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2006 DIGILAW 426 (CAL)

SHIBOPADA BHATTACHARJEE v. REKHA MUKHERJEE

2006-07-17

ARUN KUMAR BHATTACHARYA

body2006
ARUN KUMAR BHATTACHARYA, J. ( 1 ) THE twin suits viz. C. S. No. 73/88 and c. S. No. 75/88 for declaration, specific performance of contract and permanent injunction have been heard together for the sake of convenience and brevity as identical questions of law and fact are involved with the difference that the plaintiff and consideration amount in the two suits are different and whereas the former relates to western part of the building, in the latter eastern part is involved. ( 2 ) THE miniaturised version of the plaintiff is that on the representation of defendant Nos. 1 to 5 in or about June, 1980 that under the terms of a deed of Settlement dated 21. 01. 50 created by their grandfather Kalidas chatterjee, since deceased, the entire beneficial interest of premises No. 110, keshab Chandra Sen Street, Calcutta vested in them and the Trust created thereby had come to an end and they became absolute owners of the said premises since June, 1973 and were entitled to sell their right, title and interest in the premises, the plaintiffs Shibopada and Rabindranath entered into agreements in writing with them on 08. 06. 80 whereby the said defendants agreed to sell the disputed property to them at a consideration of Rs. 85,000/- and Rs. 80,000/- respectively. In pursuance of the said agreements, the plaintiffs paid a sum of Rs. 2501/- each to the defendants towards earnest money. On the request of the defendants' Advocate, the plaintiffs' Advocate returned the documents on 23. 08. 80 to the defendants' advocate to enable him to answer the requisition-on-title sent by the plaintiffs' Advocate earlier followed by a request of the plaintiffs' Advocate through letter dated 22. 09. 80 to expedite answer the requisition-on-title intimating that the plaintiffs were ready and willing to complete the deed and to pay the balance consideration money. Instead of executing and registering a Deed of Conveyance, the defendants' Advocate by letter dated 13. 10. 09. 80 to expedite answer the requisition-on-title intimating that the plaintiffs were ready and willing to complete the deed and to pay the balance consideration money. Instead of executing and registering a Deed of Conveyance, the defendants' Advocate by letter dated 13. 10. 80 informed the plaintiffs that defendant No. 6 Ramdas Chatterjee, as a Trustee of the said Deed of Settlement, had instituted T. S. 1948/80 (?) in the City Civil Court at Calcutta claiming that the said defendants were not entitled to sell, let or otherwise alienate the property as the Trust contained in the said Deed of Settlement had not extinguished and obtained an order of injunction against the said defendants from selling and/or alienating the property and that steps were being taken by the said defendants for vacating the interim order of injunction on reopening of the Court after the Puja vacation. The plaintiffs' Advocate requested the defendants', Advocate by a letter dated 01. 09. 83 to answer the requisition-on-title arid to inform the position of said T. S. No. 1948/80 followed by a further reminder dated 19. 01. 85 but to no effect. The said suit was ultimately decreed by the learned Judge, 3rd Bench, City Civil Court on 07. 08. 87 holding that the Trust created by the deed of Settlement is still subsisting and defendant Nos. 1 to 5 as beneficiaries of the Trust had no right to dispose of the disputed premises except through defendant No. 6 Ramdas Chatterjee. The said T. S. No. 1948/80 is a collusive suit where the material fact regarding the said agreement for sale was totally suppressed, the sole object being to defeat the right, title and interest of the plaintiffs under the said agreements. The above judgement and decree, which is not binding upon the plaintiffs as they were not parties to the suit, is wrong as defendant Nos. 1 to 5 are majors and soujuris and the learned judge failed to construe the purport and scope of the said Deed of Settlement. Despite reminders, defendant Nos. l to 5 wrongfully and illegally failed and neglected to perform specifically the obligation under the said agreement for sale and refused and still are continuing refusal and it is apprehended that they would sell, alienate and encumber the property in contravention of the agreement. In these circumstances, the suits were filed. Despite reminders, defendant Nos. l to 5 wrongfully and illegally failed and neglected to perform specifically the obligation under the said agreement for sale and refused and still are continuing refusal and it is apprehended that they would sell, alienate and encumber the property in contravention of the agreement. In these circumstances, the suits were filed. ( 3 ) THE suit is contended by defendant Nos. l to 5 by filing a written statement. Their case, in short, is that Kalidas Chatterjee, father of defendant No. 6 and grandfather of defendant Nos. l to 5 executed a Deed of settlement on 21. 01. 50 whereby he created a Trust in respect of his undivided interest in premises No. 66, College Street, Calcutta and also in respect of his 16 annas share in premises No. 110, Keshab Chandra Sen Street and appointed himself as the First Trustee and after his death his wife bilwabarani Debi would be Trustee for her natural life and after her death defendant No. 6 would become the Trustee. It was further directed that after the death of said settlor and his wife the Trust would stand divided and separated. The relevant provisions relating to extinguishment of the Trust in respect of Keshab Chandra Sen Street and devolution and distribution of the funds and assets thereof have been dealt with in the fourth division of first part and second division of the third part respectively of the deed. The settlor Kalidas died in 1953, his wife in May, 1961, Satidas-father of defendant nos. 1 to 5 on 25. 01. 63 and Kamala on 06. 10. 71. At the time of death of kamala neither Satidas nor Ramdas had any son or grandson born or alive. So the property of Keshab Chandra Sen Street became vested in the defendant nos. l to 5, but distribution remained suspended until 01. 06. 73 when defendant No. 5 attained majority. Immediately thereafter Ramdas made over the said Keshab Chandra Sen Street property to defendant Nos. l to 5 absolutely and issued letters of attornment in favour of all the tenants occupying the premises. Since June, 1973 the said defendants have been exercising the full ownership of the premises. In or about 1978 when the said defendants wanted to induct some tenants in the ground floor, defendant no. l to 5 absolutely and issued letters of attornment in favour of all the tenants occupying the premises. Since June, 1973 the said defendants have been exercising the full ownership of the premises. In or about 1978 when the said defendants wanted to induct some tenants in the ground floor, defendant no. 6 who himself was a tenant in respect of a portion of the said property instituted T. S. No. 1912/78 in the City Civil Court at Calcutta inter alia challenging the authority of the said defendants to induct tenants. The suit was ultimately compromised and Ramdas had to concede that the said defendants have every right to transfer the property. In or about June, 1980 the said defendants entered into an agreement for sale with the plaintiff in respect of a demarcated portion of the premises being No. 110, Keshab chandra Sen Street at a consideration of Rs. 85,000/- and received a sum of rs. 2501/- towards earnest money. Immediately thereafter defendant No. 6 ramdas instituted T. S. No. 1904/80 in the City Civil Court at Calcutta for a declaration that the Trust created by the Deed of Settlement has not yet been extinguished and he still remains a Trustee and the said defendants were not entitled to sell the property except through him, and obtained an interim order of injunction against the said defendants from selling and/or alienating the property which was duly informed by the said defendants to the plaintiff. They took all reasonable steps to vacate the order of injunction. The said T. S. No. 1904/80 was ultimately decreed on 07. 08. 87 holding that ramdas still remains the Trustee and the defendants have no right to sell the property except through him. The defendants preferred an appeal being fat No. 4012/87 before this Court which is still pending. In view of the said decree, the above defendants were not in a position to complete the sell but they are ready and willing to complete the transaction as soon as the decree is set aside. On or about 05. 01. 90 defendant No. 6 Ramdas died, and thereafter his widow Smt. Jyotsna Chatterjee filed T. S. No. 724/93 in the City Civil court at Calcutta against the said defendants inter alia praying for declaration that she was the sole Trustee in respect of the disputed premises and for injunction which was decreed on 30. 04. On or about 05. 01. 90 defendant No. 6 Ramdas died, and thereafter his widow Smt. Jyotsna Chatterjee filed T. S. No. 724/93 in the City Civil court at Calcutta against the said defendants inter alia praying for declaration that she was the sole Trustee in respect of the disputed premises and for injunction which was decreed on 30. 04. 96 and the said defendants were permanently restrained from transferring, alienating or parting with possession of the disputed premises and from inducting any tenant and effecting any addition or alteration except through her. The appeal being fat No. 1985/96 subsequently renumbered FA No. 136/97, preferred by the said defendants is still pending, and after the death of Jyotsna Chatterjee on or about 15. 07. 96 her two daughters Smt. Srila Banerjee and Smt. Mitra banerjee were substituted in her place. That the said T. S. No. 1904/80 is collusive is denied. The plaintiff had due notice that the defendants had refused performance of the agreement for sale in or about October, 1980. Accordingly, the suits merit dismissal. ( 4 ) MR. Chowdhury, learned Counsel for the plaintiff, on drawing Courts' attention to the defence pleadings submitted that when the main allegations of the plaint are admitted by the defendants who, as specifically averred, are ready and willing to perform their part of obligation under the agreement for sale but for the judgement and decree passed in T. S. No. 1904/80 brought by defendant No. 6 and T. S. No. 724/93 brought by his wife Jyotsna chatterjee, the Court can pass a judgement on admission under Order 12 rule 6 read with Order 8 Rule 5 CP Code particularly when the trusteeship which was personal in nature extinguished on the death of defendant No. 6 ramdas and his wife Jyotsna who expired on 05. 01. 90 and 15. 07. 96 respectively and the appeals being FAT No. 4012/87 and FA No. 136/97 abated though the two daughters of Jyotsna viz Smt. Srila Banerjee and smt. Mitra Banerjee were subsequently substituted in place of Jyotsna on the prayer of the defendants. Mr. 01. 90 and 15. 07. 96 respectively and the appeals being FAT No. 4012/87 and FA No. 136/97 abated though the two daughters of Jyotsna viz Smt. Srila Banerjee and smt. Mitra Banerjee were subsequently substituted in place of Jyotsna on the prayer of the defendants. Mr. Roy, learned Counsel for the defendants, on the other hand, submitted that though the facts and documents are admitted, the suit is not maintainable on two-fold grounds viz (1) there is no averment of cause of action and the date when it arose, in the plaint as required under Order 7 Rule 1 (e), C. P. Code and (2) limitation for specific performance of contract under Article 54 of the Limitation Act is three years from the date fixed for performance or if no such date is fixed when the plaintiff has notice refusing performance, and since the defendants' advocate by letter dated 13. 10. 80 intimated everything to the plaintiffs advocate which by necessary implication may be construed to be refusal on account of legal bar, the suit having been instituted on 05. 02. 88 i. e. long after three years is absolutely barred by limitation. ( 5 ) TO start with, the number of suit instituted by defendant No. 6 ramdas Chatterjee, since deceased, is T. S. No. 1904/80 instead of T. S. No. 1948/80 as wrongly mentioned by the plaintiff in the body of the plaint as also prayer (a ). ( 6 ) NEVERTHELESS, so far as the first contention of the learned Counsel for the defendants is concerned, indubitably it is imperative that the facts constituting the cause of action and when it arose should be stated in the plaint, as required under clause (e) of Rule 1 of Order 7 of the Code. "cause of action" means the bundle of facts which it should be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgement of the Court, as was observed in the case of N. N. Majithia vs. State of maharashtra, reported in AIR 2000 SC 2966 . "cause of action" means the bundle of facts which it should be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgement of the Court, as was observed in the case of N. N. Majithia vs. State of maharashtra, reported in AIR 2000 SC 2966 . In the restricted sense it means the circumstances forming the infraction of the right or the immediate occasion for the action, whereas in the wider sense it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but the infraction coupled with the right itself, as was held in the case of Rajasthan High Court Advocates Association vs. Union of India, reported in AIR 2001 SC 416 . Here, a glance to different paragraphs of the plaint will reveal that such facts constituting the cause of action have clearly been borne out there, and when the nucleus of the requirement is averred in the plaint the question of rejection of the plaint or dismissal of the suit on that ground is out of the way. As regards date of accrual of cause of action, in paragraphs 10 to 12, 16 to 18 and 20 to 23 of the plaint it has been stated in short that despite letter dated 01. 09. 83 followed by reminder on 19. 01. 85 by the plaintiff's Advocate, the defendants' Advocate did not answer the requisition-on-title nor informed the progress of T. S. No. 1904/80 instituted by defendant No. 6 nor took any step for vacating the interim order of injunction. The said suit is a collusive one and the judgement and decree dated 07. 08. 87 passed in the said suit is wrong, as defendant Nos. 1 to 5 who are holders of beneficial interest in the property were majors and soujuris and as such defendant No. 6 should not have been regarded as a Trustee, for which the plaintiff is entitled to a decree that the said judgement and decree is erroneous and not binding upon the plaintiff. Despite insistence defendant nos. 1 to 5 have wrongfully and illegally failed and neglected to perform the obligation under the agreement for sale and refused to do so and are still continuing such refusal. Despite insistence defendant nos. 1 to 5 have wrongfully and illegally failed and neglected to perform the obligation under the agreement for sale and refused to do so and are still continuing such refusal. Though no date of cause of action as such has been mentioned in the plaint, a bare reading of the above fact leads to suggest by necessary implication that such date is the date of judgement and decree dated 07. 08. 87 since, according to the plaintiff's contention, taking advantage of the alleged collusive decree the said defendants were trying to avoid performance of their obligation under the agreement. As a matter of law, failure to state the date when cause of action arose is of little consequence and would not disentitle a plaintiff from seeking relief. In this connection, reference may be made to the case of Kuldeep Singh vs. Ganpath Lal, reported in JT 1995 (9) SC 157 where it was held that incorrect mention of the date of cause of action does not mean that the respondent must be non-suited on that ground. The object underlying Order 7 Rule l (e) which requires that the plaint shall contain the particulars about the facts constituting the cause of action and when it arose, is to enable the Court to find out whether the plaint discloses the cause of action because the plaint is liable to be rejected under Order 7 Rule 1 of CP Code if it does not disclose the cause of action. The purpose behind the requirement that the plaint should indicate when the cause of action arose is to help the Court in ascertaining whether the suit is not barred by limitation. Any error on the part of the plaintiff in indicating the date on which the cause of action arose would be of little consequence if the cause of action had arisen on the date on which the suit was filed and the suit was within limitation from the said date. Accordingly, the above first contention of the learned Counsel for the defendants does not stand. ( 7 ) IN regard to the second contention above, it has been provided in the agreement that the purchase would be completed within three months from the date of delivery of title deeds by the defendants to the Advocate of the plaintiff. Accordingly, the above first contention of the learned Counsel for the defendants does not stand. ( 7 ) IN regard to the second contention above, it has been provided in the agreement that the purchase would be completed within three months from the date of delivery of title deeds by the defendants to the Advocate of the plaintiff. In view of the injunction in the said T. S. No. 1904/80 there is nothing to indicate that the title deeds were ever delivered by the defendants to the Advocate of the plaintiff, and accordingly the first part of section 54 of the Limitation Act is not attracted. As regards the second part, it has been contended by the defendants in paragraph 6 of their pleadings that the plaintiff had due notice and knowledge about refusal of performance of the agreement for sale by the defendants in or about October, 1980. By the said letter dated 13. 10. 80 addressed to the plaintiffs Advocate, the defendants' advocate informed about institution of T. S. No. 1904/80 by Ramdas chatterjee and obtaining an order of an interim injunction by him restraining the said defendants from alienating the premises by sale, lease or otherwise, taking necessary steps by the defendants for vacating the order of injunction on the reopening of the Court after Puja Vacation and sending of answer the requisition-on-title after the order of injunction is vacated with a request to bear with the defendants and to co-operate with them in the matter. The said letter in no way can be construed to be refusal on the part of the defendants to perform their obligation under the agreement. Accordingly, the question of limitation from the above date 13. 10. 80 does not arise. Incidentally, it may be mentioned that in sub-paragraph (xi) of paragraph 3 of their pleadings, readiness and willingness on the part of the defendants to perform their obligation under the agreement but for the judgement and decree in T. S. No. 1904/80 has been specifically averred. ( 8 ) MR. Roy further contended that in view of the judgement and decree dated 07. 08. 87 passed in T. S. No. 1904/80 restraining the defendants permanently from transferring the disputed premises by themselves and similar judgement and decree dated 30. 04. ( 8 ) MR. Roy further contended that in view of the judgement and decree dated 07. 08. 87 passed in T. S. No. 1904/80 restraining the defendants permanently from transferring the disputed premises by themselves and similar judgement and decree dated 30. 04. 96 passed in T. S. No. 724/93 restraining the defendants permanently from transferring, alienating or parting with possession of the disputed premises except through the plaintiff as sole Trustee, no decree in the present two suits can be passed directing the defendants to execute the Deed of Conveyance in terms of the agreements for sale until the said judgements and decrees are set aside in appeals. Mr. Chowdhury submitted that since trusteeship is personal in nature which extinguished on the death of Trustees Ramdas Chatterjee and thereafter his wife Jyotsna Chatterjee and it was virtually admitted by the defendants in their petition for substitution in place of Jyotsna Chatterjee, the said judgements and decrees have become non est and there is no legal impediment in passing the decrees for specific performance of contract. ( 9 ) SECTION 70 of the Indian Trusts Act, 1882 provides that the office of a trustee is vacated by his death or by his discharge from his office. A Trustee may be discharged from his office under section 71 of the said Act on any of the following ways: (a) by the extinction of the trust; (b) by the completion of his duties under the trust; (c) by such means as may be prescribed by the instrument of trust; (d) by appointment under this Act of a new trustee in his place; (e) by consent of himself and the beneficiary, or, where there are more beneficiaries than one, all the beneficiaries being competent to contract; or (f) by the Court to which a petition for his discharge is presented under the Act. ( 10 ) A trust is extinguished under section 77 of the Act on any of the following ways: (a) when its purpose is completely fulfilled; or (b) when its purpose becomes unlawful; or (c) when the fulfilment of its purpose becomes impossible by destruction of the trust property or otherwise; or (d) when the trust, being revocable, is expressly revoked. ( 11 ) THE expression "otherwise" in clause (c) above covers a case where the Trust property is not available for the fulfilment of its purpose e. g. where all the beneficiaries under the Trust have validly transferred their interests resulting in the extinction of the Trust. ( 12 ) IN the first part of the Deed of Settlement it has been provided that the Trust will subsist till the happening of all the events 1 to 4 described therein, after the death of the settlor and his wife. The first event in the deed was the attainment of majority of the youngest daughter of Satidas and Kamala, unless all of them were married earlier to that. The second condition was the attainment of majority of the son of the youngest of the sons of Satidas and Kamala, if there be any. The third condition was the death of both Satidas and Kamala, and the fourth or last condition is the distribution of the Trust property amongst the beneficiaries in the manner as laid down in the second division of the third part of the said deed. ( 13 ) SATIDAS and his wife Kamala who died in 1963 and 1971 respectively left behind the daughters - defendant Nos. 1 to 5 and no male issue. Defendant no. 5 attained majority on 01. 06. 73. ( 14 ) REGARDING management and distribution of the Trust property, as provided in the deed, Kamala would get non-transferable life interest in 'kha' schedule property and after her death the son or grandson of Satidas, if alive, would get the property in absolute interest. If no son or grandson by the son of Satidas is alive then the son or grandson, if alive, of Ramdas will get the property in absolute interest. If Ramdas was dead by that time and no son or grandson by the son of either Satidas or Ramdas is alive, then the property will vest in absolute interest on the defendants i. e. daughters of satidas. ( 15 ) THE determinant factor in this case is not the extinguishment of the trust but whether there is any legal impediment in execution of the Deed of conveyance by the defendant Nos. 1 to 5 in favour of the plaintiff in pursuance of the agreement for sale, the answer to which is obviously in the negative, as will presently disclose. 1 to 5 in favour of the plaintiff in pursuance of the agreement for sale, the answer to which is obviously in the negative, as will presently disclose. ( 16 ) THE relevant portion of the order passed in T. S. No. 1904/80 brought by Ramdas, on 07. 08. 87 runs as follows: ". . . The plaintiff's right as a Trustee in respect of the disputed premises is hereby declared. It is further declared that the defendants have no right to transfer the disputed premises except through the plaintiff as a Trustee. The defendants are permanently restrained from transferring the disputed premises by themselves". Similarly, the relevant portion of the order passed in T. S. No. 724/93 brought by Jyotsna, on 30. 04. 96 is as under : ". . the plaintiff do get a decree declaring that she is the sole Trustee in respect of the suit premises specified in the schedule of the plain in terms of the Deed of Settlement dated 21. 01. 50 executed by Kalidas chatterjee and the defendants are permanently restrained from transferring, alienating or parting with possession of the suit premises and from inducting any tenant and from effecting any addition and alterations in the suit premises except through the plaintiff as sole trustee". ( 17 ) ON reading the first order as above, it stands that the defendants are restrained permanently from transferring the disputed premises by themselves except through the plaintiff as a trustee. Similar is the result of construction in respect of the second order. When the office of the said two trustees was vacated by their death under the provision of section 70 of the trusts Act, the question of transferring the property by the defendants through the said Trustees, since deceased, no longer arises. Incidentally, it may be mentioned that so far as the fourth condition regarding settlement of accounts and distribution of the Trust properties amongst the beneficiaries is concerned, the liability of settlement of accounts and distribution of assets amongst the beneficiaries ceased on the death of Trustees Ramdas and thereafter his wife Jyotsna. A document has to be construed in such a way so as to be meaningful so that it does not lead to an absurdity thereby frustrating the intention of the author. Accordingly, when the absolute interest of the property vested in defendant Nos. A document has to be construed in such a way so as to be meaningful so that it does not lead to an absurdity thereby frustrating the intention of the author. Accordingly, when the absolute interest of the property vested in defendant Nos. 1 to 5, there is no legal impediment in execution of the Deed of Conveyance by them in favour of the plaintiff in terms of the agreement for sale. ( 18 ) THE plaintiff has asked for the following reliefs: (a) declaration that the judgement and decree dated 7th August, 1987 passed in Title Suit No. 1948/80 (?) by the learned Judge, 3rd Bench, City civil Court at Calcutta is wrong and not binding on the plaintiff ; (b) decree for specific performance of the agreement for sale dated 8th june, 1980; (c) alternatively and in any event it is held that defendant No. 6 is a person entitled to execute and/or register any such conveyance in terms of the said Deed of Settlement dated 21st January, 1950 or otherwise, a direction upon defendant No. 6 to execute and register such conveyance in any form as may be prescribed by this Court; in default of the said defendant executing or registering any such conveyance, the Registrar, original Side of this Court be directed to execute and register the same for and on behalf of the said defendant; (d) perpetual injunction restraining the defendants by themselves and their servants, agents and assigns from selling, alienating, encumbering and/or letting out the said property to any person other than the plaintiff; (e) receiver; (f) costs; (g) such further or other reliefs. ( 19 ) IN regard to prayer (a) above, since the plaintiff was not a party to the said suit and it is the subject-matter of appeal before this Court, such prayer cannot be granted. As regards prayer (c), since defendant No. 6 has expired, such prayer is redundant. ( 20 ) IN the premises, in the light of the above discussion, both the suits being C. S. No. 73/88 and C. S. No. 75/88 succeed. ( 21 ) ACCORDINGLY, both the aforesaid suits be decreed with costs. The plaintiff shibopada Bhattacharjee and plaintiff Rabindranath Mitra do get a decree for specific performance of the agreement for sale dated June 8, 1980 against defendant Nos. 1 to 5. ( 21 ) ACCORDINGLY, both the aforesaid suits be decreed with costs. The plaintiff shibopada Bhattacharjee and plaintiff Rabindranath Mitra do get a decree for specific performance of the agreement for sale dated June 8, 1980 against defendant Nos. 1 to 5. The said plaintiffs Shibopada Bhattacharjee and rabindranath Mitra are directed to deposit the balance consideration amount of Rs. 82,499/- and Rs. 77,499/- respectively within a period of thirty days from date, failing which the concerned suit/suits, as the case may be, shall stand dismissed. On such deposit being made within the aforesaid period, defendant Nos. 1 to 5 are directed to execute and register the Deed of conveyance in terms of the agreement for sale dated June 8, 1980 in favour of the aforesaid plaintiff Shibopada Bhattacharjee and plaintiff Rabindranath mitra at the cost of the aforesaid plaintiffs within a period of thirty days thereafter. If the said defendant Nos. 1 to 5 fail to execute and register the deed within the period stipulated above, learned Registrar, Original Side of this Court shall execute and register the deed within a period of four weeks thereafter for and on behalf of aforesaid defendant Nos. 1 to 5. Suits succeed with directions.