Shivendra Bahadur Singh vs State & Ors.
2009 Latest Caselaw 4071 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+                            Test Case 43/1987 &
                 IA Nos.5054/1999, 6581-6582/2005 and 3097/2009

                                                   Reserved on : 05.10.2009
                                                 Pronounced on: 09.10.2009

Shivendra Bahadur Singh                                        ........ Petitioner

                       Through : Mr. Ravindra Srivastava, Senior Advocate with
                       Mr. Lalit Gupta, Mr. Kunlal Verma and Mr. Anoop Jain,
                       Advocates

                                            Versus

State & Ors.                                                   ....... Respondents

                       Through : Mr. Jayant K Mehta, Advocate
                       Mr. Rahul Gupta, Mr. Rajanish Mishra, Mr. Shekhar Dasi and
                       Ms. Aanchal Dhingra, Advocates for Resp. Nos. 3 to 5.

CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT

1.     Whether the Reporters of local papers            Yes
       may be allowed to see the judgment?

2.     To be referred to Reporter or not?               Yes

3.     Whether the judgment should be                   Yes
       reported in the Digest?

HON'BLE MR. JUSITCE S.RAVINDRA BHAT

*

1. The present order will dispose of several applications pending- for a long time (in the case of two of them, for about 21 years) in the probate proceeding, on the file of this court.

2. The estate of late Rani Padmawati Devi, (hereafter "the estate") who died intestate on 12.4.87, was the subject of the probate proceeding; the petitioner, Shivender Bahadur Singh, sought letters of administration, as her heir. That petition, under Section 278 of the Indian Succession Act was registered as Probate case No. 43 of 1987. On 10th May, 1988, by an order of learned Single judge of this Court,

Test Case 43/1987 Page 1 Shivendra Bahadur Singh was appointed as Administrator (hereafter referred to as "the Administrator"). The said order reads as follows:

"Pr. 42/97

This is a petition under section 278 of the Indian Succession Act for grant of Letters of Administration without will.

Rani Smt. Padmawati Devi, hereinafter referred to as the deceased, died instestate at Bhopal on 12th April, 1987. She was the mother of the petitioner and of respondents 3 to 5. It is alleged that respondents 2 to 4 have executed a power of attorney in favour of the petitioner in respect of all movable and immovable properties left by the deceased. It is further alleged that respondents 2 and 3 have relinquished their rights and responsibilities in favour of the petitioner.

The deceased had left behind properties, details of which have been set out in Schedules B1 and B2. The total value of the assets comes to approximately Rs.15,40,000/-. Schedule C gives particulars about the liabilities of the deceased. The total liabilities mentioned therein come to Rs.36,87,828/-, the liabilities being only due to the demands raised by the Income-tax and wealth-tax authorities.

Notice of the application was issued. In the application it is prayed that as the petitioner is the owner of 3/5th property and also holds a power of attorney of respondent No.4, letters of administration should be granted in his favour. It is further contended that respondent No.5 has weak eye sight and is not physically or otherwise capable of administering the estate.

Reply has been filed by all the respondents. Respondents 2 to 4 do not oppose the grant of letters of administration in favour of the petitioner. The opposition to the grant of letters of administration is only from respondent No.5.

Parties were required to file affidavits by way of evidence. It is only the petitioner who has filed the affidavit. No affidavit by way of evidence has been filed by respondent No.5 nor is any counsel present on his behalf.

The petitioner in this case, as would be evident from what has been stated by respondents 2 to 4, appears to be the owner of 3/5 th of

Test Case 43/1987 Page 2 the estate left behind by the deceased. Furthermore, out of the 5 legal heirs, 4 of them have agreed, including the petitioner, that the estate should be administered by the petitioner. It is important to note that one of the legal heirs who has so agreed is respondent No.2, who was the husband of the deceased and father of the petitioner and respondent No.5. The petitioner is also holding an important position in life being a Member of Parliament and in the absence of any evidence being led by way of affidavits or otherwise by respondent No.5, I see no reason as to why the petitioner should not be granted the letters of administration as prayed for.

I accordingly grant Letters of Administration without will attached to the petitioner. The formal Letter will be issued in the form set forth in Schedule 7 after the petitioner has furnished a bond to the Registrar of this Court with one surety for a sum of Rs.5 lacs."

3. On 18-7-1988, an application, IA 4065/1988 was filed, for setting aside the order granting probate; the applicant was Ravindra Bahadur Singh, the fifth respondent, who had one fifth interest in the property. It is a matter of the record that the said application was entertained on 13th August, 1988; the petitioners' counsel appeared and accepted notice. On the authority of this court's order, the Administrator, allegedly negotiated and entered into a sale transaction with the impleaded applicant (hereafter called "Indian Associates"). The claimed purpose of the transaction was utilization of the sale consideration, to meet the wealth tax and income tax liabilities of the estate. According to Indian Associates, the agreement to sell was entered into on 9th September, 1988.It is claimed that a Sale deed was executed and sale consideration duly received (by the Administrator), on 11-10-1988.

4. On 12.10.1988, in an application ( IA 8566/1988) filed by Ravindra Bahadur Singh, this court restrained the Administrator from transferring, alienating or parting with possession of the properties, which form subject matter of the estate of Rani Padmavati. On 21.12.1988 the Administrator, filed a statement of account in this Court, reflecting the receipt of Rs. 35 lakhs by the estate on account of sale of Padma Bhawan to the appellant. It is contended that notwithstanding the sale deed already

Test Case 43/1987 Page 3 executed in favour of Indian Associates, Ravindra Bahadur Singh, sold a part of the property known as Padma Bhawan, by a sale deed dated 29.7.1997, to one M/s Jespur Construction Company Pvt. Ltd. (hereafter "Jespur"), for a consideration of about Rs. 21 lakhs. This amount, according to Indian Associates, was not accounted for in the estate.

5. The Administrator filed an application (IA. No. 10437/97), where, by order dated 19.2.1998 this court restrained Ravindra Bahadur Singh and other respondents from alienating, disposing or parting with the possession of the properties belonging to the estate. Indian Associates refers to a suit instituted by it, before the Civil Court at Raipur for mandatory injunction and declaration as regards the sale deed executed by Ravindra Bahadur Singh in favor of Jespur as being void. Soon thereafter, Shivendra Bahadur Singh, (the petitioner-administrator), died on 31.12.1998. Indian Associates, therefore, in order to protect its interests filed an application (IA. 490/99), seeking intervention/ impleadment in the pending probate case. It also filed another application, (IA No. 5054/99) for the appointment of an administrator, in place of the late Shivendra Bahadur Singh. This court issued notices on the said applications. Indian Associates submits that the legal heirs of the Administrator filed two applications (IA Nos. 12147/99 and 12148/99) for their substitution - in the proceedings, and for condonation of delay.

6. Thereafter the parties to the probate case (i.e heirs of Padmavati Devi, and heirs of the Administrator) filed an application under Order XXIII, Rule 3 of the Code of Civil Procedure (IA. No. 4812/2000), seeking disposal of the Probate case on the basis of a memorandum of understanding (MOU) dated 26.8.1999, executed amongst them. Indian Associates argues that the MOU was entered into with mala fides to allegedly get out of the sale effected by the Administrator in its favour. It is contended that though the MOU mentions several assets of the estate, the transaction in favour of Indian Associates is not mentioned; yet, the sale of part of

Test Case 43/1987 Page 4 the property subsequently by Ravindra Bahadur Singh in favor of Jespur finds acknowledgment and is affirmed. The MOU further recites that all the surviving legal heirs, had agreed to sell and transfer their respective portions in favour of Jespur.

7. Indian Associates' application for intervention/impediment (IA. No. 490/99), was dismissed by this court, on the reasoning that its rights if any, could not be decided in the letters of administration proceedings. Its other application (IA 5450/1999) too, was rejected, on 17-1-2002. Indian Associates carried the dismissal of its application for impleadment in appeal to the Division Bench. The appeal was allowed. The Division Bench, in its judgment directed:

"(We)...allow the application (I.A. No. 490/99) to the extent that the appellant shall be entitled to participate in the proceedings in order to enable it in safeguarding its interests and that also to the extent of that part of the estate of Rani Padmavati, which is the subject matter of the sale deed dated 11.10.1988 as alleged to have been executed by late Shivendra Bahadur Singh in favor of the appellant, including the legal capacity of late Shivendra Bahadur Singh, as an Administrator pendente lite to enter into the sale deed with the appellant, and also in relation to the legal effect of the said transaction, making it clear that the appellant shall not be entitled in any manner to intervene or interfere with, or participate in the pending probate case qua the remaining estate."

8. Mr. Jayant Mehta, on behalf of Indian Associates, argues that this court has an obligation to issue orders on the management of the estate, since the Administrator duly appointed, had filed accounts in December, 1988, disclosing the necessity to enter into sale transaction to clear the revenue liabilities. It is contended that the agreement to sell the property in question was validly entered into on 9-9-1988, when there was no cloud on the powers of the Administrator. The other heirs - except Ravindra Bahadur Singh had consented to the grant of letters of administration, and the court, after satisfying itself about all material aspects, did issue the letters on 10-5-1988. It was emphasized that Ravindra Bahdadur Singh attempted to get the matter re-opened much later, and this court had merely issued

Test Case 43/1987 Page 5 notice on the application for recall of its order (granting letters of administration, dated 10-5-1988) on 13-8-1988.

9. Relying on Section 220, of the Succession Act, Indian Associates argues that when a court issues letters of administration, the administrator possesses all rights in relation to the assets and estate of the deceased, as if he were the owner. Learned counsel submitted, on the authority of A.L.A.R. Firm -vs- Maung Thwe AIR 1923 Rangoon 69, that when an administrator who also is an heir sells a part of the estate, apart from the authority invested under law to do so, it is also recognized that he can part with the maximum extent of the estate which he inherits. It is submitted that the judgment is also an authority to say that the doctrine of lis pendans under Section 52, Transfer of Property Act, does not apply in such cases.

10. It was submitted that Indian Associates can claim to be a bona fide transferee of the property, since it was sold by the Administrator, validly, after grant of letters of administration by the court. Counsel argued that there was no cloud on the authority of the administrator, when the transaction was completed, pursuant to the agreement to sell, dated 9-9-1988. Indian Associates argues that no obligation was ever cast on it, in law, to ensure that the sale proceeds had to be applied for the ostensible purpose mentioned by the administrator, i.e to liquidate the liabilities of the estate. Reliance was placed upon the decision reported as Mathuradas Vassanji - vs- Raimal AIR 1935 Bom 385.

11. Indian Associates urges that mere pendency of an application to recall the grant of letters of administration, did not amount to any impediment on the powers of the administrator validly appointed by the court. It was submitted that a co-joint reading of Sections 211, 273 and 307 establishes that a letter of administration issued by the court has effect over all the properties and estate of the deceased, and is conclusive as to the representative title against debtors of the deceased. The

Test Case 43/1987 Page 6 administrator has complete authority to deal with the property vested in him, in the manner he deems most appropriate. It is also submitted that if for some reason, the grant is revoked, the revocation has prospective effect, thus saving any intervening transactions. Reliance is placed on the decision reported as Crystal Developers -vs- Asha Lata Ghosh 2005 (9) SCC 375.

12. It is argued that Section 307 authorizes a validly appointed Administrator to transfer and sell the property of a deceased. The expression "may" in Section 307 (2) signifies that there is no bar in the exercise of such power, and the court can be approached for permission. Indian Associates submits that the lack of prior permission from the court in the case of such transfer, does not vitiate the sale, but merely renders it voidable, which in turn means that the party aggrieved has to approach a court of law, to avoid, or challenge such a transaction.

13. It was submitted that the transfer made by the Administrator was complete almost in all respects, and at the stage of registration of the sale deed, but that the Sub-Registrar refused to register the document, on account of orders made under the Urban Land Ceiling and Regulation Act, 1976 (hereafter called "the Ceiling Act") in respect of properties of the deceased Padmavati Devi. This led to writ petitions being preferred before the Madhya Pradesh High Court, which were dismissed. Ultimately, on 14th March, 1997, the authorities under the Ceiling Act issued an order, clarifying that the previous restrictions on transfer stood withdrawn. As such there was no impediment from completing the sale transaction due to this later development. It is urged that in fact, Jesper claims to have acquired title to portions of the estate, as a result of the very same order under the Ceiling Act.

14. It was argued that the application for recall of the letters of administration has not been argued or pressed all this while, and the administrator died, after submitting the accounts, which clearly reveal that the estate was encumbered with

Test Case 43/1987 Page 7 tax liabilities, which were sought to be liquidated, through sale proceeds and consideration received in respect of the transaction to which Indian Associates was a party. It is submitted that though Indian Associates had filed a civil suit, (before the Civil Judge, Raipur) to assert its title, the same was dismissed by order dated 21-1- 2009, due to the fact that the court held that the suit was barred, since there was no registered sale deed in its (Indian Associate's) favour. It is urged that in view of these facts and developments, this court alone has jurisdiction to issue orders pertaining to the administration of estate of Late Padmavati Devi, since the administrator appointed died. The legality of the sale transaction dated 12-10-1988 cannot now be doubted, due to the 14.03.1997 order under the Ceiling Act; it is also submitted that the same order is sought to be used by Jesper, to justify the sale transaction of July, 1997, in respect of a portion of the property. Since Indian Associates entered into the sale transaction prior to that date, the sale in its favour is valid, and this court, has proper jurisdiction regarding administration of the estate, and would be justified in pronouncing on the validity and binding nature of the earlier sale dated 12 th October, 1988.

15. It is urged, on behalf of Jesper, and on behalf of Ravindra Bahdur Singh, that Indian Associates' request that the sale transaction in its favour should be deemed as proper and binding, cannot be entertained. It is urged that the Division Bench merely allowed Indian Associates to participate in the proceedings to safeguard its interest. However, its substantive request (IA 5054/1999) for an order, to administer the estate, and for approval of the sale was rejected. That order has become final, and binds all the parties. In these circumstances, this court should not issue any declaratory order, in respect of the so-called sale transaction dated 12th October, 1988.

16. Ravindra Bahdaur Singh argues that the Administrator could not have transferred the property, without permission of the court, in view of the mandate contained in Section 307 of the Succession Act. It is urged, by citing Midnapur

Test Case 43/1987 Page 8 Zamindari Co-vs- Ram Kanai Singh AIR 1926 Pat 130; In re Estate of Indrani AIR 1931 All 212; Gotiram -vs- Sona Bai AIR 1970 Bom 73, that such transfers are suspect, especially when there are heirs to the estate; the permission of the court is necessary for more than one reason. It is urged that the mere circumstance that letters of administration were granted did not provide an occasion to the late Administrator to deal with the property, as per his whims. He stood in the position of a trustee, and had to deal with the estate in the larger interests of the other heirs. It was urged that the Administrator was aware that an application for setting aside the order issuing letters of administration had been filed; notice too was taken on his behalf on 13-8-1988. Despite this, he claims to have entered into an agreement to sell the property on 09-09-1988 and have proceeded to sold it on 12-10-1988. The so-called sale transaction, it is submitted, was not recorded in a registered document or instrument. Though the administrator was aware about the possibility of the grant of letters of administration being reviewed or withdrawn, he malafide, and with deliberate intent proceeded with the attempt to adversely affect the estate. Indian Associates, which purports to profit by such malafide actions, cannot seek any advantage from the court.

17. It is argued that Indian Associates had moved the Madhya Pradesh High Court, through a writ petition, (Misc. Petition. No. 2173/1989) where the relief claimed was for quashing an order of the Sub Registrar, Raipur, dated 21-10-1988, which had objected to the registration of the sale deed. The High Court in that case dismissed the petition, stating that the sub registrar refused to register the document due to the pendency of another petition, MP No. 3328/1988 (filed by Ravindra Bahadur Singh) and also for the reason that the lands were in excess of the ceiling prescribed under the Ceiling Act. It was held that:

"Section 27 (1) of the Ceiling Act, in so far as it operated against the land within the ceiling limit is concerned. The sale deed however includes land beyond ceiling limit and therefore the question of applicability of this law will require consideration. Provisions of Section 26 of the Ceiling Act

Test Case 43/1987 Page 9 imposes restrictions on registration of documents and therefore the power of the respondent Sub Registrar to require the vendor to satisfy the requirement of this provision cannot be doubted. It is well established that where a subsequent special law imposes restrictions on... conferred by nearly a general law, the provisions of the subsequent draw have to be obeyed, more so because the provisions of the subsequent Ceiling Act have been made applicable notwithstanding the provisions of the Registration Act. This court is therefore of the opinion that the respondent Sub Registrar was within his authority and jurisdiction to require the window to submit details and in so doing he has not acted outside his authority and jurisdiction..."

18. It is also argued that in another judgement delivered by the Madhya Pradesh High Court, dated 12-10-1992 (Misc. Petition. No. 3328/1988), the question of legality of an order permitting the administrator to sell the suit land, to Indian Associates was directly in issue. Although Indian associates was not a party, impleaded initially, it sought to intervene and was permitted to do so. The question of validity in correctness of the sale transaction was directly involved in those proceedings. The High Court, it is contended allowed the petition and set aside the order permitting the sale. In these circumstances, the validity and correctness of the transaction which the Indian Associates now seeks endorsement of in these proceedings, was considered, put directly in issue, and adversely found against Indian Associates. In those two writ proceedings, after having suffered the adverse orders, appeal was sought by special leave, and the Supreme Court declined to interfere with the Madhya Pradesh High Court's two orders. The very same issues that are agitated in these proceedings, were put to test, and were directly as well is substantially in issue before the Madhya Pradesh High Court. The latter's judgement binds the parties, which includes the Indian Associates. Relying on the decision of the Supreme Court reported as Gulab Chand ChotaLal Parikh -vs- State of Gujarat AIR 1965 SC 1153, it was argued that decisions in writ proceedings would also operate as res judicata and preclude suits and later claims on the same issues that are pronounced upon in another judgement, or could have been raised and taken by the parties in the previous proceedings.

Test Case 43/1987 Page 10

19. It is argued that Indian Associates, contrary to its assertions is not even in possession of the suit property or any part of it. During the lifetime of the administrator, right up to 1997, no attempt was made by him to apprise the court about the transaction and seek prior permission before the sale. The argument made by Indian associates, that the subsequent event by way of the order of the ceiling authorities, dated 14-3-1997, conveniently overlooks the fact that the illegality which attached itself to the transaction by reason of section 307 of the Succession Act, does not get cured and that in any event the March 1997 order only operates prospectively, without legalising or regularising a previous illegal transaction.

20. The facts, emerging from the above discussion are that this court, by its order dated 10-5-1988, granted letters of administration to the late petitioner. This was concededly in the absence of Ravindra Bahadur Singh, a heir to the deceased's estate. The latter moved for setting aside or recall of that order, on 18 th July, 1988. Notice on that application was accepted by the Administrator, on 13-8-1988. Concededly Indian Associates does not dispute that when the application for setting aside the letters of administration was pending, and agreement to sell the property was entered into. According to Indian Associates itself, the sale transaction document was executed on 11-10-1988. This court issued an interim order, interdicting the Administrator from selling the property or transferring it on 12-10- 1988. On that day, the administrator did not mention about the sale; the earliest point in time he mentioned about it was in the accounts filed in December, 1988. Apparently an order by the authorities in Madhya Pradesh had been made on 20-09- 1988 permitting the sale. That order was challenged by Ravindra Bahadur Singh, in a writ petition which was allowed in 1992. Indian Associates sought a direction to the Sub Registrar (who refused to register the sale document), in another writ petition. That writ petition was also dismissed in 1992. Indian Associates' attempts to get the two judgements set aside were unsuccessful, before the Supreme Court. While matters stood thus, the authorities under the Ceiling Act issued an order on 14-3- 1997, exempting the suit lands from provisions of that law. Jesper purchased a Test Case 43/1987 Page 11 portion of the suit property after this order. Indian Associates had sought for impleadment which was finally allowed by the Division Bench; its application for an order to administer the estate of the deceased, was rejected.

21. For a fuller appreciation of the controversy, it would be essential to extract Section 307 (of the Succession Act); it is in the following terms:

"307 (1) Subject to the provisions of Sub-section (2), an executor or administrator has power to dispose of the property of the deceased, vested in him under Section 211; either wholly or in part, in such manner as he may think fit.

(2) If the deceased was a Hindu, Muhammadan, Buddhist, Sikh or Jain or an exempted person, the general power conferred by Sub-section (1) shall be subject to the following restrictions and conditions namely:--

(i) The power of an executor to dispose of immovable property so vested in him is subject to any restriction which may be imposed in this behalf by the will appointing him unless probate has been granted to him and the Court which granted the probate permits him by an order in writing, notwithstanding the restriction, to dispose of any immovable property specified in the order in a manner permitted by the order.

(ii) An administrator may not, without the previous permission of the Court by which the letters of administration were granted

(a) mortgage, charge or transfer by sale, gift, exchange or otherwise any immovable property for the time being vested in him under Section 211, or

(b) lease any such proper for a term exceeding five years.

(iii) A disposal of property by an executor or administrator in contravention of clause (i) or clause (ii), as the case may be is voidable at the instance of any other person interested in the property."

22. The Bombay High Court, in Gotiram, had occasion to deal with the impact of Section 307; it held that:

"I am afraid, unless in Section 307(2) the word "restriction" is so interpreted as to cover a total prohibition of disposal of property, the results will be iniquitous. The general power of disposal of property

Test Case 43/1987 Page 12 conferred by Section 307(1) is made sub-Sect to the restriction imposed by Subsection (2). If the word "restriction" in Sub-section (2) did not cover and include total prohibition, the consequence will be that the general power of disposal over property conferred by Sub-section (1) will not be subject to or affected by total prohibition, and the executor will be free to dispose of the property in spite of the prohibition. The statutory general power of disposal conferred by Sub-section (1) will override the prohibition, the general power not having been made subject to the prohibition. Thus, while restrictions on power of disposal will prevail total prohibition of disposal will not prevail. It cannot be that the general power of disposal over property is made subject to restrictions that is bound and confined within limits, but is not made subject to a total prohibition. If this contention of Mr. Chitale were correct, then notwithstanding a total prohibition of disposal of property, the general power conferred by Section 307(1) will remain. This cannot be the intention of the Legislature. I am, therefore, of the view, and I also hold, that in Section 307(2) of the Indian Succession Act the word "restriction" includes and covers a total prohibition. The general power of disposal of property conferred by Sub-section (1) is therefore, subject to the prohibition on disposal imposed by the will, and a sale in contravention of such prohibition is voidable at the instance of a person interested as provided in clause (iii) of Sub-section (2) of Section 307. Mr. Chitale's contention that under Sub-section (2) a disposal of property in violation of a restriction is made voidable but a disposal of property in violation of prohibition will be totally void cannot be accepted, because neither Section 307 so provides, nor does such inference follow from it. I, therefore, hold that the sale by Sakhubai to defendant No. 1 Sonabai on 16th June 1937 was voidable within the meaning of Section 307(2)(iii) of the Indian Succession Act."

Earlier, the Allahabad High Court in Re Estate of Indrani AIR 1931 All 212, speaking about Section 307, stated that:

"The object of this rule is to enable the District Judge, as the Court of testamentary jurisdiction to see that the transfer" applied for is necessary in the interests of the administration of the estate."

23. The judgment in Crystal Developers was in the context of revocation of a probate granted previously. An intervening sale had taken place, during which the third party bona fide acquired title. The Supreme Court discussed the scheme of the Succession Act, elaborately, setting out the difference between a probate, and

Test Case 43/1987 Page 13 letters of administration, underscoring that in the case of the former, which is founded on a bequest, the title vests in the executor, and the subsequent grant of probate invests conclusiveness, whereas in the case of an administrator, title vests after grant of the letters of administration. The court also observed that the object of the Act is to make it safe for the public to freely deal with the grantee:

"The theory of vesting of the estate in the executor at the moment of death of the testator, even before the will is probated, is true enough for the administration of estate but it is subject to the qualification that the grant even if erroneously made is revocable if the circumstances in the explanation to section 263 exist. However, till the grant is revoked, the grantee is the only legal representative of the deceased and people may safely deal with such representative in good faith in due course of administration and such dealings will be protected even if the grant is subsequently revoked."

It was therefore, held that revocation of the grant does not make the grant void ab initio and will not invalidate any intermediate acts done in good faith in due course of administration of estate.

24. This court observes that the facts in Crystal were entirely different; one there was a will, for which probate was granted. Two, a third party purchased the property, bona fide. Thereafter, the court revoked the probate. In this context, it was observed that the revocation of probate is prospective, and would not affect a third party's bona fide and valid transaction. Here, however, the facts are quite different. The letters of administration were granted on 10-5-1988 in the absence of Ravindra Bahadur Singh; he approached the court in July 1988 for recall of the order; though there is some delay, the fact remains that the court deemed it appropriate to issue notice in the application, on 13-8-1988, which was accepted by the late Administrator. Neither on that date, nor later, did he disclose the intended sale though he claimed it to be for the benefit of the estate. Neither then, nor now, is any explanation afforded for this silence. The earliest time, when he mentioned about the sale, was when accounts were filed; those too do not contain details in the form

Test Case 43/1987 Page 14 of demands by any tax authorities, assessments, etc. All these point to deliberation, and clear attempts to conceal facts from the court, with a view to perhaps achieve a fiat accompli. In these circumstances, the application by Ravindra Bahadur Singh, which impelled this court to injunct the Administrator, on 12-10-1988 itself amounted to impeaching the transaction. The court is in agreement with the ruling in Gotiram, that the Administrator, not being the sole heir entitled to the property exclusively ought to have sought the leave and permission of the court before encumbering or selling it, as he claims to have done in this case. That the consequence of the transaction being "voidable" would only mean that it could be challenged, or objected to. The contesting heir, Ravindra Pratap Singh did not agree to such proposal, and applied for an injunction, which was granted.

25. The court is also of the opinion that having suffered adverse orders in the Madhya Pradesh High Court, and tested their correctness even in the Supreme Court, on the same issues, i.e legality of the sale transaction, Indian Associates cannot, in these proceedings - after dismissal of their substantive application for affirmation of the same transaction, seek the same relief. No doubt, the context of those decisions was the order under the Ceiling Act. Nevertheless, those proceedings ended in a binding order; the subsequent order dated 14-3-1997 cannot act as a kind of retroactive validation of a transaction held to have been unjustified in law, since the lands had - during the subsistence of the orders impugned in the writ petitions - been declared excess. On this score too, the arguments of Indian Associates cannot be accepted.

26. The court notices that after the death of the Adminstrator, no one interested in the estate, in the sense of a necessary or proper party (i.e. heirs of the late Padmavati Devi) is interested, or participating in these proceedings, claiming any further relief towards administration of the estate. In these circumstances, the persistence of Indian Associates, that the court should issue an order, endorsing the

Test Case 43/1987 Page 15 transaction in its favour, is without any legal basis. The court cannot, in probate proceedings, settle or deal with questions of title.

27. For the above reasons, the court is of opinion that no further lawful orders can be made in exercise of proper jurisdiction, in the probate proceedings. All pending applications, IA Nos.5054/1999, 6581-6582/2005 and 3097/2009 are, accordingly disposed of.

October 09, 2009                                       (S.RAVINDRA BHAT)
                                                             JUDGE




Test Case 43/1987                                                           Page 16