Order
1. Originally, the suit property was owned by one Mangal Chandra Ghosh. His wife is Apabala. They have three sons namely: Keshab Chandra Ghosh, Rajendra Nath Ghosh and Barid Baran Ghosh. Mangal Ghosh died on 8-1-1967. After his death, a partition came to be effected on 27-1-1967. Under that partition, the property forming a part of this civil appeal, namely demarcated 1/3 portion of land comprising .02 decimals pertaining to Khaitan No. 528 Dag Nos. 16 and 5/388 in Mouza Amtola, P.S Bishnupur, District 24-Parganas together with two shop rooms situated therein fell to share of Keshab Chandra Ghosh. Apabala died on 5-9-1973. On 9-1-1974, Keshab Chandra Ghosh sold his one-third share to the plaintiffs (the appellants). The defendant (respondent) Baidya Nath Poddar) was a tenant of the suit premises on a monthly rent of Rs 50 and he was inducted into possession by the father of Keshab Chandra Ghosh. After his purchase, a title suit No. 225 of 1974 came to be filed on the ground that the defendant is a habitual defaulter. Under notice as per Section 106 of Transfer of Property Act, on 29-3-1974 plaintiffs determined the tenancy and called upon him to vacate. He did not do so notwithstanding the fact that the notice came to be acknowledged on 30-3-1974. On these averments, a decree for khas possession and for recovery of arrears of Rs 2500 was prayed for.
2. In the written statement, it was urged that before the death of Mangal Chandra Ghosh, he had executed a registered Will under which he appointed his wife as the sole executrix. It was further provided that in case his wife died before obtaining probate, his son Barid Baran Ghosh would be the next executor. By that Will, the suit property was bequeathed to the said Apabala and his son Barid Baran Ghosh. The said Barid Baran Ghosh after the death of his mother wanted rents to be paid to him and he had obtained letters of probate in Case No. 10 of 1974 in the Court of District Delegate, 24-Parganas. The so-called partition is fictitious, fraudulent and a sham transaction. In view of Will of Mangal Chandra Ghosh, Keshab Chandra Ghosh did not acquire any right. Much less could he convey any title in view of the plaintiffs. Therefore, the suit was liable to be dismissed.
3. The learned Munsif held that in view of the Will under the partition, Keshab Chandra Ghosh did not acquire any right. Therefore, the plaintiffs acquired no better title. There was no relationship of landlord and tenant. Accordingly, the suit was dismissed.
4. An appeal was preferred to the learned Additional District Judge, 10th Court, Alipore being Title Appeal No. 834 of 1976 which was dismissed.
5. The second appeal was preferred to Calcutta High Court which also met with the same fate. Hence, the present civil appeals.
6. Before us, it is urged that the suit property had come to be purchased benami in the name of Mangal Chandra Ghosh for the benefit of his three sons. Therefore, he had no right to bequeath the property. This is the reason why the property came to be partitioned among the brothers to which Barid Baran Ghosh was also a party. If really the property belonged to Mangal Chandra Ghosh and had been validly bequeathed, he would not have partaken in the partition.
7. By obtaining probate, Barid Baran Ghosh cannot claim any title. It is well-settled in law that a Probate Court does not adjudicate on the question of title.
8. It is not open to a tenant to deny the title of landlord. It cannot be urged that Keshab Chandra Ghosh did not acquire valid title; consequently, the plaintiffs also derived no title. Such a contention is not open to him in view of the estoppel contained under Section 116 of the Evidence Act.
9. Per contra it is submitted, the plea of benami was raised only after the death of Mangal Chandra Ghosh. During his lifetime no steps were taken by the plaintiffs to establish the benami transactions. If really, therefore, Mangal Chandra Ghosh was entitled to bequeath the property in favour of Barid Baran Ghosh, the plaintiffs acquired no title.
10. No doubt the Probate Court has no jurisdiction to decide the question of title. But, the plaintiffs will have to establish their title before they can recover possession. That has not been done. In this case, the Principle of Estoppel under Section 116 of the Evidence Act will not apply since the title had not been established.
11. On a careful consideration of the above arguments, we are of the view that the case of the appellants cannot be accepted. As rightly held by the High Court under the impugned judgment, during the lifetime of Mangal Chandra Ghosh, there was not even a suggestion that the property was purchased benami in his name. By merely joining the partition deed, the title of Mangal Chandra Ghosh is not in any way affected nor does it mean that the Will will be inoperative. First of all the plaintiffs-appellants will have to establish that Keshab Chandra Ghosh acquired valid title. Nemo dat qui non habet (no person can convey a better title other than what he has) is a settled principle of law.
12. It is true that a court granting probate does not decide questions of title. But unless the plaintiffs have established their title which in this case, they have miserably failed to do, they cannot succeed. Therefore, the suit has been rightly dismissed by the courts below. Accordingly, the civil appeals will stand dismissed. No costs.