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2013 DIGILAW 51 (CAL)

Tapan Kumar Banerjee v. Aparna Debi

2013-01-31

TARUN KUMAR GUPTA

body2013
JUDGMENT Tarun Kumar Gupta, J. 1. Both these appeals arose out of a common judgment dated 30th September, 1997 and decree thereof passed by learned Civil Judge (Senior Division), First Court, Alipore 24-Parganas (South) in Title Appeal No. 90 of 1996 partly modifying the judgment dated 9th February, 1996 and decree thereof passed by learned Additional Munsif, First Court, Alipore, 24 Parganas (South) in Title Suit No. 87 of 1993. The appellants of S. A. 96 of 1999 and respondents of S. A. 603 of 1999 being plaintiffs filed said suit alleging that Durga Dasi (since deceased) was the original owner of premises No. 11 Amita Ghosh Road, P. S. Ballygunge, Kolkata and that before her death on 31.03.1966 she executed a will dated 7th of July, 1963 in respect of the suit house. Durga Dasi Debi had two sons namely Ganesh Chandra Banerjee and Kartick Chandra Banerjee. Ganesh Chandra Banerjee predeceased her leaving behind present plaintiffs as his sons. Letter of Administration of the Will of Durga Dasi Debi was obtained. By said Will Durga Dasi Debi bequeathed eastern portion of suit house to the plaintiffs and she bequeathed western portion of the same to her younger son Kartick Chandra Banerjee. Kartick Chandra Banerjee died on 29.09.1968 leaving his wife Lalita Debi as his sole heir. Kartick Chandra Banerjee executed will before his death which was probated after his death. On the strength of said Will of Kartick Chandra Banerjee his wife Lalita Debi obtained only life interest in the suit property i.e., western portion of the suit house and she had no right to sell it out or dispose of. Though plaintiffs and Lalita Debi were in joint possession of the suit house but they were living in separate mess. Lalita Debi was trying to sell out the suit property to outsiders representing herself to be the full owner of the same and made some conditional offers to sell the property to the plaintiffs thereby threatening plaintiffs' right in the suit property. Accordingly, the plaintiffs filed said suit praying for declaring that they are the reversionary to the estate of Kartick Chandra Banerjee and that the defendant Lalita Debi was only a beneficiary for enjoyment of the suit property during her life time. Accordingly, the plaintiffs filed said suit praying for declaring that they are the reversionary to the estate of Kartick Chandra Banerjee and that the defendant Lalita Debi was only a beneficiary for enjoyment of the suit property during her life time. The plaintiffs also pray alternatively for a declaration that they are entitled to purchase the suit property by exercising the right of pre-emption over the same. 2. Original defendant filed a written statement denying material allegations of the plaint and contending inter alia that she became absolute owner of the suit property under the Will of her husband. It is further case that she offered to sell the suit property to the plaintiffs on receipt of market value but the plaintiffs did not agree to it and accordingly she agreed to sell the same to one Krishnadhan Banerjee for Rs. 100000/- and already received Rs. 25,001/- towards part consideration. The plaintiffs have no right of pre-emption over the suit property as it was a partitioned property. 3. During pendency of the trial in the Trial Court original defendant Lalita Debi died leaving behind one will making Netai Chatterjee as its executor. Said Netai Chatterjee and three others were substituted in place of Lalita Debi and said will of Lalita Debi was probated. The executor of the will of Lalita Debi being added as a party filed an additional written statement alleging that plaintiffs were not co-sharers of the suit property and that they never possessed the suit property as a co-sharer and they had no right to claim the right of pre-emption. 4. After contested hearing learned Trial Court dismissed the suit. 5. The plaintiffs preferred an appeal which was allowed in part. Though the learned Lower Appellate Court confirmed the finding of learned Trial Court that Lalita Debi became absolute owner of the suit property on the strength of will of Kartick and that the plaintiffs had no reversionary right thereupon, but allowed the plaintiffs' prayer for pre-emption. 6. Being aggrieved with said judgment and decree the plaintiffs filed the second appeal being S. A. 96 of 1999 and the defendants filed the second appeal being S. A. No. 603 of l999. 7. Hence was the analogous hearing of both the appeals. 8. 6. Being aggrieved with said judgment and decree the plaintiffs filed the second appeal being S. A. 96 of 1999 and the defendants filed the second appeal being S. A. No. 603 of l999. 7. Hence was the analogous hearing of both the appeals. 8. At the time of admission of the second appeal filed by the plaintiffs (S. A. No. 96 of 99) the following substantial question of law was formulated. (1) As to the effect of the will, which is a subject-matter of the suit, since prima facie the same appears to have conveyed life interest to the predecessor-in-interest of the defendants. 9. At the time of admission of the second appeal filed by the defendants (S.A. No. 603 of 1999) the following substantial question of law was formulated. (01) As to the nature of the right of the defendant/appellant in the context of prevalent legal position of absolute estate of the widow. 10. Mr. Pradyumna Sinha, learned counsel for the plaintiff appellants, submits that though original defendant Lalita Debi stated in her written statement that she became the owner of the suit property on the strength of the will of her husband Kartick Chandra Banerjee which was duly probated but during her evidence she stated that she got the suit property absolutely on the strength of the will of her mother-in-law Durga Dasi. He further submits that even in the Will of Lalita Debi (Ext 'ka') she stated that she got the suit property not from her husband but from her mother-in-law Durga Dasi which is against her pleadings as well as against the factual aspects of the case. According to Mr. Sinha in terms of the Will dated 07.07.1963 of Durga Dasi the suit property was allotted absolutely to her younger son Kartick Banerjee with a provision that if no issue was born in the wedlock of Kartick and his wife Lalita and if Kartick predeceased Durga Dasi then the suit property would devolve upon Lalita Debi. According to Mr. Sinha as admittedly Kartick died after death of his mother Durga Dasi, Kartick became the absolute owner of the suit property on the strength of the Will of her mother. He further submits that whatever right original defendant Lalita Debi acquired in the suit property the same came through the Will dated 22.08.1968 of Kartick Chandra Banerjee (Ext. 2) which was duly probated. He further submits that whatever right original defendant Lalita Debi acquired in the suit property the same came through the Will dated 22.08.1968 of Kartick Chandra Banerjee (Ext. 2) which was duly probated. He next submits that Kartick Chandra Banerjee dealt with two premises namely premises No. 10 Amita Ghosh Road which belonged to him absolutely and also the suit property which he got in terms of his mother's will. He further submits that though Kartick Chandra Banerjee used words "give, divest, bequeath absolutely" in connection with other properties but he used words "to enjoy" in respect of the suit property. According to him, this shows that Kartick Chandra Banerjee intended to give the suit property to his wife Lalita Debi for life interest only. In this connection he further submits that admittedly Kartick Chandra Banerjee had no issue and his wife Lalita Debi was his sole heir and as such if he wanted to bequeath the suit property to his wife Lalita Debi absolutely then there would not have been any necessity to include the suit premises in the Will as the same would have been inherited by Lalita Debi on death of Kartick Babu. His next contention is that since the suit property was the family dwelling house of his mother and since the spirit of the Will of her mother was to keep the suit property within the possession of her descendents, Kartick Chandra Banerjee purposely used the words "to be enjoyed" in his Will without stating that his wife would get the suit property absolutely after his death. 11. Mr. Suchit Banerjee, learned counsel for the defendants (appellants of S. A. 603 of 1999 and respondents of S. A. No. 96 of 1999), submits that the question as to whether Lalita Debi inherited the suit property absolutely or only with life interest on death of her husband was set at rest. According to him, plaintiffs filed an application for temporary injunction in the suit against the defendant restraining her to transfer the suit property which was dismissed on contest with the observation that Lalita Debi got the suit property absolutely in terms of the Will of her husband and that it was confirmed upto the level of this High Court. 12. According to him, plaintiffs filed an application for temporary injunction in the suit against the defendant restraining her to transfer the suit property which was dismissed on contest with the observation that Lalita Debi got the suit property absolutely in terms of the Will of her husband and that it was confirmed upto the level of this High Court. 12. He next submits that both the Courts came to the concurrent findings of fact that Lalita Debi became the absolute owner of the suit property on the strength of the Will of her husband and that this Court while disposing of the second appeal should not upset said concurrent findings of fact of learned Courts below. His further contention is that as the plaintiffs were aware that Lalita Debi was absolute owner of the suit property they wanted to purchase the same from her and also prayed for pre-emption. 13. There is no denial that the entire premises No. 11 including the western portion of the same (the suit property) originally belonged to Durga Dasi Debi who executed the Will dated 07.07.1963 bequeathing said property and other properties through said will. As per Will dated 07.07.1963 of Durga Dasi of which letter of administration was obtained (Ext. 1) her younger son Kartick inherited the suit property as he did not predecease his mother. The question of getting the suit property by Lalita Debi through the Will of Durga Debi did not arise as the contingency namely death of Kartick Chandra Banerjee during the life time of Durga Dasi did not happen. Admittedly, Kartick Chandra Banerjee died leaving a Will dated 22.08.1963 which was duly probated (Ext. 2). In the Will of Kartick (Ext. 2) the other property which belonged to him was directed to be sold by the executors and trustees for apportionment of sale proceeds of the same as per direction made in the Will. However, in said Will Kartick Chandra Banerjee dealt with the suit property by stating that the properties which 'I have inherited out of the estate from my deceased mother Smt. Durga Dasi Debi will go to my wife Smt. Lalita Debi to be enjoyed by her without any interruption from anybody'. Now the entire case hinges upon the interpretation of said few lines of the Will of Kartick Chandra Banerjee wherein he dealt with the suit property. Now the entire case hinges upon the interpretation of said few lines of the Will of Kartick Chandra Banerjee wherein he dealt with the suit property. When a person makes a will relating to his properties he usually includes all his properties to be left by him. So, it should not be presumed that Kartick Chandra Banerjee included the suit property in his Will though it would have gone to his wife Lalita Debi automatically on his death being his sole legal heir had it not been included in the Will, just to show that he wanted to give the suit property to his wife Lalita Debi through said will only for life interest. 14. However, it is equally true that rejection of the prayer for temporary injunction filed by the plaintiffs praying to restrain defendant Lalita Debi from dealing with the suit property during pendency of the suit does not by itself establish that Lalita Debi had absolute interest in the property. At the time of disposing of the revisional application by this Court in connection with said injunction matter it was specifically stated as follows:-- It is, however, clear that any observation and/or finding made by both the Courts below as well as observation made by this Court are tentative for the purpose of disposal of the petition for temporary injunction and that observation would not influence the Trial Court to decide the case on merit at the time of final hearing of this suit." As such, it is clear that at the time of disposing of the temporary injunction petition the observations, if any, made by the Courts were tentative in nature and did not decide any issue. 15. The submissions to the effect that Kartick Chandra Banerjee bequeathed the suit property through his Will to his wife Lalita Debi on life interest only as the spirit of the Will of her mother was to keep the suit property within the possession of her descendents has also not much force. In said will of Durga Dasi dated 07.07.1963 (Ext. 1) it was specifically stated that if Kartick Chandra Banerjee predeceased her having no issue, then the suit property would devolve upon Kartick's wife Lalita Debi with all the powers for selling, disposing of etc. In said will of Durga Dasi dated 07.07.1963 (Ext. 1) it was specifically stated that if Kartick Chandra Banerjee predeceased her having no issue, then the suit property would devolve upon Kartick's wife Lalita Debi with all the powers for selling, disposing of etc. only with the limitation that before selling she has to offer to the possessors of the other portion of the suit house for purchase by paying market value. 16. In order to stress the claim of the plaintiffs that Kartick Chandra Banerjee bequeathed the suit property to his wife Lalita Debi through his Will only for life interest, learned counsel for the plaintiffs referred pages 144 and 145 of the Indian Succession Act by M. N. Das, Twelfth Edition which runs as follows:-- The recital in the Will of the Testator that his wife should 'enjoy" the property is important to indicate the intention of the testator. If he does not leave any specific property to his wife, and without words of inheritance or words empowering her to alienate which are usually inserted when it is intended to give an absolute estate, but he leaves the property to her to 'enjoy' the conclusion is that he did not intend that his wife should have the power to alienate the estate. 17. In this connection the case law referred in AIR 1977 SC 1944 (Vaddeboyina Tulasamma and others vs. Vaddeboyina Sesha Reddi) interpreting the applicability of sections 14(1) and 14(2) of the Hindu Succession Act, 1956 may be referred to. In said case Hon'ble Court held as follows:-- Sub-section (1) of section 14 is large in its amplitude and covers every kind of acquisition of property by a female Hindu including acquisition in lieu of maintenance and where such property was possessed by her at the date of commencement of the Act or was subsequently acquired and possessed, she would become the full owner of the property. Sub-section (2) is more in the nature of a provision or exception to sub-section (1). Sub-section (2) is more in the nature of a provision or exception to sub-section (1). It excepts certain kinds of acquisition of property by a Hindu female from the operation of sub-section (1) and being in the nature of an exception to a provision which is calculated to achieve a social purpose by bringing about change in the social and economic position of woman in Hindu society, it must be construed strictly so as to impinge as little as possible on the broad sweep of the ameliorative provision contained in sub-section (1). It cannot be interpreted in a manner which would rob sub-section (1) of its efficacy and deprive a Hindu female of the protection sought to be given to her by sub-section (1). Sub-section (2) must, therefore, be read in the context of sub-section (1) so as to leave as large a scope for operation as possible to sub-section (1) and so read, it must be confined to cases where property is acquired by a female Hindu for the first time as a grant without any pre-existing right under a gift, will, instrument, decree, order or award, the terms of which prescribe a restricted estate in the property. 18. From the spirit of the above referred case law it is crystal clear that at the time of interpreting the contents of a Will as to whether the property bequeathed through said Will to a female Hindu was absolute or for life interest only the Court should favour the absolute interest if two interpretations are possible. As the original defendant Lalita Debi got the suit property through said Will of her husband for enjoying the same without any interpretation from anybody it can be interpreted that said bequeath was absolute in nature. As both the Courts below came to concurrent findings of fact in the matter of interpretation of said provision of the Will and opined that original defendant Lalita Debi got absolute ownership in the suit property on the strength of her husband's Will dated 22.08.1968 (Ext. 2), this Court at the time of hearing of the second appeal should not interfere with the same. 19. Learned counsel for the defendants submits that learned Lower Appellate Court committed gross error by making out a third case that the offer made by Lalita Debi to the plaintiff through her letters (Ext. 2), this Court at the time of hearing of the second appeal should not interfere with the same. 19. Learned counsel for the defendants submits that learned Lower Appellate Court committed gross error by making out a third case that the offer made by Lalita Debi to the plaintiff through her letters (Ext. 4 series) being conditional offers were no offers particularly when there was no such allegation either in the plaint or in the evidence of the plaintiffs. According to him, in terms of the directions of the Will dated 07.07.1963 of Durga Dasi Debi (Ext. 1) the original defendant before selling out the property to a third party made offer to the plaintiffs through those letters but plaintiffs did not show their willingness to purchase the same at the price asked, and rather expressed doubt as to the authority of Lalita Debi to make said offer and also questioned the propriety of fixing said high price. According to him as plaintiffs did not show any inclination for purchase of the suit property paying the price offered by Lalita Debi, Lalita Debi was compelled to sell the same to another person who gave the highest market price and that at this stage the plaintiffs are debarred from making any claim for pre-emption for purchase of said property under section 44 of the Transfer of Property Act. Learned counsel for the plaintiffs, on the other hand, submits that the plaintiffs were entitled to purchase the suit property being the other half portion of their dwelling house and that learned Lower Appellate Court rightly granted said prayer of pre-emption of the plaintiffs. 20. Section 44 of the Transfer of Property Act, 1882 runs as follows:-- Where one of two or more co-owners of immovable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires as to such share or interest, and so far as is necessary to give, effect to the transfer, the transferor's right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting at the date of the transfer, the share or interest so transferred. Where the transferee of a share of a dwelling-house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house. 21. It came out from the Will dated 07.07.1963 of Durga Dasi Debi (Ext. 1) that the suit dwelling house was partitioned into two halves i.e., eastern half and western half (suit property) by raising partition walls in between the two halves both in the ground floor as well in the first floor. It is true that there was no partition wall in between two halves in the second floor i.e., in the roof and that the stair case for going to the roof was lying in the western portion but the occupants of the eastern portion (plaintiffs) were given liberty to construct a stair case in their portion for going to the roof and also for raising partition wall in the second floor roof at the cost of both the parties. As such, it cannot be said by any stretch of imagination that the present plaintiffs were co-sharers of the western portion of the said building i.e., the suit property. Again the suit property being a partitioned one cannot be treated as a dwelling house belonging to an undivided family. As such, section 44 of the Transfer of Property Act, 1882 has no application in the facts and circumstances of the case. This is more so when before effecting transfer Lalita Debi made offers to sell the property to the plaintiffs on receipt of market price and when plaintiffs refused to purchase the same by raising questions as to the authority of Lalita Debi to sell the same as well as to the fixation of the price. 22. In view of the discussions made above I am of opinion that the impugned judgment of the learned Lower Appellate Court so far as it related to allowing the prayer of pre-emption of the plaintiffs, is not sustainable in law. 23. As a result, the appeal filed by the plaintiffs (S.A. No. 96 of 1999) is dismissed on contest but the appeal filed by the defendants (S.A. 603 of 1999) is hereby allowed on contest. 23. As a result, the appeal filed by the plaintiffs (S.A. No. 96 of 1999) is dismissed on contest but the appeal filed by the defendants (S.A. 603 of 1999) is hereby allowed on contest. The impugned judgment of the learned Lower Appellate Court so far as it related to granting of prayer of pre-emption of the plaintiffs is hereby set aside restoring the judgment of learned Trial Court. 24. However, I pass no order as to costs. 25. Send down Lower Court records along with a copy of this judgment to the Lower Court at the earliest. Urgent photostat certified copy of this judgment be supplied to the learned counsels of the parties, if applied for.