Research › Search › Judgment

Calcutta High Court · body

2013 DIGILAW 88 (CAL)

Husna Bano v. Munni Bano

2013-02-12

I.P.MUKERJI

body2013
ORDER I.P. Mukerji, J. 1. An executrix has tiled a suit in this Court. This is an application in aid of it seeking a restraint order on a company which is the second defendant preventing it from selling or otherwise transferring or dealing with the undivided 1/2 share in the premises numbered as 5, Old Court House Street (22, Hemanta Basu Sarani), Kolkata-700 001. The facts are these. 2. One Samshul Haque made and published his last Will and Testament on 15th September, 1977. He died on 2nd June, 1995. The testator had four daughters, Husna Bano, the plaintiff, Munni Bano, the first defendant, Akhtar Bano, the fourth defendant and Mushtar Bano, the fifth defendant The fourth and fifth defendants are impleaded as pro-forma defendants. He had an undivided 1/2 share in the above property. He left behind one son Md. Farooque, the third defendant to whom he bequeathed his 1/2 share in the above property. According to the cause title of the plaint, all the children of the testator reside in the United Kingdom. 3. The dispute is with regard to an Indenture executed on 25th June, 2012 concerning this property. In this document, Munni Bano is described as the vendor/seller, Md. Farooque as the confirming party/the releaser and the second defendant company, the purchaser. In it a power of attorney dated 29th May, 2012 executed by Md. Farooque is referred to, whereunder, Munni Bano was empowered to take steps for "release" of the property, execution and registration of a conveyance relating to it. Md. Farooque in that document is said to have relinquished his right, title and interest in the property in favour of his sister Munni Bano. Furthermore, Munni Bano is said to have conveyed and registered the above property in favour of the second defendant at the consideration mentioned therein. 3A. Now, although the testator died a long time, ago and probate of the Will was obtained on 11th January, 2001, the administration of the estate is not complete. The executrix has no till date executed a deed of assent. 4. 3A. Now, although the testator died a long time, ago and probate of the Will was obtained on 11th January, 2001, the administration of the estate is not complete. The executrix has no till date executed a deed of assent. 4. The above suit has been filed by the executrix challenging the above conveyance and praying for the following reliefs: a) A decree for declaration to the effect that the said Deed of Conveyance dated 25th June, 2012 registered with Additional Registrar of Assurances-II, Kolkata, being Deed No. 7760 of 2012, executed in favour of the defendant No. 2 in respect of the undivided 1/2 share in the said property left behind by the said Samshul Haque, said deceased, is a nullity, unenforceable and is void ab-initio; b) A decree for permanent injunction restraining the defendant No. 2 from selling, transferring, alienating or disposing of and also from any way dealing with the undivided 1/2 share in the said property left behind by the said Samshul Haque at the time of his death or any portion thereof and also from creating any third party interest in respect thereof, in any manner whatsoever; c) Receiver; d) Injunction; e) Attachment; f) Costs; g) Such further and/or other relief or reliefs to which the plaintiff may be found to be entitled. 5. I find that the prayers in the interim application which are set out below are of the same nature as the claims in the plaint: a) Injunction restraining the opposite party no. 2 from selling, transferring, alienating or disposing of and also from anyway dealing with the undivided 1/2 share in the said property left behind by the said Samshul Haque, since deceased, at the time of his death or any portion thereof and also from creating any third party interest in respect thereof, in any manner whatsoever; b) Ad-interim order in terms of prayer (a) above; c) Costs of and/or incidental to this application be borne by the opposite parties; d) Such further and/or other order or orders be passed and/or direction or directions be given, as to this Hon'ble Court may deem fit and proper. And for this act of kindness, your petitioner, as in duty bound, shall ever pray. 6. Therefore, in my opinion an order in this interim application would effectively decree the suit. 7. And for this act of kindness, your petitioner, as in duty bound, shall ever pray. 6. Therefore, in my opinion an order in this interim application would effectively decree the suit. 7. The case in the interlocutory petition is revealed in the following paragraphs of it:- 22. In the said Deed of Conveyance, the opposite party No. 1 has also represented herself as the constituted attorney of the opposite party No. 3. 23. Your petitioner most respectfully submits that in any event and under any circumstances, the opposite party No. 3 could not have executed any power of attorney in favour of the opposite party No. 1, nor could have appointed the opposite party No. 1 as his constituted attorney enabling her to sell, transfer, alienate or dispose of the undivided 1/2 share in the said property left behind by the deceased testator, namely, the said Samshul Haque, prior to proper administration of the estate of the said testator by your petitioner. 24. Interestingly, the opposite party No. 1 has purported to sell, transfer, convey and alienate the undivided 1/2 share in the said property left behind by the testator describing herself as the "Vendor" in the said Deed of Conveyance. 25. In any event and under any circumstances, the opposite party No. 1 could not and ought not to have acted or represented herself as "Vendor" while purporting to sell, transfer, alienate or dispose of the undivided 1/2 share in the said property left behind by the testator and that too being well aware of the contents of the last Will and Testament dated 15th September, 1977 executed by the testator; whereunder the said undivided 1/2 share in the said property had been exclusively bequeathed upon the opposite party No. 3. While purporting to sell, transfer, alienate and dispose of the undivided 1/2 share in the said property left behind by the testator, the opposite party No. 1 has not even acted in the capacity of the constituted attorney of the opposite party No. 3 but has acted pretending and/or resembling and/or representing herself as the owner thereof and on this score alone, the said Deed of Conveyance is void and is liable to be set aside. 8. It was contended on behalf of the executrix that since she had not executed the deed of assent in favour of Md. 8. It was contended on behalf of the executrix that since she had not executed the deed of assent in favour of Md. Farooque in respect of the above property, the legal title in the property remained with her as executrix. Next it was said that having no legal title Md. Farooque as the legatee could not convey the property in favour of the purchaser and that the conveyance was void. 9. It was also said that the legatee Farooque did not execute the conveyance. It was executed by his sister Munni Bano, under a dubious power of attorney and deed of relinquishment. Even assuming that the legatee had the right to dispose of his property, Munni Bano had no such right, in the facts and circumstances, to dispose of the above property. 10. It was also contended on behalf of the executrix that the power of attorney should have been registered under the Registration Act, 1908, according to the decision of the Supreme Court in the case of Suraj Lamp and Industries Private Limited Through Director v. State of Haryana and another reported in (2009) 7 SCC 363 : ( AIR 2009 SC 3077 ) and that in the absence of registration the conveyance was non est. 11. No other objection to the conveyance of the property was raised. 12. Now, it is very important to note the law on the subject. 13. It is trite that the executor has the legal title to the property (See Sections 211 and 213 of the Indian Succession Act, 1925). Section 307 empowers the executor to dispose of the property of the deceased of which he is the legal representative under S. 211 of the said Act. This legal title or interest can be transferred by the executor to the legatee by an assent expressed by him. This assent may also be verbal. (See Section 333 of the Indian Succession Act, 1925). Section 332 stipulates that the assent of the executor is necessary to complete the legatee's title. Section 104 of the Indian Succession Act, 1925 provides that the legatee has a vested interest in the legacy from the day of the death of the testator. 14. The case of Hirak Roy v. S.K. Roy & Ors. reported in (1990) 95 CWN 629 cited by the Learned Advocate General is a very important decision on the subject. Section 104 of the Indian Succession Act, 1925 provides that the legatee has a vested interest in the legacy from the day of the death of the testator. 14. The case of Hirak Roy v. S.K. Roy & Ors. reported in (1990) 95 CWN 629 cited by the Learned Advocate General is a very important decision on the subject. It is a Division Bench judgment of our Court. It says that without assent, a legatee's title is imperfect. Although the legatee's title is imperfect the legatee can convey that imperfect title to the purchaser if the estate is free from debts. Mukul Gopal Mukherjee, J. for the Division Bench opined:-- In Section 336 of the Indian Succession Act, the effect of the Executor's assent has been provided for. The assent of the Executor of Administrator to a legatee gives effect to it from the death of the testator. In Illustration (i) it has been delineated that if a legatee as well as his legacy before it is assented to by the Executor, the Executors subsequent assent operates for the benefit of the purchasers and complete his title to the legacy. Thus the assent of the Executor shall have relation to the time of the testator's death under Section 332 the assent of the Executor or Administrator is necessary to complete a legatee's title to his legacy. In Khagendra Nath Mukherjee v. Khetra Nath Mukherjee, reported in AIR 1923 Cal 21: ILR 50 Calcutta 171, it was made very clear that the matter of assent seems only a perfecting act for the security of the Executor and therefore, law does not require any exact form in which it is to be given. Though on the assent of the Executor, full title passes to the legatee, the assent creates no new title; it merely perfects that title under the Will, and if the legacy is void, the assent is of no use. In Martine v. Willson (1912) 1 IR 480 the principle was enunciated clearly that if an Executor refuses to give an assent without cause, the Court may compel him to give it. The Executor is not entitled to withhold his assent arbitrarily and if he does so, the legatee is competent to bring an action to recover the property bequeathed to him (Vithal v. Narayan AIR 1931 NP 69 at Page 70). The Executor is not entitled to withhold his assent arbitrarily and if he does so, the legatee is competent to bring an action to recover the property bequeathed to him (Vithal v. Narayan AIR 1931 NP 69 at Page 70). There not having been any debts to the estate, the only question that has to be satisfied by Dr. S.K. Roy, A.C. Roy and Smt. Bani Roy is about the probate duty which can only be assessed on a proper valuation having been assessed by the competent authority. The assent of the Executor would only be a formality only on the deposit of the necessary funds for probate duty being put in by the legatees without which the Executor cannot obtain a probate in respect of the Will of Late Smt. Giri Bala Devi. 15. In my opinion this case the facts of which are identical to our case clinches the issue. There is no pleading before me to show that the property should be held back to pay out the debt of the estate. Therefore, Md. Farooque, as a legatee or through a power of attorney was in a position to confer an imperfect title of the property on the purchaser. 16. I find no rule of law by which it can be said that a power of attorney for transfer of an immovable property has to be registered. In spite of my request to the bar no authority was cited for the proposition that registration was required. 17. The more important point is that it is for the taker of an immovable property to complain about its title or the authority of the executant of the document, conveying it. Here the purchaser is not making any complaint at all. The complaint is coming from the executrix. Having regard to the decision in Hirak Roy v. S.K. Roy & Ors. reported in (1990) 95 CWN 629, a legatee is recognized to be having an imperfect title to an immovable property, in the absence of an assent from the executor or executrix. Furthermore, he has the right to convey the imperfect title. If the title is imperfect, it is the problem of the taker of the property. By virtue of the above decision the property could have been conveyed by the third defendant or his constituted attorney. The executrix has no say in the matter. 18. Furthermore, he has the right to convey the imperfect title. If the title is imperfect, it is the problem of the taker of the property. By virtue of the above decision the property could have been conveyed by the third defendant or his constituted attorney. The executrix has no say in the matter. 18. As all the necessary papers were disclosed at the new motion stage I do not think that there is any need to keep this application pending. 19. No order is called for, save and except that in the event of any transfer or dealing with this property otherwise than by transfer, the second defendant will state in the recital of the conveyance or in the written document, evidencing transfer or parting with its possession, the subject-matter and the factum of pendency of the above suit. I make it clear that any transfer or parting with possession of this property can be made only by way of a written document containing the above recital. 20. The above application is disposed of by this order. Urgent certified photocopy of this judgment/order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.