Judge, Alipore. The said paragraph 25 is set out below:

"25. The propounder, Sri Sharad Subramanyan is entitled to the grant of probate of the registered last Will and Testament dated 21st October, 1992 and Codicil dated 21st June, 1998 of the testatrix, Reba Mitra.

In Reply, the Counsel for the defendants submitted that probate of another Will dated 14.12.1997 of the deceased was granted. Against the said grant, the plaintiffs herein have filed an application for revocation for grant being Revocation case No.156 of 2004 before the District Judge, Alipore. The learned District Judge was pleased to stay the operation of the grant. The interim order of stay of operation of grant is being extended from time to time and is continuing.

Two judgments were cited in reply:

AIR 1958 Cal 710 (para 5) and 2004(7) SCC 459 (para 15)

• The facts in the case of AIR 1958 Cal is different from the present one. Appointment of an administrator pendente lite was an issue there. The Court was hearing an appeal from an interlocutory order. The case herein is completely different. Lordship is hearing the final hearing of the probate suit.

• 2004(7) SCC 459 - Interpretation of Section 61 of Karnataka Land Reforms Act, 1961 was for consideration before the Hon'ble Supreme Court. A statutory embargo was there on execution of a Will. In such circumstances, Supreme Court held that Court shall not refuse to determine the question as regards validity of the Will, as in terms of the provisions of a statute, the same would be void ab initio. The bar was under the local law of Karnataka. In the instant case there is no statutory bar in execution of the Will by the deceased."

It is not understood if the deceased executed a Will on 14.12.1997 which was probated in the District Judge's Court at Alipore how can the executor maintain the present probate proceeding for grant of the Will dated 21st October, 1992 and the Codicil dated 21st June, 1998. However, it is submitted by the plaintiff that a revocation case has been filed being Revocation case No. 156 of 2004. The doubt has not been cleared before this Court as to the genuineness of the Will and particularly which one is the last Will of the testatrix coupled with the question whether she had any authority to exercise her right over the property being 13/1, Promotesh Barua Sarani, Kolkata- 700019, and to include the same in the Will, and whether as such issues Court can reject grant of probate.

In Shoilesh Chandra Mustafi (supra), appellant raised a proposition that a Probate Court should not go into title of the testator in the property bequeathed. The issue, has been more illustratively discussed and held by a Division Bench of Our High Court that there cannot be any such rigid proposition. The said case arose in relation to an appointment of Administrator pendente lite. In an off shoot on an application for probate originally filed by one Mustafi in the Court of the District Judge. Subsequently, one Guruprosad Mustafi also joined as a co-applicant for the probate. The Will in question purports' to have been executed by one Hem Nolini Devi in October, 1950. Hem Nalini had three sons, Prafulla, Nirmal and Shoilesh of whom the first two were dead. Amal is son of Nirmal and Guruprosad is son of Prafulla. As the application for grant of probate had become contentious, the application was subsequently registered as a plaint. Summons was duly served on Shoilesh and he appeared and contested the proceedings. During pendency of the suit in the Court of the District Judge an application for appointment of an administrator pendente lite in respect of the properties covered by the Will was filed by the plaintiffs on the allegation that defendant Shoilesh had taken possession of the ground floor portion of one of the properties and after having inducted tenants in that portion he was not paying anything towards the seba puja of the Deity or towards Corporation taxes and rates. This application was opposed by Shoilesh who contended that the house property in question was a debottar property, having been dedicated to Deity Sri Sri Iswar Raj Lakshmi Thakurani by the alleged testatrix as early as in 1939. The contention of the objector, therefore, was that no administrator could be appointed so far as this property was concerned, because the testatrix could not make any valid disposition in respect of it, having already dedicated it in favour of the Deity. The contention of the objector further was that it was not expedient to take this property out of the possession of the objector and to make it over to the possession of the administrator.

The learned District Judge by his order repelled these contentions of the objector and directed that an administrator pendente lite should be appointed in respect of all the properties covered by the Will including the disputed house. A practicing advocate of the District Court was also appointed administrator in respect of the properties covered by the Will including the disputed house and after he had furnished requisite security.

While giving answer to the questions whether Probate Court should go into the disputed title or not. The Hon'ble Court said ordinarily no Probate Court should enter into question of title, where conflicting claims of title is involved in respect of the property covered by the Will but where a party applies for appointment of administrator pendente lite and the objector to such an appointment puts forth a claim to the property apart from the Will, such claim should be considered at least prima facie , for the purpose of allowing or refusing the prayer for an appellant of the administrator pendente lite. The Division Bench held "Dangerous consequences may follow if the Court totally refuses to enter into the question of title altogether, because it would be very easy for a particular party to get in administrator pendente lite appointed in respect of the property of another person and to take it out of his possession simply because it may happen to be included in that will of a testator." As against the finding of the District Judge that no such question could be raised in any manner as regards the title of the property of the deceased in a probate proceeding. The Division Bench held "In our opinion, that an erroneous proposition of law propounded by the learned District Judge."

The decision of the Division Bench also took note of the proposition in Atulabala Dasi -Vs. - Nirupama Devi reported in AIR 1951 Cal 561 (A) where it was held that although it is not for the Probate Court, while granting Letters of Administration, to interpret the Will for the purpose of deciding the question of title, the Court will have to be satisfied, prima facie, that the will contains provisions which affect properties in respect of which a conflicting claim is made.

At the end the Hon'ble Division Bench cancelled the order of appointment of administrator pendente lite so far the disputed house is concerned and the appeal of the objector was allowed. The administrator was directed to make over possession of such house to the appellant/objector.

Under the concept of fair dispensation of justice, our Constitution also prohibits abuse of the process of Court and this is part of public policy too because a man again and again cannot be allowed to agitate his grievance on an issue already settled and based on this public policy Civil Procedure Code also enacted provisions of Section 11 which prohibits raising of same issue between the parties in a subsequent proceeding over again. Law deprecates such an action. Even to broaden the application of the principle of res judicata from that of a Civil Suit it has been enlarged up to a proceeding by Civil Procedure Code (Amendment) Act, 2002, brought in Section 141 of the Code of Civil Procedure. The provisions of Section 11 and Section 141 are set out below:

"S. 11 Res Judicata. -No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.

Explanation I.-- The expression former suit shall denote a suit which has been decided prior to a suit in question whether or not it was instituted prior thereto.

Explanation II.-- For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court.

Explanation III.--The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.

Explanation IV.-- Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.

Explanation V.-- Any relief claimed in the plaint, which is not expressly granted by the decree, shall for the purposes of this section, be deemed to have been refused.

Explanation VI.-- Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating .

1[Explanation VII.-- The provisions of this section shall apply to a proceeding for the execution of a decree and references in this section to any suit, issue or former suit shall be construed as references, respectively, to a proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree."

Explanation VIII.-- An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised.]

"S. 141. Miscellaneous proceedings. -The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction.

[Explanation.- In this section, the expression "proceedings" includes proceedings under Order IX, but does not include any proceedings under article 226 of the Constitution.]"

The principle has been highlighted in the case of Satyadhyan Ghosal And Ors. vs Sm. Deorajin Debi And Anr. reported in AIR 1960 SC 941 that even principle of res judicata is applicable in two different stages of the same proceeding its scope has been enlarged by the verdict of the Apex Court even to a proceeding before a Coordinate jurisdiction. Therefore, it can be said that principles that govern the obligations of a litigant while approaching the Court for redressal of any grievance and the consequences of abuse of the process of Court may be summarized to say -

(1) Courts have, over the centuries, found upon litigants who, with intent to deceive and mislead the Courts, initiated proceeding without full disclosure of facts and came to the Courts with un-clean hands, should be condemned with tough voice the practice to keep the Court in dark about the facts and law already settled for such litigants and the deprecation should be in such a manner that people at large must get a strong message that vague litigation and or fraudulent activities before the Court must get an answer with penal consequences.

(2) There should always be duty casts upon the litigants to approach the Court with clean hands is an absolute obligation.

(3) Litigants should not be allowed to make any attempt to pollute the fair atmosphere of Justice Dispensation System of the Country by adopting unfair means of suppressing material fact before the Court.

(4) In order to give fair justice to the litigating parties the Court must ensure that its process is not abused and in order to prevent abuse of the process of the Court, it would be justified even in insisting on furnishing of security that in case of serious abuse the Court would be duty bound to impose heavy costs.

In Kishore Samrite -vs. - State Of U.P. & Ors reported in AIR 2012 SC (supplementary) 699 the Hon'ble Apex Court has held that it has to maintain strictest vigilance over the abuse of the process of court and ordinarily meddlesome bystanders should not be granted "visa". Many societal pollutants create new problems of un-redressed grievances and the Court should endure to take cases where the justice of the lis well-justifies it.

In view of the discussions hereinbefore, and the attempt of the petitioner to unsettle the settled position of law, the contention made before this Court is not only liable to be rejected but the testamentary suit should be dismissed with heavy costs such costs is assessed at Rs.1,00,000/- (Rs. One Lakh) only, to be paid by the plaintiffs to the defendants by an account payee cheque to be drawn in the name of the learned Advocate on record for the defendants.

Rider-1

This court is not unmindful of the principle of res judicata under the provision Section 11 of the Code of Civil Procedure. Law has already been settled by the Hon'ble Apex court in case of Satyadhan Ghoshal -Vs. - SM. Deorajin Devi reported in AIR 1960 SC 941 in the said decision the Hon'ble Apex Court held that once a res is judicata, it shall not be adjudged again. The Hon'ble apex Court has also held that the principle applies as between past litigation and future litigation so also as between two stages in the same litigation to the extent that a Court, whether the trial Court or a Higher Court having at a earlier stage decided a matter in one way will not allow the parties to re-agitate the matter again at a subsequent stage of a same proceeding. In the present case since the issue whether the testatrix had title over the property in question had reached finality the same issue is no more open re-agitated at a subsequent proceeding once again.

Urgent Photostat certified copy of this judgment, if applied for, be delivered to the learned counsel for the parties, upon compliance of all usual formalities.