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2009 DIGILAW 446 (CAL)

Subal Chandra Maity v. Usha Banerjee

2009-06-26

BHASKAR BHATTACHARYA, PRASENJIT MANDAL

body2009
Judgment BHASKAR BHATTACHARYA, J. :- This first appeal is at the instance of the defendants in a suit for declaration and injunction and is directed against the judgment and decree dated 12th May. 2004 passed by the learned Trial Judge. Tenth Bench, City Civil Court at Calcutta. in Title Suit No. 1271 of 2001 thereby decreeing the said suit in part. 2. Being dissatisfied, the defendants have come up with the present first appeal. 3. The respondents before us filed in the City Civil Court at Calcutta a suit being Title Suit No. 1271 of 2001 thereby praying for declaration that the plaintiffs were the absolute owners of three garages including one stable on the ground floor of premises Nos. 131-A and 131-B. Akhil Mistry Lane, Calcutta-9 and were entitled to use and enjoy the said property without any interference and interruption of ingress and egress and for permanent injunction restraining the defendants their men and agents from disturbing or interfering with the possession of the plaintiffs of those properties as mentioned above. 4. The case made out by the plaintiffs may be summed up thus: ". a) One Sarada Sundari Devi, the paternal grandmother of the plaintiffs, was the absolute owner elf the entire premises Nos. 131-A and 131-B. Akhil Mistry Lane. During her lifetime: 'She executed a deed of gift dated 21st April. 1923 by which she allotted to her son" namely, Panchu Gopal Banerjee, since deceased, the father of the plaintiffs, three garages including one stable which is the subject-matter of the suit. The remaining portion of the premises was allotted to her only daughter, viz. Smt. Kali Dassi Devi for life and after her death, absolutely to the legal heirs of the said Kali Dassi Devi. b) On the death of Kali Dassi Devi, Sri Samaresh Chandra Mukherjee, Sikharesh Chandra Mukherjee and Sunilesh Chandra Mukherjee, her three sons, became the absolute owners of the remaining portion of the premises and the three garages including the stable devolved upon Panchu Gopal Banetjee and ultimately, upon the plaintiffs and thus, the plaintiffs became the absolute owners of those three garages including the stable. c) The plaintiffs were in possession of those three garages but recently the defendants who were subsequent purchasers from Dr. Anil Misra and others, started creating disturbance in possession of the plaintiffs in the three garages and hence, the suit was filed. 5. c) The plaintiffs were in possession of those three garages but recently the defendants who were subsequent purchasers from Dr. Anil Misra and others, started creating disturbance in possession of the plaintiffs in the three garages and hence, the suit was filed. 5. The suit was contested by the defendants by filing written statement thereby denying the material allegations made in the plaint and the defence of the defendants may be summed up thus: The defendants admitted that the paternal grandmother of the plaintiffs was the original owner of the property and that she executed the deed of gift mentioned in the plaint and relied upon the said deed of gift. According to the defendants, the deed itself would show that the entire property was given to the daughter of the original owner, the predecessor-in-interest of the defendants but in respect of two garages on the ground floor, only the right of enjoyment was given to Panchu Gopal Banetjee and his sons provided they paid one-third of the corporation tax of the entire building to Kali Dassi Devi or her heirs for such occupation. It was further stated that by virtue of the said deed, no right, title and interest accrued in favour of Panchu Gopal Banerjee or his heirs but only a licence devolved and that too, on fulfillment of certain conditions. The plaintiffs or their predecessor having failed to pay such amount either to Kali Dassi Devi or to her sons or the subsequent purchasers, they have no right, title and interest in the two garages. 6. At the time of hearing of the suit, one of the plaintiffs alone gave evidence in support of the case while four witnesses were examined on behalf of the defendants. 7. The deed of 1923 executed by the original owner was also marked exhibit. 8. The learned trial Judge, as indicated earlier, by the judgment and decree impugned herein. decreed the suit in part thereby declaring that the plaintiffs were entitled to use and enjoy the two garages on the ground floor of premises Nos. 131-A and 132-B, Akhil Mistry Lane and the defendants were permanently restrained from disturbing and interfering with the possession of the plaintiffs in those two garages. 9. Being dissatisfied, the defendants have come up with the present appeal. 10. Mr. 131-A and 132-B, Akhil Mistry Lane and the defendants were permanently restrained from disturbing and interfering with the possession of the plaintiffs in those two garages. 9. Being dissatisfied, the defendants have come up with the present appeal. 10. Mr. Ghosh, the learned senior advocate appearing on behalf of the appellant, has made threefold submission in support of this appeal. 11. First. Mr. Ghosh has contended that a plain reading of deed of gift of the year 1923 indicates that absolute title to the entire house was given in favour of the daughter of the donor and after giving such absolute title, the conferment of occupational right in the two garages in favour of the son of the donor and his heirs was illegal and in violation of the provision contained in Section 11 of the Transfer of Property Act. 12. Secondly. Mr. Ghosh contends that even if we assume for the sake of argument that such right was given, the same was conditional and sole witness for the plaintiffs having admitted that neither their father or the plaintiffs ever paid the one-third of the corporation tax of the entire building. they had lost their right even to occupy the two garages. 13. Lastly, Mr. Ghosh contends that a licence on payment of fees is terminable after the lifetime of original grantor and the grantee and the same is not inheritable and therefore, the present plaintiffs had no right to inherit the licence granted in favour of their father by the deed of the year 1923. 14. Mr. Ghosh. Therefore, contends that the learned Trial Judge erred in law in granting a decree for declaration of title in respect of two garages and for permanent injunction in respect of those two garages by totally misreading the contents of deed. 15. None appears on behalf of the respondents at the time of hearing. 16. Therefore, the question that falls for determination in this appeal is whether the learned trial Judge was justified in granting the decree in part as mentioned above. 17. After hearing the learned counsel for the appellant and after going through the deed of gift of the year 1923, we find that on a plain reading of the deed of gift the intention of the donor was clear. 17. After hearing the learned counsel for the appellant and after going through the deed of gift of the year 1923, we find that on a plain reading of the deed of gift the intention of the donor was clear. She intended to transfer title of the entire building in favour of her daughter for life and thereafter, to the three sons of the said daughter absolutely with a condition that in respect of two garages including the stable, if those grandsons in future purchased any couch, her son or his heirs would have no right in the stable. So far the two garages are concerned, if the son or his heirs were agreeable to pay one third of the prevailing corporation tax in respect of the entire building and at the same time, they were also prepared to maintain the two garages in good condition, the son of the donor or his sons, after his death, would have the right of enjoyment of those two garages. 18. We are unable to accept the contention of Mr. Ghosh, the learned advocate for the appellant, that the creation of conditional right of enjoyment in the two garages are altogether void and are to be ignored being in violation of Section 11 of the Transfer of Property Act. To appreciate the said question, Section 11 of the said Act is quoted below : "11. Restriction repugnant to interest created. - Where, on a transfer of property, an interest therein is created absolutely in favour of any person, but the terms of the transfer direct that such interest shall be applied or enjoyed by him in a particular manner, he shall be entitled to receive and dispose of such interest as if there were no such direction. Where any such direction has been made in respect of one piece of immovable property for the purpose of securing the beneficial enjoyment of another piece of such property, nothing in this section shall be deemed to affect any right which the, transferor may have to enforce such direction or any remedy which he may have in respect of a breach thereof. 19. In order to apply Section 11 to a particular transaction, the first and foremost condition is that there must, be creation of absolute interest in favour of a person. 19. In order to apply Section 11 to a particular transaction, the first and foremost condition is that there must, be creation of absolute interest in favour of a person. If such absolute interest is created in favour of a person, no further restriction can be imposed regarding the manner of user or enjoyment of such property. For instance, if by a deed of transfer absolute right, title and interest are created in favour of a person, after creation of such interest. the transferee cannot be restrained from selling or transferring the property nor can such transferee be directed to use the property only for a particular purpose desired by the transferor. If such a restriction is created. the same should be treated to be void. In the case before us if we read the deed as a whole, it will appear that by the deed itself, the donor has given the interest in favour of her daughter, the remainder in favour of the three sons of the said daughter and right of enjoyment of a portion of the building in favour of her son and his heirs on specified condition. Therefore. all those persons are beneficiaries in the deed and the creation of right of enjoyment of garages cannot be ignored as the same is conferred simultaneous with the creation of title in favour of the grandsons through the daughter. Therefore, Section 11 cannot have any application. But in a case, where the deed itself creates simultaneous rights to different persons of different nature in a specific portion thereof, all the lawful rights so created must be enforced. For instance, by a deed, a donor can gift a portion to his elder son and another portion to his younger son. Therefore, a person by a deed can even give absolute title to garages to his son and the remaining portion of the building to his daughter. In case of apparent discrepancy, an attempt should always be made to read the two parts of the document harmoniously, if possible; it is only when this is not possible, e.g. where an absolute title is given in clear and unambiguous terms and the later provisions trench on the same, that the later provisions have to be held to be void. (See : Ramkishorelal v. Kamalnarayan. reported in AIR 1963 SC 890 ). 20. (See : Ramkishorelal v. Kamalnarayan. reported in AIR 1963 SC 890 ). 20. In this case, there is no difficulty in gathering' the real intention of the donor and we hold that creation of right of enjoyment in respect of the garages in favour of the son on certain conditions cannot be said to be an encroachment on the absolute right of the daughter's sons as title to the property was conferred subject to such right in the garages and the donee accepted such condition. We, thus, find no substance in the first contention of Mr. Ghosh. 21. We now propose to deal with the second and third point raised by Mr. Ghosh as those are interlinked. 22. The right of enjoyment of the two garages on payment of one-third of the corporation tax of the building with further condition of maintaining the two garages in good condition, in our opinion, cannot come within the purview of "lease" within the meaning of Section 105 of the Transfer of Property Act simply because the deed was not a bilateral registered document and at the same time, the person, in whose favour such right was created, has not accepted the terms of the alleged lease by making payment of any such amount. Therefore, a simple licence was created in respect of those two garages on payment of licence fees without creating any interest in the land. The moment we hold that the right created in favour of the son of the donor was that of licensee on payment of specific licence fees, the same is not inheritable and the right that was created in favour of the son of the donor could not be inherited by his sons. Therefore, on the death of Panchu Gopal Banerjee, the son of the donor, the conditional licence came to an end. The plaintiffs, therefore, are not entitled to get any declaration of the title in respect of the suit property nor can they be even declared as a licensee in respect of the two garages. 23. However, we find that the plaintiffs are in possession of one of the garages where they have kept a car and are in settled possession of the said garages although by such possession no title accrued in their favour. 23. However, we find that the plaintiffs are in possession of one of the garages where they have kept a car and are in settled possession of the said garages although by such possession no title accrued in their favour. They having claimed title through the deed of the year 1923 plea of adverse possession is not tenable as they have not mutated their name in the Corporation by asserting possession adverse to the interest of the lawful owner. However, as held by the Apex Court in the case of Rame Gowda (D) by L.Rs. v. M. Varadappa Naidu reported in AIR 2004 SC 4609 even a lawful owner can be injuncted at the instance of a person having no right but in settled possession from taking forcible possession. The following observations are relevant: "It is thus clear that so far as the Indian law is concerned the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force. 24. We, thus, set aside the judgment and decree passed by the learned trial Judge and modify those by merely restraining the defendants from taking forcible possession of one of the garages where they have kept their car. 24. We, thus, set aside the judgment and decree passed by the learned trial Judge and modify those by merely restraining the defendants from taking forcible possession of one of the garages where they have kept their car. We further hold that the dated of the year 1923 did not confer any right in the land or the garages in favour of the son of the donor or his heirs but was a mere licence on payment of licence fees which has come to an' end, first for non-compliance of the conditions, and secondly, on the ground that the licence is not heritable. The plaintiffs being not in possession of the other garages than the one where they have kept their car, the suit is dismissed in respect of those two garages. 25. In the facts and circumstances, there will be, however, no order as to costs. 26. I agree. Order accordingly.