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2006 DIGILAW 363 (CAL)

MAHADEB GHOSH v. STATE OF WEST BENGAL

2006-06-21

JYOTIRMAY BHATTACHARYA

body2006
Jyotirmay Bhattacharya, JJ. ( 1 ) ADMITTEDLY Amiyabala Ghosh, since deceased, was a lessee in respect of 5. 7407 cottahs of land lying at Plot No. 199 in Block- BF in Sector-l of the northern Salt Lake City extension area in the district of 24 Paraganas under the state of West Bengal. The said lease was granted by the State of West Bengal in favour of Amiyabala Ghosh, the mother of the petitioner by a registered indenture of lease dated 28th April 1982. ( 2 ) SUBSEQUENTLY, by a deed of rectification dated 14th April, 1983 executed between the parties it was clarified that rent-free land measuring 5. 2803 cottahs was leased out to the said lessee. ( 3 ) AFTER obtaining the said lease, a two-storied building was constructed in the said premises. ( 4 ) THE said Amiyabala Ghosh died testate on 12th January 2003 leaving a registered Will dated 18th May, 1999 bequeathing different portions of the said property in favour of her sons. The petitioner was appointed as an executor in the said Will. ( 5 ) AFTER the death of Amiyabala Ghosh, the petitioner being an executor appointed in the said Will, applied for grant of probate of the said Will before the learned Additional District Judge, Fast Track 3rd Court, Barrackpore, North 24 paraganas. Pursuant to the said application, probate was granted to the said will by the Learned Additional District Judge, Fast Track 3rd Court at Barrackpore on 21st June 2005. ( 6 ) AFTER obtaining probate to the said Will, the petitioner, on 27th July, 2005, submitted an application before the Joint Secretary, Urban Development department, Salt Lake branch for mutation of his name in respect of the allotment which he got from her mother by the said Will. ( 7 ) IN reply to the petitioner's said application, the Land Manager bidhannagore, Urban Development Department, Salt Lake Branch, by his letter dated 7th September, 2005 directed the petitioner to submit affidavits under the urban Land (Ceiling and Regulation) Act 1976 to be affirmed by all the beneficiaries of the Will of the deceased separately as per the prof orma enclosed thereto. ( 8 ) ON receipt of the said letter the petitioner by his letter dated 30th september, 2005 intimated the said Land Manager, Bidhannagore that the petitioner is unable to produce,such affidavit from his other co-owners individually. ( 8 ) ON receipt of the said letter the petitioner by his letter dated 30th september, 2005 intimated the said Land Manager, Bidhannagore that the petitioner is unable to produce,such affidavit from his other co-owners individually. The petitioner, however, intimated the said Land Manager that the petitioner himself can submit the said affidavit before the said Land Manager. The petitioner once again requested the said authority to apportion the said premises in terms of the Will and to mutate the name of the petitioner in respect of the apportioned portion which was given to the petitioner by his mother in the said Will. ( 9 ) IN spite of receipt of the said letter on 30th September, 2005 the concerned respondents had neither taken any step to mutate the name of the petitioner as lessee nor cared to reply to the petitioner's said letter intimating him about the fate of the petitioner's said application. ( 10 ) UNDER such circumstances, the petitioner filed this writ petition seeking appropriate reliefs. ( 11 ) MR. Ghosh, learned Advocate appearing for the State respondents, opposed the petitioner's prayer by contending, inter alia, that Amiyabala Ghosh was not the absolute owner of the said property. Mr. Ghosh contended that amiyabala was a lessee in respect of the aforesaid premises under the State of west Bengal. By producing the lease deed dated 28th April, 1982, Mr. Ghosh pointed out from Clause 7 thereof that the lessee had no right to subdivide or sublet the demised land or the building to be constructed without the consent in writing of the Government first had and obtained. Mr. Ghosh further pointed out from the said clause that the Government reserved its right to refuse its consent at its absolute discretion. ( 12 ) MR. Ghosh, thus, contended that in view of such restriction regarding sub-division of the property, the lessee had no right to bequeath different portions of the said building in favour of her sons without taking written consent from the government inasmuch as such bequeath had the effect of sub-division of the said property. ( 13 ) MR. ( 12 ) MR. Ghosh, thus, contended that in view of such restriction regarding sub-division of the property, the lessee had no right to bequeath different portions of the said building in favour of her sons without taking written consent from the government inasmuch as such bequeath had the effect of sub-division of the said property. ( 13 ) MR. Ghosh, thus, submitted that the concerned authority did not commit any illegality by not mutating the name of the petitioner in the manner as prayed for, inasmuch as grant of mutation of the portion of the building on apportionment as per the Will in favour of the petitioner will amount to subdivision of the said property which is prohibited under the terms of the said lease deed. ( 14 ) HEARD the learned Advocates of the parties. Considered the materials on record. ( 15 ) IT is true that Clause 7 of the said lease deed puts an embargo on the right of the lessee either to subdivide or sublet the demised land or the building to be constructed thereon without the consent in writing of the government first had and obtained. ( 16 ) THE lessee bequeathed different portion of her said property in favour of her different sons. It is also admitted position that no permission was obtained by the lessee to subdivide the said premises from the Government. ( 17 ) ON perusal of the said Will, it does not appear to this Court that such bequeath of different portion of the said property in favour of her different sons amounts to sub-division of the said property. By such bequeath, the testatrix gave different portion of the said premises in favour of her different sons only for the purpose of convenient enjoyment of their respective allotment without subdividing the said property. "sub-division" means creation of several independent units which can be physically separated form each other. The testatrix did not subdivide her property by the said Will by creating separate independent units which can be physically separated from each other. Different portions of the building were given to the sons for the purpose of convenient enjoyment thereof by the beneficiaries. The common areas and common facilities in the said building left to be used and enjoyed jointly by the beneficiaries. This shows that the said bequeath does not have the effect of sub-division of the said property. Different portions of the building were given to the sons for the purpose of convenient enjoyment thereof by the beneficiaries. The common areas and common facilities in the said building left to be used and enjoyed jointly by the beneficiaries. This shows that the said bequeath does not have the effect of sub-division of the said property. ( 18 ) MOREOVER, the right to bequeath such leasehold property by Will in favour of more than one person by the lessee is recognised in Clause 12 of the said lease deed. The said clause provides that in case of such bequeath in favour of more than one person, all the beneficiaries shall hold the said property jointly without having any right to partition the same by metes and bounds. ( 19 ) HERE the petitioner has not prayed for partition of the said property by metes and bounds. Neither the said property is required to be partitioned by metes and bounds for giving effect to the last wishes of the testatrix as expressed in her said Will. ( 20 ) AS such, the prayer for mutation of the name of the petitioner along with the other beneficiaries under the said Will cannot be refused by the concerned respondent for the reasons as pointed out by Mr. Ghosh. The petitioner, however, has made it clear that the petitioner is unable to submit separate affidavit from the other individual co-owners. There may be various reasons for which the other co-owners may not co-operate with the petitioner. This Court does not feel it necessary to enquire further for ascertaining the reasons for which the other co-owners refused to submit such affidavit inasmuch as such ascertainment is not at all necessary for the present purpose. ( 21 ) THIS Court is of the view that even if the other co-sharers of the petitioners do not come forward for mutating their names, still then the concerned authority is duty-bound to mutate the names of the beneficiaries as they have now become the lessee under the Government by virtue of the said Will. Such mutation will also help the Government of West Bengal (lessor) to realise the lease rent from the lessee and/or to enforce its rights and objection against the said lessees. ( 22 ) THIS Court also cannot be unmindful of the expression "lessee" which has been defined in the said lease deed itself. Such mutation will also help the Government of West Bengal (lessor) to realise the lease rent from the lessee and/or to enforce its rights and objection against the said lessees. ( 22 ) THIS Court also cannot be unmindful of the expression "lessee" which has been defined in the said lease deed itself. In the said lease deed it was mentioned that the expression "lessee" shall include her heirs executors, administrators, representatives as assigns. The expression "lessee" as defined in the said "lease deed" also makes it clear that bequeath of the leasehold property by the lessee is permissible as lessee includes his/her executor, administrator and representative. Thus, when the lessee's right to bequeath the leasehold property by Will is recognised in the lease deed, this Court does not find any justification for refusing to recognise the petitioner as lessee under the said lessor. ( 23 ) UNDER such circumstances, this Court directs the concerned authority to mutate the names of the beneficiaries as per the said Will in respect of the said premises upon notice to all the beneficiaries under the said Will. The petitioner is directed to supply the names and the complete addresses of the beneficiaries under the said Will to the concerned authority within a week from date. The entire exercise in this regard should be concluded by the concerned authority within eight weeks from the date of communication of this order. The writ petitioner, thus, stands allowed. There will be, however, no order as to costs.