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2011 DIGILAW 1420 (CAL)

Sunil Kumar Banerjee v. Felu Ram Guin

2011-11-15

TARUN KUMAR GUPTA

body2011
JUDGMENT Tarun Kuamr Gupta 1. THE defendant is the appellant against a judgment of affirmation. The respondent filed the suit for eviction alleging that defendant was a monthly tenant in respect of suit premises under original landlady Smt.Charu Bala Dasi. It is further case that Charu Bala Dasi dedicated the suit property to the deity Sree Sree Gopal Gobinda Jiew Thakur and appointed plaintiff as Sebait of the deity by executing a will dated 23rd January, 1975. Said will was duly probated in case No. O. S. 17 of 1976 and said judgment was affirmed by the Hon"ble Court in F. A. No.50 of 1980. The plaintiff was appointed as receiver of the estate of the deity by the Hon"ble High Court vide Order dated 21st of April, 1980 in F. A. No.50 of 1980 and accordingly plaintiff filed the suit for eviction against defendant /tenant on the ground of default, violating the provisions of clauses (m) (o) (p) of Section 108 of the Transfer of Property Act after giving statutory notice. 2. THE defendant contested said suit by filing written statement followed by additional written statement denying material allegations of the plaint. His specific case was that he was inducted as a tenant in the suit premises by original owner Smt. Charu Bala Dasi who executed deed of trust in respect of the suit property in favour of deity Sree Sree Gopal Gobinda Jiew Thakur in the year 1972 but said trust deed was revoked and cancelled by executing one registered deed in 1974. The plaintiff was appointed as sebait of said deity on the strength of one unregistered will dated 23rd January, 1975 executed by Charu Bala Dasi, which was duly probated. However, later on it was found that Charu Bala Dasi executed her last will on 12th of February, 1975 bequeathing the suit property in favour of her husband Lal Mohan Laha who later on executed one will in favour of the defendant in respect of the suit property. The defendant has filed a probate case being No.412 of 1996 relating to the last will of Charu Bala Dasi in favour of her husband Lal Mohan Lala and also filed probate case being No.8 of 1990 in respect of the will executed by Lal Mohan Laha in favour of the defendant. The defendant has filed a probate case being No.412 of 1996 relating to the last will of Charu Bala Dasi in favour of her husband Lal Mohan Lala and also filed probate case being No.8 of 1990 in respect of the will executed by Lal Mohan Laha in favour of the defendant. The defendant also filed one case being No.12 of 1998 for revocation of the grant of probate of will dated 23rd of January, 1975 executed by Charu Bala in favour of plaintiff. In view of the subsequent will of Charu Bala in favour of her husband followed by the will executed by Lal Mohan in favour of defendant, the defendant became owner of the suit property and the suit was liable to be dismissed. 3. IT appears that the suit was decreed on contest in the Trial Court by a judgment dated 12th of March, 1992 against which an appeal being Title Appeal No.87 of 1992 was preferred by this defendant. The judgment and decree dated 12th of March, 1992 was set aside by the Appeal Court and remanded the suit for retrial after giving the opportunities to the parties to amend the pleadings and to adduce additional evidence on all issues. There was further direction for framing the specific issue on the point of relationship of landlord and tenant between the parties and also for giving opportunities to the defendant to make payment of arrear of rent within one month from the date of determination of the same by the learned Trial Court. Accordingly, there were amendment of pleadings and further adducing of evidence. Learned Trial Court held by Order No.148 dated 9th January, 2004 that there was relationship of landlord and tenant between the parties and gave opportunity to defendant to make payment of arrear of rent amounting to Rs. 32, 387/- within one month there from. As defendant did not deposit said arrear of rent, his defence against delivery of possession was struck off under Order No.152 dated 30th April, 2004. Ultimately, an eviction decree was passed against the defendant on 2nd of April, 2005. The defendant preferred an appeal being Title Appeal No.26 of 2005 which was also dismissed on contest vide the judgment and decree dated 17th of September, 2005. Hence is this second appeal. 4. Ultimately, an eviction decree was passed against the defendant on 2nd of April, 2005. The defendant preferred an appeal being Title Appeal No.26 of 2005 which was also dismissed on contest vide the judgment and decree dated 17th of September, 2005. Hence is this second appeal. 4. SRI S. P. Roy Chowdhury, learned advocate for the appellant/defendant, has submitted that original owner Charu Bala Dasi executed a deed of trust dated 15th of December, 1972 dedicating the suit property to the deity of Sree Sree Gopal Gobinda Jiew Thakur by divesting herself from the ownership. He has further submitted that deed of revocation dated 3rd of December, 1974 executed by Charu Bala Dasi was invalid as the deed of trust was acted upon and no power of revocation was reserved in said deed of trust dated 15th of December, 1972. According to Mr. Roy Chowdhury as deed of cancellation dated 3rd of December, 1974 was not a valid document and the deed of trust dated 15th of December, 1972 continued to be valid one, Charu Bala Dasi had no authority to bequeath the suit property through a will dated 23rd of January, 1975 in favour of the plaintiff and that in spite of probate of said will plaintiff did not acquire any title in suit property and hence the suit filed by the plaintiff claiming himself as owner landlord should have been dismissed by learned Lower Courts. In this connection he has submitted that learned Lower Courts made wrong interpretation of Clause 21 of the deed of trust dated 15th of December, 1972. According to Mr. Roy Chowdhury, the settler Charu Bala Dasi under said Clause 21 of the deed of trust dated 15th of December, 1972 reserved right of alteration to her as trustee as well as to the subsequent trustees and that no power of cancellation was reserved. According to Mr. Chowdhury under said Clause 21 the power which was reserved was written in Bengali "Kebalmatra Uha Radh Badal Karibar Khamata Rahila". According to Mr. Roy Chowdhury "Radh Badal" means change and not cancellation, and that learned Lower Courts wrongly interpreted said exrpession as power of cancellation as well as change. Mr. According to Mr. Chowdhury under said Clause 21 the power which was reserved was written in Bengali "Kebalmatra Uha Radh Badal Karibar Khamata Rahila". According to Mr. Roy Chowdhury "Radh Badal" means change and not cancellation, and that learned Lower Courts wrongly interpreted said exrpession as power of cancellation as well as change. Mr. Roy Chowdhury has further contended that as deed of trust dated 15th of December, 1972 remained as it is, in spite of execution of said deed of cancellation dated 3rd of December, 1974, there was no question of passing any title to the respondent/plaintiff on the strength of alleged will dated 23rd of January, 1975 executed by Charu Bala in favour of the plaintiff though the same was probated as per law. Mr. Aniruddha Chatterjee, learned advocate for the respondent /plaintiff, on the other hand, has submitted that the Bengali terms "Radh" and "Badal" means cancellation and change respectively and that learned Lower Courts rightly held that the settler Charu Bala Dasi reserved the right of cancellation of said deed of trust and accordingly, it was cancelled by execution of deed of cancellation dated 3rd of December, 1974. 5. MR. Chatterjee has next submitted that both the Courts below came to concurrent findings of fact in interpretation of the terms of said Clause 21 of the deed of trust that settler reserved the right of revocation and that said concurrent findings of fact should not be interfered by this Court under Section 100 of the Code of Civil Procedure. 6. MR. Chatterjee has next submitted that deed of revocation dated 3rd of December, 1974 is not a deed being void ab initio, and that it has to be declared in valid by a competent Court of law. According to MR. Chatterjee as said deed of cancellation dated 3rd of December, 1974 has not been declared invalid by any competent Court of law, it has to be taken on its face value as a deed cancelling the deed of trust dated 15th of December, 1972. Mr. Chatterjee has further submitted that the appellant /defendant also did not claim during his evidence that deed of trust dated 15th of December, 1972 was not cancelled by the deed of revocation dated 3rd of December, 1974. Mr. Chatterjee has further submitted that the appellant /defendant also did not claim during his evidence that deed of trust dated 15th of December, 1972 was not cancelled by the deed of revocation dated 3rd of December, 1974. According to him the defendant rather admitted said revocation in other way, by trying to establish his tile to the suit property through two alleged wills one dated 12th of February, 1975 executed by Charu Bala in favour of her husband Lal Mohan and the other dated 19th of July, 1976 executed by Lal Mohan in favour of the defendant. According to him, if it was defendants case that the deed of trust was not revocable and was not cancelled by the deed of cancellation, then there was no scope of staking defendants title to the suit property through two subsequent wills one of Charu Bala and the other of Charu Bala"s husband. Mr. Chatterjee has accordingly prayed for dismissal of the appeal. 7. AT the time of admission of this Second Appeal the following substantial questions of law were framed by the Hon"ble Division Bench. (a) Whether the learned Courts below committed substantial error of law in holding that by virtue of the original deed of trust Charubala was authorized to revoke the same by totally misreading the contents of the same which merely permitted Charubala to alter the terms of the deed, but it did not authorize Charubala to revoke the same; (b) Whether the learned Courts below committed substantial error of law in not holding that once the Debottar having been created by virtue of the registered deed of trust, Charubala was not competent to revoke such Debottar in the absence of any specific power reserved by virtue of the Deed of Trust and as such, by virtue of the Will of Charubala no title can accrue in favour of the plaintiff. (c) Whether the learned Courts below committed substantial error of law in holding that there exists a relationship of landlord and tenant between the parties by totally misreading the contents of the original deed of trust creating Debottar; 8. ALL these three points are interlinked and accordingly are taken up together for discussion. Admittedly, Smt. Charu Bala Dasi was the owner of the suit property and executed a deed of trust in favour of deity Sree Sree Gopal Gobinda Jiew Thakur in the year 1972. ALL these three points are interlinked and accordingly are taken up together for discussion. Admittedly, Smt. Charu Bala Dasi was the owner of the suit property and executed a deed of trust in favour of deity Sree Sree Gopal Gobinda Jiew Thakur in the year 1972. Said Charu Bala Dasi also executed one deed of cancellation in 1974 by revoking said deed of trust through a registered document. There is no denial that the present respondent/plaintiff was appointed as Sebait of said deity on the strength of one unregistered will dated 23rd January, 1975 executed by Charu Bala Dasi which was duly probated after contested hearing and was affirmed up to the level of High Court. The appellant/defendant took specific defence that Charu Bala Dasi executed her last will on 12th of February, 1975 bequeathing the suit property in favour of her husband Lal Mohan Laha who later on executed one will in favour of the present respondent/ defendant of the suit property. The respondent/defendant has admittedly filed a probate case being No.412 of 1996 relating to the last will of Charu Bala Dasi in favour of her husband Lal Mohan Laha and also filed one probate case being No.8 of 1990 in respect of the will executed by Lal Mohan Laha in favour of the defendant. This respondent/ defendant also filed one case being No.12 of 1998 for revocation of the grant of probate of will dated 21st January, 1975 executed by Charu Bala Dasi in favour of respondent/ plaintiff. Admittedly, all those cases are still pending and as such appellant / defendant had no independent title as on date in respect of the suit property on the strength of said wills. 9. HOWEVER, it is a fact that by staking a claim of title over the suit property on the strength of said wills, this defendant indirectly admitted that the deed of trust executed by Charu Bala Dasi in 1972 in favour of deity was revoked on the strength of the deed of cancellation executed in 1974. Had there been no such revocation there was no question of bequeathing the suit property by Charu Bala through an alleged will dated 12th of February, 1975 in favour of her husband Lal Mohan Laha and subsequent transfer of suit property by Lal Mohan Laha in favour of this appellant/defendant through a will. Had there been no such revocation there was no question of bequeathing the suit property by Charu Bala through an alleged will dated 12th of February, 1975 in favour of her husband Lal Mohan Laha and subsequent transfer of suit property by Lal Mohan Laha in favour of this appellant/defendant through a will. However, appellant/defendant later on took a specific plea by amendment of his written statement that deed of trust of 1972 in favour of deity was not revocable as no such power was reserved in said trust deed by Charu Bala. 10. ADMITTEDLY, plaintiff is not entitled to get a decree on the basis of weakness of the defendants case and plaintiffs case must stand on its own legs. It is also a settled principle of law that defendant is authorized to put up different defences and even contradictory defences through his written statement / written statements. Much argument was made relating to Clause 21 of the deed of trust dated 15th of December, 1972. The moot question is whether settler Charu Bala Dasi reserved the power of cancellation of said deed of trust in said deed itself by said Clause 21. According to Clause 21 of said deed of trust the power which was reserved by the settler was written in Bengali "Kebalmatra Uha Radh Badal Karibar Khamata Rahila". According to Samsad Bengali dictionary and other standard Bengali dictionary the Bengali term "Radh" means cancellation, the Bengali term "Badal" means alteration / change and Bengali term "Radh Badal" if written together or written with a hyphen in between them, means alteration / change. On perusal of Clause 21 of said deed of trust it appears that the term "Radh" and the term "Badal" were written separately and not together, nor by inserting one hyphen in between them. Under these circumstances, the interpretation of the learned Lower Courts that the settler reserved the right of cancellation as well as change cannot be said to be altogether baseless. It is true that there was scope of interpreting said Clause in the other way also by giving stress on the Bengali word "Kebalmatra" which means only. Under these circumstances, the interpretation of the learned Lower Courts that the settler reserved the right of cancellation as well as change cannot be said to be altogether baseless. It is true that there was scope of interpreting said Clause in the other way also by giving stress on the Bengali word "Kebalmatra" which means only. But when learned Lower Courts came to a concurrent findings of facts on the basis of interpretation of a vital clause in a document and said interpretation cannot be said to be baseless, or not based on evidence, then High Court at the time of hearing of second appeal should not impose its own views by substituting the views of learned Lower Courts. This is more so when said view was taken by learned Lower Courts on the basis of evidence on record. Under the Indian Trust Act, 1882 a trust may be extinguished when the trust, being revocable is expressedly revoked under Clause (d) of Section 77 of said Act. 11. BOTH the Courts below came to the concurrent findings of fact that settler Charu Bala Dasi reserved a right of cancellation, and exercised said right of cancellation through the deed of revocation. Said observations being based on evidence should not be interfered while dealing with second appeal under Section 100 of the Code of Civil Procedure. 12. APART from that, said deed of revocation dated 3rd of December, 1974 has not been declared to be invalid by any competent Court of law till now. Admittedly, said deed of cancellation is not a document being void ab initio. If that be the position then said deed of cancellation stands as it is so long it is not declared to be invalid by a competent Court of law. Learned Lower Courts came to the concurrent findings of fact that Charu Bala reserved the power of revocation and that she revoked the trust deed by the deed of revocation dated 3rd of December, 1974 and that thereafter she bequeathed the suit property in favour of the plaintiff as Sebait of Jiew through a will dated 23rd January, 1975 which was duly probated after contested hearing and was confirmed upto the level of High Court. As such, there was no error in the aforesaid concurrent findings of facts of learned Lower Courts, that the present respondent/plaintiff stepped into the shoes of Charu Bala Dasi and became landlord of the appellant/defendant. The respondent/plaintiff got a decree of ejectment against present appellant /defendant /tenant on the ground of default and non-payment of arrear rent in spite of direction of the learned Trial Court. Said decree of ejectment on the ground of default which was confirmed by learned Lower Appellate Court does not call for any interference by this Court of second appeal in view of the discussions as made above. 13. AS a result, the appeal fails. However, I pass no order as to costs. Urgent xerox certified copy of this judgment be supplied to learned counsel / counsels of the parties, if applied for.