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2019 DIGILAW 119 (CAL)

Sayantan Dey v. Ruma Ghosh

2019-01-24

SOUMEN SEN

body2019
JUDGMENT : 1. This originating summons suit has been filed by two of the legal heirs of late Arun Prakash Dey for the following advice: 19(a) Whether the property at 81, Harish Mukherjee Road, Kolkata-700 025 can be developed by the parties to the suit by entering into appropriate development agreement ? 19(b) Whether the Will of the testator, if read in its true letter and spirit, would restrict development of the said property by the beneficiaries of the testator and/or their legal heirs ? 19(c) Whether the relevant clause as mentioned in paragraph no.11 as above of the Will is void ? 19(d) Such other question of questions as this Hon’ble Court may deem fit and proper to decide ? 2. Panchanan Dey since deceased, during his lifetime made and published his last Will and testament dated 17th April, 2017 by which he appointed one Bani Kanta Guha as the executor of the said Will till the said property is devised entirely and absolutely to his son Arun Prakash Dey. The family of the testator constituted of his wife Smt. Shanti Dey, his son Arun Prakash Dey and daughteers namely, Smt. Rina Ghosh, Smt. Mina Dey, Smt. Debjani Swami, Smt. Jolly Bose and Smt. Molly Chowdhury. He was the owner of one immovable property at 81, Harish Mukherjee Road, Kolkata-700 025. He bequeathed western portion of the said premises to his wife for life and after her death to his son Arun Prakash Dey. The eastern portion was tenanted. The executor was directed to realize the rentals from the said property and pay the corporation rates and taxes and also maintain the property and, after meeting all such expenses out of the rents so realized, the remaining amount would be distributed to his five daughters in equal share until their death. The Will contains certain restrictions which, inter alia, include that no part of the property shall be sold, mortgaged and/or charged in any manner during the lifetime of the wife of the testator and the sons and daughters of the testators. The probate of the Will was applied for and granted in favour of Bani Kanta Guha. During pendency of the administration of the estate, the wife, two daughters and the son of the testator had died. The probate of the Will was applied for and granted in favour of Bani Kanta Guha. During pendency of the administration of the estate, the wife, two daughters and the son of the testator had died. The legal heirs of the son has taken out this Summons in view of the fact that the property is in a dilapidated condition and might collapse at any time. The property was not maintained for years. The structure is almost 100 years old and is build on load bearing walls. There are trees which have grown on the walls and on the parapet. Trees have also grown on the roof. The structure has now become weak. There are cracks on the wall and continuous seepage of water through the roof and the walls have further weakened the stability of the building. The building requires extensive repair. The parties do not have adequate fund to carry out such repair. Although parties have agreed that they can save the property by entering into a development agreement but they are unable to do so in view of the restrictive clause in the Will by which they are prevented from selling and/or mortgaging and/or charging any part of the property. 3. The defendants have filed a written statement in which they have also prayed for an opinion of this Court in the affirmative so that the legal heirs can enter into a joint development agreement with a developer. The learned counsel for the parties have submitted that the object of the Will is to ensure that the parties can enjoy the said property. The enjoyment of the property presently is not possible because of the dilapidated condition of the structure and it would be more beneficial in the event the parties are allowed to develop the said property and hand over a portion of the property to a developer and retain the other portion of the property for their own use and occupation. It is submitted that in the event the answers are given in the affirmative, it would be beneficial for all the beneficiaries under the Will. 4. The Will has created divers interest in favour of the legal heirs of the said deceased who are beneficiaries under the Will. The wife was given the life estate and after her death to his son. 4. The Will has created divers interest in favour of the legal heirs of the said deceased who are beneficiaries under the Will. The wife was given the life estate and after her death to his son. The son is also having a life estate with regard to the western portion of the property. The testator under the Will did not want any of the legal heirs to sell, mortgage or charge the said property during their lifetime. It was in the nature of a trust by which the legal heirs are the beneficiaries. The said trust would automatically come to an end on the death of the legal heirs. However, if a legal necessity is made out then the beneficiaries of the Will can apply to the Court for an opinion of advice for sale and/or encumbrance of the property which would be beneficial for the beneficiaries of the Will and/or the trust as the case may be. Although in interpreting a restrictive clause in a trust deed of a debuttar estate in Hunooman Pershad’s case reported at 6 Moore’s I.A. 393, Knight Bruce, L.J. observed that right of alienation can be exercised rightly in the case of need or for the benefit of the estate and, in another decision in Ramchandraji vs. Lalji Singh reported in AIR 1959 Pat 305 , the Patna High Court construed a clause against alienation of properties by the Shebait in a deed of endowment by observing that it would not be in the interest of the institution to deprive the Shebait of the power of alienation in case of necessity or benefit, the same principle can be safely applied in the instant case as an advice to the applicant in favour of alienation notwithstanding the wishes of the testator, primarily on the ground that it would benefit the beneficiaries under the Will and the original clause against alienation in the present context if construed against the beneficiary, would defeat the object and purpose of the Will. 5. I see no reason why the same principle should not be applied while interpreting a restrictive clause in the Will by which the beneficiaries were restrained from selling and/or alienating and/or encumbering the property of which they are beneficiaries. The beneficiaries have unanimously resolved to enter into a joint development agreement with a developer which would enure to their benefit. I see no reason why the same principle should not be applied while interpreting a restrictive clause in the Will by which the beneficiaries were restrained from selling and/or alienating and/or encumbering the property of which they are beneficiaries. The beneficiaries have unanimously resolved to enter into a joint development agreement with a developer which would enure to their benefit. The property is for the occupation and beneficial enjoyment of the beneficiaries under the Will. This object would no way be frustrated in the event the beneficiaries are allowed to enter into a joint development agreement with a developer which would ensure beneficial enjoyment of the property. It might involve a permission to the developer to sale his allocation in the property to be constructed and the owners would enjoy their share out of owner’s allocation. 6. Under such circumstances, the questions are answered in the following manner: Question 19(a) is answered in the affirmative; Question 19(b) is answered in the negative; Question 19(c) is answered in the negative, as it depends upon a legal necessity being made out in favour of alienation. 7. CSOS No.3 of 2018 is accordingly decreed. The Court proceeds on the basis that there is a legal necessity or developing the said property and the averments made in paragraph 13 is the real state of affairs. 8. However, this order should not be construed as a confirmation of an agreement with Mantu Prasad Gupta. It is for the parties to decide what they should do after obtaining this opinion. 9. The department is directed to draw up the decree as expeditiously as possible.