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2008 DIGILAW 1080 (CAL)

Bani Das v. Dilip Kumar Ghosh

2008-12-18

BHASKAR BHATTACHARYA, RUDRENDRA NATH BANERJEE

body2008
JUDGMENT Bhaskar Bhattacharya, J.: These two appeals were heard analogously as the subject-matters of these two appeals are, to some extent, similar. 2. We, however, first propose to deal with F.M.A. No.919 of 2008. 3. This appeal is at the instance of an applicant under Order XXI Rules 98 and 101 of the Code of Civil Procedure and is directed against Order No.177 dated April 2, 2008 passed by the learned Judge, Second Bench, City Civil Court at Calcutta, in Miscellaneous Case No.3416 of 2001, thereby dismissing the said miscellaneous case and allowing the another miscellaneous case being Miscellaneous Case No.1183 of 1989 filed by the respondent no.1 praying for police help for taking possession in execution of the decree for specific performance of contract. 4. The following facts are not in dispute: 5. The respondent no.1 entered into an agreement for purchase of the property in question with the respondent no.2 and for enforcing the said agreement, the respondent no.1 filed a suit being Title Suit No.734 of 1986 which was decreed ex parte against the respondent no.2. 6. For execution of the said decree, the respondent no.1 initiated an execution case being Title Execution Case No.91 of 1987 and in connection with that execution case, filed an application under Order XXI Rule 97 of the Code of Civil Procedure thereby giving rise to Miscellaneous Case No.1183 of 1989 for getting possession through the help of police. 7. In the said execution case, the present appellant, the wife of the judgement-debtor and a third party to the proceedings, came up with an application under Order XXI Rules 98 and 101 of the Code of Civil Procedure thereby alleging that she was not bound by the ex parte decree passed in Title Suit No.734 of 1986 against her husband and that she had independent right over the suit property to resist the execution case started by the respondent no.1. 8. The case made out by the appellant was that the suit property originally belonged to her father-in-law, namely, Sambhu Nath Das, who bequeathed the property in favour of her husband, Biswanath Das, but at the same time conferred upon her, the right to have maintenance from her husband out of the income of the said property. 8. The case made out by the appellant was that the suit property originally belonged to her father-in-law, namely, Sambhu Nath Das, who bequeathed the property in favour of her husband, Biswanath Das, but at the same time conferred upon her, the right to have maintenance from her husband out of the income of the said property. According to the appellant, on the death of her father-in-law, her husband deserted her; as a result, she filed an application for letters of administration of the said Will being L.A. Case No.48 of 2001 and ultimately, got letters of administration of the said Will. The appellant contended that she having been appointed as an administrator over the property in question, her husband had no right to enter into the agreement for sale of the property in favour of the respondent no.1 so long the legacy was transferred to him and consequently, the decree obtained by the respondent no.1 for enforcement of the said agreement for sale was not binding upon her, the administrator. In other words, according to the appellant, so long she does not assent to the administration in terms of Section 332 of the Indian Succession Act, 1925, no title accrued in favour of her husband and, thus, she, being the legal owner of the property as an administrator, had the right to resist the prayer for obtaining possession in execution of the decree. 9. The application was opposed by the respondent no.1 thereby contending that the decree in his favour was passed long before the filing of the application for letters of administration and that there was collision between the judgment-debtor and his wife and the wife had been set up by the judgment-debtor to delay the execution of the decree. The decree-holder contended that even by virtue of the Will executed by the father-in-law of the appellant, the property was given to her husband and, therefore, by virtue of the decree passed against her husband, the respondent no.1 has stepped into his position and was entitled to get possession as lawful owner of the property in execution of the decree for specific performance of contract. 10. The learned Executing Court by the order impugned in this appeal dismissed the Miscellaneous Case filed by the appellant holding that she had no independent right to resist the execution of the decree obtained against her husband. 11. 10. The learned Executing Court by the order impugned in this appeal dismissed the Miscellaneous Case filed by the appellant holding that she had no independent right to resist the execution of the decree obtained against her husband. 11. Being dissatisfied, the appellant has come up with the present appeal. 12. After hearing the learned counsel for the parties and after going through the materials on record, we find that undisputedly Sambhu Nath Das, the father-in-law of the appellant, was the owner of the property and he bequeathed the property in favour of his son, the judgment-debtor. In the Will, however, there was an observation that the judgment-debtor should maintain the appellant out of the income of the property. There was, however, no restriction of sale of property to any third party. It further appears that the agreement between the respondent no.1 and the respondent no.2 was entered into after the death of Sambhu Nath Das and even when the decree for specific performance of contract was passed, the appellant did not file any application for letters of administration. 13. The respondent no.1 put the decree into execution in the year 1987 (Title Execution Case No.91 of 1987) and the letters of administration has been granted in favour of the appellant long thereafter in L.A. Case No.48 of 2001. 14. In view of the aforesaid fact, it is clear that by virtue of letters of administration obtained by the appellant, she did not acquire any right of residence or possession in the suit property and, thus, she had no right to resist the decree for recovery of possession pursuant to sale of the property by the Executor and the legatee of the Will in favour of the respondent no.1. We have already pointed out that by the Will, no restriction was imposed upon the judgment-debtor to transfer the property. Thus, by the decree for specific performance of contract, the respondent no.1 acquired the title to the property and stepped into the shoes of the husband of the appellant. 15. As the appellant did not acquire any right to remain in possession or to evict her husband through the Will, she cannot also resist the decree for specific performance of contract obtained against her husband. Moreover, there is difference between the right of an executor and that of an administrator. 15. As the appellant did not acquire any right to remain in possession or to evict her husband through the Will, she cannot also resist the decree for specific performance of contract obtained against her husband. Moreover, there is difference between the right of an executor and that of an administrator. The executor gets his authority to deal with the property from the death of the testator and is a creature of the Will whereas the administrator gets his authority to administer the subject-matter of bequest only from the date of grant of letters of administration. (See: Crystal Developers vs. Smt. Asha Lata Ghosh reported in AIR 2004 SC 4980 ). In this case, the judgement debtor being named as executor, the property vested in him from the date of death of the testator and he had the right to enter into agreement for sale which is in consonance with the right conferred upon him by the Will even as a legatee. He, for the reason best known to him, decided not to apply for probate but at the same time, dealt with the property by entering into agreement for sale and also suffered a decree for Specific Performance of Contract. During the pendency of the Execution case arising out of such decree, the appellant, his wife, applied for letters of administration and got the letters of administration and thus, the judgement debtor, who is the Executor named in the Will and also a legatee under the Will, is bound by his own act. The grant of letters of administration in this case has not affected the transaction entered into by the Executor before grant of letters of administration as the transaction entered into by the Executor was not in breach of the trust imposed upon him by the Testator and thus, the Administrator subsequently vested with the authority to administer the estate is also bound by such transaction so long the same is not inconsistent with the terms of the Will. 16. We, therefore, find that the appellant has no independent right to resist transfer of ownership of the property by virtue of her right conferred under the Will of her father-in-law. Thus, the learned Executing Court rightly dismissed the application under Order XXI Rule 98 read with Rule 101 of the Code of Civil Procedure and allowed the application for police help filed by the respondent no.1. Thus, the learned Executing Court rightly dismissed the application under Order XXI Rule 98 read with Rule 101 of the Code of Civil Procedure and allowed the application for police help filed by the respondent no.1. The appeal is, thus, devoid of any substance and is dismissed accordingly. 17. We make it clear that we have not gone into the question whether the appellant will be entitled to enforce her claim of maintenance from her husband as conferred under the Will against the respondent no.1 as the same is beyond the scope of Order XXI Rule 97 read with Rule 101 of the Code which in the present case deals with only the right of possession of the property in question and none else. 18. In the facts and circumstances, there will be, however, no order as to costs. F.M.A. No.918 of 2008. 19. This appeal has been filed by the aforesaid appellant being dissatisfied with the Order No.26 dated April 2, 2008 passed by the learned Judge, Second Bench, City Civil Court at Calcutta, in Title Suit No.327 of 2007. By filing an independent suit being Title Suit No.978 of 2007, the appellant wanted to restrain the respondent no.1 from proceeding with eviction suits against the tenants of the properties and also from disturbing her possession. 20. In view of our aforesaid finding that with the aid of the Will of her father-in-law, the appellant acquired no right of possession to the property, we are of the opinion that the learned Trial Judge rightly found that the plaintiff had no prima facie case to go for trial and, consequently, rightly dismissed the application for temporary injunction. 21. We, thus, find no merit in this appeal and the same is dismissed. In the facts and circumstances, there will be, however, no order as to costs. Rudrendra Nath Banerjee, J.: I agree. Appeal dismissed.