1. The appellant before us is the plaintiff. The first defendant is the brother of the plaintiff and second defendant is the purchaser of the second item of the plaint schedule property. There is no dispute that the plaintiff and defendants are the children of Roza Nazareth, who died on 24th July, 1954. There were other children also. The first defendant set up a Will under which he claimed exclusive right in respect of the assets left by Roza Nazareth. On 6th March, 1964, the first defendant obtained a probate as per Ex. D.11 Subsequently, he sold the second item on 6th December, 1971, to the second defendant. According to the plaintiff, the probate obtained by the first defendant was without notice and was void. He approached the court for revocation of the probate and the revocation was ordered on 3rd March, 1975 as per Ex. P. 7. Subsequently he obtained the shares of other children of Roza Nazareth, except that of the first defendant, and proceeded to file the present suit claiming five out of six shares in the two items of properties. The first defendant raised several contentions including the plea of adverse possession. However, the trial court rejected all these contentions. But while decreeing the suit, the trial court held that the title of the second defendant cannot be disturbed because he is a bona fide purchaser from the first defendant and the second defendant was entitled to act on the basis of the probate obtained by the first defendant. The trial court held that the revocation of the Will would relate back to the date of filing of the application for revocation and all anterior acts cannot be set at naught by the court.
2. It was contended before us by Mr. B.L Acharya, the learned counsel for the appellants, that when the probate is revoked, it would relate back to the date of setting up of the Will by the propounder of the Will and, therefore, it has to be held that there was no Will at all from the very beginning; if so, the first defendant had no title to pass on the properly to the second defendant; the sale deed shall have to be declared as void and the appropriate share of the plaintiff should be decreed.
3. It is not possible for us to accept the contention of the learned counsel for the appellants. The grant of probate establishes the genuineness and the enforcibility of the Will and the person in whose favour the probate is granted is entitled to convey appropriate title arising out of the Will which was probated by the court. May be, under certain circumstances, the probate could be revoked. It is also possible as happened in the present case, the propounder of the Will did not take appropriate steps to notify the other heirs before obtaining the probate. But the third party who acts bona fide and deals with the person who obtained the probate and purchases the property cannot be made answerable to the fraud or the mistakes committed by the propounder of the Will. Law does not expect the third party like the second defendant to examine whether the probate was properly obtained and whether all the procedural requirements were satisfied before the probate was granted by the court.
4. Section 227 of the Indian Succession Act, 1925, says that probate of a Will when granted establishes the Will from the death of the testator and renders valid all intermediate acts of the executor as such. Section 297 declares that when a grant of probate is revoked, all payments bona fide made to any executor or administrator under such grant before the revocation shall, notwithstanding such revocation, be a legal discharge to the person making the same. ……, etc. Section 273 provides for the conclusiveness of probate and states that probate shall have effect over all the property and estate of the deceased throughout the State in which the same is granted and shall be conclusive as to the representative title against all debtors of the deceased, etc. The principle is brought out by the learned Author B.B Mitra in “The Indian Succession Act, 1925” (1979 Edition) at page 411, while referring to Section 273, thus:
“This section affords protection to debtors making bona fide payments to an executor or administrator before revocation of the grant. Even though letters of administration have been obtained by fraud, still so long as the grant remains unrevoked, the grantee, though a rogue and an imposter, is to all intents and purposes the administrator. He alone represents the estate of the deceased…”
5. Section 307(1) also states that an executor or administrator has power to dispose of the property of the deceased vested in him under Section 211.
6. In P.H Alphonso v. Dr. C.F De Costa, AIR 1964 Mysore 187, a Bench of this court held that revocation of the grant of the probate cannot be made retrospectively and the order of revocation must take effect from the date of application made for the purpose. At page 190, it was observed thus:
“….. The executor is competent to enter into contracts on behalf of the estate and possesses power to dispose of the property of the deceased vested in him in such manner as he thinks fit. We have also referred to the liability of the executor to be sued by a person interested in the property and intending to avoid the alienations made by him. The contracts entered into and the alienations made by an administrator are valid until they are set aside by a competent court at the instance of persons interested in the property. A retrospective revocation is not therefore contemplated by law. Any order of revocation passed under Section 263 of the Act must take effect from the date of the application made for the purpose.”
7. The ratio of the decision of the Rangoon High Court in A.B Neogi v. B.B Neogi, AIR 1938 Rangoon 43 also is to the same effect. It was held that subsequent revocation of the probate by the court would not affect the prior mortgage of the property created by the administrator on the strength of the probate granted to him. In the above circumstances, the trial court was right in rejecting the plaintiff's claim on the second item which otherwise would have disturbed the title of the second defendant.
8. However, the fact remains that the first defendant was responsible for the loss of the properly in which the plaintiff otherwise would have got ⅚th share. He is certainly entitled to seek equity from the court. The doctrine governing the owelty could be applied to the fact situation. In the first item the first defendant would be left with ⅙th share which could, as far as possible, be adjusted towards the loss of the property occasioned to the plaintiff by virtue of the sale of the second item. If still, the loss results to the plaintiff and cannot be compensated, the balance could be adjusted out of the amount remaining payable by the second defendant under the sale deed of the year 1971 under which the second defendant purchased the second item (Ex. P. 46). The trial court shall make an appropriate order in this regard in the final decree proceedings.
9. The first defendant has raised the plea of limitation. According to the first defendant, he has been in exclusive possession of the properties and the plaintiff had lost his right by lapse of time.
10. It is not possible to accept this contention because admittedly the second defendant was a co-owner. Unless the evidence is clinching and unambiguous to establish the case of ouster on the part of first defendant ousting the plaintiff from his rights, it cannot be held that the plaintiff would lose his right in the properties. The trial court is right in rejecting this contention of the first defendant. There was also a contention against the validity of the agreement under which the plaintiff obtained release of the rights of the other children of Roza Nazareth. We are in agreement with the finding of the trial court on this aspect also. No convincing argument is forthcoming as to why the said release in favour of the plaintiff should not be given effect to. Consequently the cross-objection filed by the first defendant is rejected.
11. In the result, the appeal is partly allowed. The trial court is directed to give effect to the observations made regarding the allotment of properties and the owelty to the plaintiff in the final decree proceedings without affecting the title of the second defendant.
12. No costs.