Calcutta High Court
Ravi Kant Jajodia & Ors vs Maharaj Kumar Saday Chand Mahatab & Ors on 21 December, 2018
Equivalent citations: AIRONLINE 2018 CAL 1582
Author: Soumen Sen
Bench: Soumen Sen
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
BEFORE:
The Hon'ble JUSTICE SOUMEN SEN
GA No.3564 of 2016
E.C No.335 of 2016
C.S. No. 994 of 1959
Ravi Kant Jajodia & Ors.
Versus
Maharaj Kumar Saday Chand Mahatab & Ors.
For the Applicants : Mr. Anindya Kumar Mitra, Sr. Adv.,
Mr. Jaydip Kar, Sr. Adv.,
Mr. Anirban Kar, Adv.
Mr. Siddhartha Ghosh, Adv.
Mr. Sourav Kumar Mukherjee, Adv.
Mr. D. Sinha, Adv.
For the Decree holders :Mr. Moloy Ghosh, Sr. Adv.
Mr. Subhrangshu Ganguly, Adv.
Mr. Kumarjeet Banerjee, Adv.
Mr. Ranjan Lal Mitra, Adv.
Hearing concluded on :14.12.2018
Judgment on :21.12. 2018
Soumen Sen, J.:- The applicants are the grand children of Late
Uday Chand Mahatab, Maharaja of Burdwan.
This application has been filed by the said grandchildren for
determination of the question as to whether the applicants are
representatives of Late Uday Chand Mahatab in respect of Tiretta Bazar
Property as well as for determination as to whether the order dated 23rd
May, 2003 is executable against the applicants in respect of the Tiretta
Bazar Property. In the alternative, the applicants have prayed for a
declaration that the order dated 23rd May, 2003, drawn up as a decree
and affirmed by the Hon'ble Division Bench by an order dated 14th
March, 2014, is void and inexecutable against the said Tiretta Bazar
Property.
Before entering into the arena of disputes as canvassed by the
parties in their pleadings as well as during argument, the relevant
undisputed facts are indicated below.
On 14th February, 1948 the Maharaja of Burdwan granted a lease
in respect of premises no. 12, Lower Chitpur Road, Calcutta, now
known as Tiretta Bazar Property, situated at premises no. 22 (also
known as 22B) Rabindra Sarani, Kolkata (hereinafter referred to the
suit property) in favour of Shri Ganesh Property Private Ltd. for a term
of 66 years with an option for renewal for a further period of 33 years.
At the material time, shareholdings in Shri Ganesh Properties Private
Ltd. were held by three groups of shareholder namely Jajodias, Sarafs
and Acharyas. By virtue of an agreement of sale dated 22nd October,
1952 the Maharaja of Burdwan agreed to sell the said property to
Murlidhar Saraf, predecessor in interest of the Saraf Group, and
Anandilal Poddar. By the said agreement, the Maharaja of Burdwan
had also agreed to sell the premises no. 57, Clive Street, Calcutta (the
Raja Katra property) to the said parties.
On January 13, 1953 Jugal Kishore Jajodia and Mannalal Jajodia
on the one hand and Murlidhar Saraf and Anandilal Poddar on the
other hand entered into an agreement under which it was agreed that
Poddar and Saraf will get a separate deed of conveyance/permanent
lease from Majaraja of Burdwan in respect of Tiretta Bazar property
directly in the name of Jajodia or nominees on payment of Rs.5.50
lakhs.
On 19th August, 1953 Murlidhar Saraf and Anandilal Poddar
jointly filed a suit being no. 2972 of 1953 against the Maharaja of
Burdwan for specific performance of the said agreement dated 22nd
October, 1952.
The aforesaid suit was compromised by filing a terms of
settlement on the basis of which a consent decree was passed on 5th
May, 1959. It was recorded in the consent decree that the suit property
should be sold at a consideration of Rs.5.50 lakhs in favour of
Murlidhar Saraf or his nominee in respect of the Tiretta Bazar property
and the amounts would be paid simultaneously with the execution of
the conveyance. The decree also provides for payment of Rs.3000/- to
the Maharaja for the seva puja of the deities Sri Sri Ishwar Radha Ballav
Jew until a mutual agreement with the Maharaja, his heirs and legal
representatives is arrived at for payment of a lump sum by way of
capitalization of the annual charge of Rs.8000/-. The decree also
provided for completion of transaction by 31st May, 1959 and time was
made the essence of the contract. No amount was paid or tendered to
Maharaja within 31st May, 1959. On 25th July, 1959, Jajodias group
filed a suit being C.S. No. 994 of 1959 against Sarafs, Poddar and
Maharaja of Burdwan praying inter alia for specific performance of the
agreement dated 13th January, 1953 as mentioned in paragraph 6 of
the plaint in favour of the plaintiffs and a decree directing the
defendants to execute a conveyance in terms of the conveyance now
lying at office of M/s. S.C. Ray Chaudhuri and Company (a copy
whereof is filed with the plaint and marked- E) in favour of the
plaintiffs and do all acts and things necessary for the said purpose,
including registration thereof.
On 27th July, 1959 an interim order of injunction was passed by
this Court in the suit filed by the Jajodias restraining the Maharaja of
Burdwan from executing any conveyance or transferring in respect of
the suit property in terms of the decree dated 5th May, 1959 passed by
suit No. 1972 of 1953 except in favour of the plaintiffs till disposal of
the above suit.
On 14th September, 1959 the above interim order was confirmed
till the disposal of the suit subject to depositing of Rs.5.50 lakhs by the
Jajodias being the entire consideration for purchase of the suit property
with M/s. Orr Dignam & Company, Advocates of the Maharaja of
Burdwan. Subsequently an order was passed on 17th December, 1962
by which direction was given for depositing a sum of Rs.5.50 lakhs in
two separate lots of Rs.3 lakhs and Rs.2.50 lakhs in short term Fixed
Deposit by M/s. Orr. Dignam & Company. By a letter dated 23rd
September, 1963, M/s. Orr Dignam & Company informed that they had
deposited a sum of Rs.2.50 lakhs and Rs.3 lakhs respectively with
National Grindlays Bank Ltd. and First National City Bank of New York
respectively which were being renewed on same terms.
Between 1961 and April, 1999 disputes arose between the
shareholders of Ganesh Properties Private Limited which however, was
resolved by an order dated 9th April, 1999 passed by the Hon'ble Appeal
Court. The Jajodias on 24th June, 2002 filed an application being G.A.
No. 2426 of 2002 for a direction upon Maharaja of Burdwan and the
legal heirs and/or legal representatives of the Maharaja for execution of
deed of conveyance in their favour in respect of the suit property in
which a decree was passed on 23rd May, 2003 and the appeal was
dismissed by the Hon'ble Division Bench on 14th March, 2014.
During the pendency of the suit some of the original parties died
and the legal heirs of the original parties were substituted. After
substitution, paragraph 6 of the amended plaint reads:
"6. On or about the 13th January, 1953, it was inter alia agreed
between the original plaintiff no. 2 and the deceased Jajodia on the one
hand and the Muralidhar Saraf since deceased defendant no.1 and the
said Anadilal Poddar since deceased on the other, at Calcutta within the
said jurisdiction, inter alia as follows:-
(a) The original plaintiff nos.2 and the deceased Jajodia
shall purchase and/or take permanent lease of the property
known as Tiretta Bazar situate at no.12, Lower Chitpur Road,
Calcutta, on payment of Rs.5,50,000/- and the proportionate
annual rent and/or charge out of the sum of Rs.8000/- payable
under the agreement dated the 22nd October, 1952 for both the
said properties.
(b) It was confirmed and acknowledged that the original
plaintiff no.2 and the deceased Jajodia have already paid to
Muralidhar Saraf since deceased the defendant no.1 and the said
Anandilal Poddar since deceased a sum of Rs.1,00,000/- through
Murlidhar Saraf since deceased the defendant no.1 and the said
original plaintiffs have paid a further sum of Rs.1,50,000/- to the
said Murlidhar Saraf since deceased defendant no.1 and the said
Anandilal Poddar since deceased for the specific purpose of being
paid by the said Murlidhar Saraf since deceased defendant no.1
and the said Anandilal Poddar since deceased to the original
defendant no. ?? (sic) by way of earnest money and/or as part
payment of the said price.
(c) Murlidhar Saraf since deceased defendant no.1 and the
said Anandilal Poddar since deceased will get a separate deed of
conveyance and/or permanent lease as the case may be, from the
defendant no.2 in respect of the said Tiretta Bazar property
directly in the names of the original plaintiff no. 2 and the
deceased Jajodia and/or in favour of the nominees of the said
original plaintiffs no. 2 to 4 and the deceased Jajodias.
(d) The original plaintiffs no. 2 and the deceased Jajodias
will pay the balance sum of Rs.3,00,000/- at the time of the
execution of the necessary documents.
(e) If the transaction between Murlidhar Saraf since
deceased the defendant no.1 and the said Anandilal Poddar since
deceased one the one hand and the original defendant no.2 on the
other falls through on the grounds of non-approval of title by
Messers. S.C. Ray Choudhuri & Co., Solicitors or on any other
ground save and except any default on the part of the original
plaintiff no.2 and the deceased Jajodias. Murlidhar Saraf since
deceased the defendant no.1 and the said Anandilal Poddar since
deceased will repay to the original plaintiff no.2 and the deceased
Jajodias the said sum of Rs.2,50,000/- received by them from the
original plaintiff no.2 and the deceased Jajodias as aforesaid.
The said agreement was duly recorded in writing by a letter dated
the 13th January, 1953 singed by Murlidhar Saraf since deceased
defendant no.1 and the said Anandilal Poddar since deceased and
addressed to the original plaintiff no. 2 and the deceased Jajodias. A
true copy of the said agreement is filed herewith and marked with the
letter "B". The original defendant no.2 was at all material time aware of
the said agreement."
The plaintiffs have referred to a subsequent, separate agreement
dated 13th January, 1953 between the original plaintiffs and Murlidhar
Saraf, which inter alia records that in respect of the said Tiretta Bazar
property, the original plaintiffs and the Saraf and Poddars have agreed
to have half share in the property. Jajodias have earlier paid a sum of
Rs. 1 lakh, out of which Rs.50,000 was received by Murlidhar Saraf,
and further paid Rs. 1.5 lakhs on 13th January, 1953 towards purchase
of said property. Whatever amount was invested would carry interest at
the rate of 9% per month, with profit and loss in the transaction being
half and half. The sale deed would be in the name of the Jajodias,
provided that if Saraf should pay within time, the entire amount of his
share in the sale deed would be made in the joint names of the original
plaintiffs and the original defendant no 1.
The plaintiffs have prayed for specific performance of this
agreement read with the agreement mentioned in paragraph 11 of the
amended plaint which reads:
"11(a) In the meantime, on or about the 29th May, 1959, Mr. Dilip
Kumar Mitra, Solicitor, purporting to act for and on behalf of the
Murlidhar Saraf since deceased addressed a letter to Messrs. Khaitan &
Co., and forwarded therewith an agreement for simultaneous execution
at the time of the conveyance. Thereafter, the defendant Murlidhar Saraf
since deceased and the said Anandilal Poddar since deceased came to
the office of Messrs. Khaitan & Co., on 30th of May, 1959 and in the
presence of original plaintiff No. 2 it was agreed at the office of Messrs.
Khaitan & Co., Calcutta within the aforesaid jurisdiction as follows:-
i) M/s. Khaitan & Co., would write a letter to Mr. Dilip
Kumar Mitra Solicitor, for the said Murlidhar Saraf since deceased
defendant No. 1 confirming that whatever rights and obligations
the said Murlidhar Saraf since deceased defendant No. 1 has
under the arrangement mentioned in paragraph 7 hereof will be
effective and binding as between Murlidhar Saraf since deceased
the defendant No. 1 and the original plaintiffs nos. 2 and the
deceased Jajodias herein in whose name the property is to be
conveyed and that whatever rights and obligations both parties
have under the said arrangement will be given effect to;
ii) In consideration of the said letter the Murlidhar Saraf
since deceased defendant No. 1 would nominate the original Nos.
2 and the deceased Jajodia as his nominees and Murlidhar Saraf
since deceased the said Anandilal Poddar since deceased would
instruct/their solicitors Messrs. S. C. Ray Chaudhuri & Co., to
complete the conveyance in the names of the original plaintiffs
Nos. 2 and the deceased Jajodia as purchasers of the said Tiretta
Bazar Property. The said Anandilal Poddar since deceased would
cause to be completed and/or procure the said conveyance in
favour of the original plaintiffs nos. 2 and the deceased Jajodia by
the defendant No.2 upon payment of the balance sum of Rs.3
lakhs by the original plaintiffs and the deceased Jajodia and that
they i.e. Murlidhar Saraf since deceased. The said Anandilal
Poddar since deceased would pay the balance sum of
Rs.2,50,000/- to the defendant No. 2 at the time of the execution of
the Conveyance which sum Murlidhar Saraf since deceased. The
said Anandilal Poddar since deceased had already received from
the original plaintiff Nos 2 and the deceased Jajodia for the said
specific purpose.
(b) Pursuant to the said agreement and in terms thereof Messrs.
Khaitan & Co., wrote its letter No. BK/5156 dated 30th May 1959
addressed to Mr. Dilip Kumar Mitra, the draft of which was duly
approved by Murlidhar Saraf since deceased. The said Anandilal Poddar
since deceased. Thereafter and in terms of the said arrangement
Murlidhar Saraf since deceased and the said Anandilal Poddar since
deceased instructed their said Solicitors Messrs. S. C. Ray Chaudhury &
Co., on the 30th May 1959 to have the conveyance completed in the name
of the original plaintiffs Nos. 2 and the deceased Jajodia. The other terms
and conditions of the conveyance had earlier been approved and finally
settled by and between parties to the said consent decree at the office of
Orr, Dignam & Co., solicitors for the defendant no.2 at Calcutta within the
said jurisdiction.
(c) On or about the 1st June, 1959 the original plaintiffs no. 2 and
the deceased Jajodias at the request of Murlidhar Saraf since deceased
defendant no.1 and the said Anandilal Poddar since deceased paid a
sum of Rs.21,450/- to Messers. S.C. Ray Choudhuri & Co., as costs of
stamps for the conveyance. The said conveyance was thereafter duly
stamped with the names of the original plaintiffs no.2 and the deceased
Jajodias inserted therein as purchasers on instructions of Murlidhar
Saraf since deceased the defendant no.1 and the said Anandilal Poddar
since deceased and with their full knowledge and/or approval. The said
engrossed conveyance duly stamped as aforesaid and bearing the names
of the original plaintiffs no.2 and the deceased Jajodias as purchasers
was thereafter sent to Messers. Orr, Dignam & Co., Solicitors, who were
acting for original defendant no.2 for comparison and return. A copy of
the engrossed conveyance was handed over by Messers. S.C. Ray
Chaudhuri & Co. to the original plaintiff no.2.
(d) The said engrossed and stamped conveyance with the names
of the original plaintiffs no.2 and the deceased Jajodias as the purchaser
and the defendant no.1 Murlidhar Saraf since deceased as the confirming
party was thereafter duly returned by M/s. Orr Dignam & Co. solicitors
acting for and on behalf of the defendant Maharajadhiraj of Burdwan, to
M/s. S.C. Ray Chaudhuri & Co. duly compared and approved.
In the aforesaid application the plaintiffs have also prayed for
vacating of the interim order of injunction passed in the suit on 27th
July, 1959 in view of the settlement arrived at between the various
shareholders of the Ganesh Properties Private Limited. The plaintiffs
have prayed for direction upon the Maharaja of Burdwan upon and/or
his legal heirs and representatives, that is, defendant nos. 3(a) to 3(k) to
execute the conveyance in favour of seven persons to the extent of the
shares indicated in the petition, and in default, the Registrar High Court
Original Side may be directed to execute such conveyance in relation to
the suit premises no.22 Rabindra Sarani, Calcutta. The defendant nos.
3(a) to 3(k) are:
3a) Maharaja Kumar Saday Chand Mehtab,
3b) Maharaja Kumar Malay Chand Mehtab,
3c) Maharaja Pranay Chand Mehtab,
3d) Kumari Baruna Devi,
3e) Kumari Jyotsna Bebi,
3f) Kumari Karuna Devi,
3g) The District Judge of Burdwan,
3h) Vice Chancellor of Burdwan University,
3i) Dr. Rama Ranjan Mukherjee, President Vice Chancellor, University of
Burdwan,
3j) Maharaja Kumar Capt. Abhay Chand Mehtab,
3k) Bimal Chand Kapoor.
During the pendency of the said application, on 24th July, 2002
notice to the specified intestate heirs and executors of Uday Chand
Mahato the Maharaja of Burdwan was published in the daily issue of
"Hindustan Times", "Pratidin" and "Sanmarg" at the instance of Khaitan
& Company. It appears that pursuant to the direction of the court M/s.
R.C. Kar, Advocates and solicitors acting on behalf of the Maharaja by a
letter dated 2nd August, 2002 disclosed the names and addresses of 10
grand children of the Maharajas in whose favour the properties of the
Maharajas have been released after probate of the Will of the Late
Maharaja of Burdwan by the executors appointed under the Will. The
advocate on record of the plaintiffs was informed that the Maharaja of
Burdwan died on 10th October, 1984 and the Will was probated on 20th
May, 1988.
In the said proceeding, Saday Chand filed an affidavit stating that
the respondent no.3(b) is dead and so is respondent no.3(j). Saday
Chand further stated that neither he nor defendant nos. 3(b), 3(c), 3(d), 3(e) and 3(f) are entitled to the Tiretta Bazar property under the Will of deceased Uday Chand Mahatab of Burdwan. Under the Will part of the estate including the Tiretta Bazar Property has passed on to the grand children of Maharaja who are 10 in number and the names have been disclosed to the plaintiffs' Advocate by the letter dated 2nd August, 2002. Saday Chand has further stated that by an order dated 2nd August, 2002, his Advocate-on-Record was directed to furnish the names of the heirs and legal representatives of the respondent no. 3(j) and pursuant thereto the names and addresses of the heirs of the said respondents have been furnished by the letter dated 2nd August, 2002. On the basis of the probate, the executors have signed release in favour of the persons who are entitled to properties of the Late Maharaja under his Will.
Although notices have been admittedly received by the applicant nos. 7, 9 and 11, the said applicants did not participate in the said proceeding.
Although Saday had contended that he had no interest in the property, he still opposed the application on merits and on all the grounds that were otherwise available to the legatee grandchildren. The said application was disposed of by a judgment dated 23rd May, 2003 directing the Maharaja of Burdwan and his heirs and legal representatives to execute the Conveyance in accordance with the said deed in respect of Tiretta Bazar Property being the premises no.22 (also known as 22B), Rabindra Sarani, Kolkata in favour of the petitioners and M/s. Orr. Dignam & Company was directed to hand over the said amount of Rs.2,50,000/- and Rs.3,00,000/-, the amounts so deposited with them in terms of the order dated 17th December, 1962 with accrued interest thereon, to Maharaja of Burdwan and/or his heirs and legal representatives towards the full and final payment of the price of the said property. Saday aggrieved by the said decree preferred an appeal being APD No. 455 of 2003.
At the time of the admission of the appeal, the following order was passed on 25th November, 2003:
"The Court: Mr. Mookerjee, learned Counsel appearing for the respondents points out that the appellant has no locus standi to prefer the appeal. He takes various other preliminary objections. All these objections are kept open for being agitated at the time of hearing.
After having heard learned counsel for the parties we direct that an informal paper book be preferred and filed within a period of four weeks from date including all relevant papers. It also appears that the 10 grandchildren, disclosed in the letter dated 2nd August, 2002 (wrongly typed as 19th August, 1993 in the original order), were served pursuant to the direction of the Court, as it appears from page 117 on 18th September, 2002. It seems that they are interested in the properties. These 10 grandchildren are added as respondents in the Memorandum of Appeal without prejudice to the rights and contentions of the respective parties including the parties so added. The appellant will serve notice upon each of them and file affidavit of service.
Mr. Mookerjee submits that his client will not take steps for execution of the decree appealed against till two weeks after Christmas Vacation.
Notice of appeal be waived by the appearing respondents. Leave is granted to file cross-objection. The cross-objection may also be included in the paper book. Leave is also granted to the appellant to take additional grounds.
All other formalities are dispensed with.
The appeal along with the application will be taken up for hearing as 'Specially Fixed Matter' on the reopening day after the Christmas Vacation.
All parties are to act on a signed Xerox copy of this dictated order on the usual undertaking."
Thereafter, Jai Chand Mahatab (son of Saday Chand and one of the grandchildren under the will) filed an application being G.A. 292 of 2004 before the Hon'ble Division Bench for transposition of the applicant to the category of the appellant. In the application, Jai Chand has stated that he became aware of this proceeding after being served with a copy of the order dated 25th November, 2003 as also a copy of the application of stay and have obtained a copy of paper book containing the papers of the trial Court. The reason for transposition is stated in paragraph 3, 4, 5, 6 and 7 of the said petition which read:
"3. Your petitioner states that by the order dated 25.11.2003 passed in the instant appeal preferred by Saday Chand Mahatab, the eledest son of the late Maharaja and a party to the proceedings, the petitioners have been added as respondent. Pursuant to the said order your petitioners have been served with a copy of the order as also a copy of the application for stay and have obtained copy of Paper Book containing the papers of the Trial court. On perusal of the said papers, your petitioner has come to know of the aforesaid facts.
4. Your petitioner states that in view of the Will of the lat Maharaja of Burdwan, your petitioner is now one of the Co-owners of the suit premises and is thus vitally interested in the said premises which is the subject matter of the present appeal.
5. Your petitioner states that your petitioner being one of the main parties who will be affected if the order of the Trial court is sustained, wishes to be transposed to the category of the appellant for the purpose of carriage of proceedings related to the appeal. A copy of the proposed amendment in annexed hereto and marked 'D'.
6. Your petitioner states that in terms of the judgment and decree dated 23.05.2003 your petitioner has been directed to execute a Conveyance in respect of the Suit Premises in favour of persons named in the prayer to the petition filed before the Learned Trial Judge. Your petitioner is highly aggrieved by the said order as the said order came to be passed without adding the petitioner as party to the said proceedings. The Appellate Court has already added your petitioner as a respondent but inasmuch as your petitioner is one of the co-owner of the suit premise, the petitioner intends to be transposed to the category of the appellants for the purpose of contesting the appeal.
7. Your petitioner states that interest of the petitioner is not averse to the interest of the appellant to this proceeding and in case of transposition of the petitioner, there will be no clash of interest."
The said application was disposed by an order dated 4th March, 2004 by which the said application was directed to be heard along with the appeal keeping all points open with liberty to the applicant, namely Jai Chand, to make his submission on all questions as may arise in course of hearing of the appeal. The appeal and the application was dismissed by a Division Bench on 14th March, 2014. The Division Bench held that the appeal was maintainable at the instance of Saday as Saday became a stranger to any proceeding in respect of the suit property in view of assent to legacy by the executors in favour of the ten grandchildren. It was observed that the Will was probated by an order dated 20th May, 1988 in Case No.16 of 1985 and thereafter the suit property was released by the executors in favour of the aforesaid legatees. The Division Bench held that, therefore, the aforesaid legatees were now under the obligation to execute the deed of conveyance in terms of the consent decree dated 5th May, 1959 passed in Suit No. 2972 of 1953. The Maharaja was a party to the above consent decree and the added respondent in the appeal were under an obligation to give effect to the above consent decree after release of the suit property in their favour in terms of the order dated 20th May, 1988 passed in Probate Case No. 16 of 1985. Under such circumstances, the appeal was held to be not maintainable at the instance of Saday. The application filed by Jai Chand was also dismissed by the same order.
However, the time to comply with the directions for execution of the conveyance was extended for a period of 3 months from 14th March, 2014 since in the meantime the stipulated time to comply with the order passed by the learned Single Judge had expired. Special Leave Petitions by Saday Chand Mahatab and Jai Chand Mahatab were rejected summarily without reasons.
On these facts, the quality of the challenge as to the executability of the said decree needs to be determined.
Mr. Anindya Kumar Mitra, learned Senior Counsel appearing on behalf of the applicants has submitted that the consent decree provided that the deed of conveyance would be signed and registered against payment within 31st May, 1959 and time would be deemed to be the essence of the contract. However, no payment was made within 31st May, 1959 and accordingly no conveyance was executed. Being unable to enforce the said consent decree a second suit was filed being C.S. 994 of 1959 praying for specific performance of the alleged agreement between Murlidhar Saraf and Jugol Kishore Jajodia for sale of Tiretta Bazar property by Murlidhar Saraf in favour of Jajodia at a consideration of Rs.5.50 lakhs. Maharaja Uday Chand was not a party to the agreement but he was impleaded as defendant no.3 in the suit. During the pendency of the suit, Maharaja died on 10th October, 1984 bequeathing his properties in favour of 10 grand children. On 20th May, 1988 the Will was probated. Between 20th August, 1991 and 15th June, 1998 the executors of the said Will from time to time registered deeds of release and assent to legacy in favour of ten legatees of Tiretta Bazar properties whereupon the Tiretta Bazar property vested absolutely in them.
It is submitted that the plaintiffs, although aware of such facts, did not file an application for substitution of the legatees in respect of the Tirreta Bazar property. The plaintiffs were informed of the probate and release of the said property by the letter of M/s. R.C Kar dated 2nd August, 2002. The grandsons are the legatees under the Will. They have now become the absolute owners of the Tiretta Bazar property. However, they were not made parties either in G.A. No. 2426 of 2002 or in the suit. Upon publication of notice in the news papers on 14th July, 2002 by the plaintiffs M/s. R.C. Kar, Advocate acting on behalf of the Maharaja by the letter dated 2nd August, 2002 informed the plaintiffs that under the Will of the Maharaja, residual estate including premises no.22, Rabindra Sarani, Calcutta has been released by the executors in favour of the ten grandchildren, and the names and addresses of them were set out in the letter. Even thereafter, the grand children were not given notice of G.A. No. 2426 of 2002. On 13th September, 2002, Saday Chand in his affidavit has clearly stated that he is not the owner of the Tiretta Bazar property and disclosed the names of ten grand children who have now become owners of the said property as the legatees under the Will. Saday Chand opposed the interlocutory application. Saday Chand was an intestate heir of the Maharaja and not an heir and legal representative of the Tiretta Bazar property.
Mr. Mitra has submitted that the appeal preferred by Saday Chand was opposed by the plaintiff on the grounds that he has no locus or interest in that Tiretta Bazar property. On 25th November, 2003, the Hon'ble Division Bench had directed addition of 10 grandchildren (legatees) in the memorandum of appeal without prejudice to their rights and contentions.
Jai Chand Mahatab had made an application in the said appeal for intervention and his transposition as the appellant being G.A. No.292 of 2004. The Hon'ble Division Bench directed that the application would be taken up for hearing along with the appeal.
The Hon'ble Division Bench in disposing of the appeal have accepted the preliminary objection raised on behalf of the plaintiffs that Saday Chand Mahatab had no right, title or interest over the Tiretta Bazaar property and was, therefore, not a party aggrieved by the order under appeal and, therefore, the argument on the merits of the case cannot be considered; and accordingly, the appeal was dismissed. The application made by Jai Chand Mahatab was also dismissed on the ground that since the appeal was not being entertained, his application was also to be dismissed. Special leave petitions by Saday Chand Mahatab and Jai Chand Mahatab were rejected summarily without reasons.
Mr. Mitra submits that the decree which is now sought to be executed is null and void on the ground that C.S No.994 of 1959 had already abated before the application being G.A. No. 2462 of 2002 was filed. Therefore, the court had no jurisdiction to pass any order in an abated suit. The right, title and interest in Tiretta Bazaar property had vested in favour of the grandchildren of Late Maharaja by virtue of the Will on and before 15th June, 1998. The grandchildren were never substituted nor were they brought on record. Therefore, the suit had abated prior to filing of GA No.2426 of 2002 on which the impugned order was passed directing execution of conveyance within a period of three months from the date of passing of the impugned order.
Mr. Mitra has referred to Order 22 Rule 4 of the Code of Civil Procedure and three decisions, namely, Maharaja Radha Prashad Singh vs. Lal Sahab Rai & Ors. reported at 17 IA 150, Pukhraj Jeshraj Marwadi vs. Jamsetji Rustum Irani reported at AIR 1927 Bom 63 and Manikyanayanim Varu & Ors. vs. Lakshinarasimha Sastrulu & Ors. reported at AIR 1933 Mad 43 and submits that it has been consistently held by all the courts that the legal heirs or legal representatives who were not brought on record is not bound by the decree. Accordingly, the decree of the learned Single Judge is not binding on the grandchildren as they were not made parties in the suit.
Under the Indian Succession Act, 1925, after grant of probate of the Will of Maharaja and assent to legacies by the Executor, the properties would vest in the legatees under the Will with effect from the date of the death of the testator i.e. October 10, 1984. Moreover, upon probate of the Will being granted, only legatees under the Will would be the legal representatives of the testator in respect of Tiretta Bazar property and not the intestate heirs of the testator. Executors appointed by the Maharaja were no longer the legal representatives of the Maharaja on the date of the order. They became functus officio upon giving assent to legacy in favour of the legatees.
The order dated 23rd May, 2003 directing execution of the conveyance by the heirs and legal representatives of Late Maharaja without making the legal representatives of the deceased Maharaja namely the ten legatees in G.A. No.2426 of 2002 as parties to the suit is void and not executable against the legatees under the Will. Significantly, the said decree does not specify or name any heir or legal representative of the deceased Maharaja who would execute the conveyance.
Mr. Mitra has referred to Section 336 of the Indian Succession Act, 1925 and submits that the executors after having assented to the legacy ceased to become legal representative and in absence of the legal heirs being brought on record, no decree could have been passed against such non-party legal heirs. Mr. Mitra has submitted that the decree was passed against a dead person and non-parties to the suit. It is submitted that the applicants 8, 10, 12, 13 and 14 have not received notices. However, it is admitted that Jai Chand, who is one of the applicants before the Division Bench, had due notice of this proceeding.
Mr. Mitra, however, has raised a larger issue as to the effect of the abatement of suit by operation of law. The learned Senior Counsel has referred to order 22 of the Code of Civil Procedure and has submitted that irrespective of the fact whether the grandchildren have been served with notices, the plaintiffs are not absolved from taking steps for substitution of such legal heirs as it is a mandatory requirement under the law and this cannot be dispensed with merely by serving notices upon such grandchildren. The service of notice is wholly unnecessary. Mr. Mitra by referring to the decision of the Hon'ble Supreme Court in Union of India vs. Ram Charan (deceased) reported at AIR 1964 SC 215 has submitted that an application for substitution is necessary and mandatory. It is submitted that mere notice is not enough and the plaintiff must apply for and bring in the legal representatives of the deceased on record. The learned Senior Counsel has also referred to the decision of the Hon'ble Supreme Court in Jaladi Suguna (deceased) vs. Satya Sai Central Trust and Ors. reported at (2008) 8 SCC 521 (paragraph 12) to demonstrate that service of notice is not the appropriate procedure to be followed for substitution and does not absolve the plaintiff from taking steps as contemplated and required under Order 22 Rule 2 of the Code of Civil Procedure.
Mr. Mitra has submitted that as soon as the original defendant had died, the suit abated against him by operation of law and unless steps are taken for substitution in accordance with Order 22 of the Code of Civil Procedure, the suit against the respondents would stand abated. It is submitted that the abatement is automatic. Admittedly, no application for substituting or adding the legatees under the Will of Maharaja in Suit No. 994 of 1959 has been made. The legatees have not, in fact been added in the Appeal. Even the Cause Title of the Appeal has not been amended. In this contest, the learned Senior Counsel has referred to the decision of the Hon'ble Supreme Court in Madan Naik (dead by LRs) and Ors. vs. Mst. Hansubala Devi and Ors. reported at AIR 1983 SC 676 (paragraphs 5, 9 and 12), Mithailal Dalsangar Singh And Ors vs Annabai Devram Kini And Ors reported at (2003) 10 SCC 691 (paragraph 8-10) and Gurnam Singh (through LR) and Ors. v. Gurbachan Kaur (through LR) reported at (2017) 13 SCC 414 (paragraph 13-22).
Mr. Mitra has referred to Order 1 Rule 10(4) and submits that the procedure for addition of parties had also not been followed in the instant case. Mr. Mitra has also referred to Order 6 Rule 18, Section 107 (2) and Order 41 Rule 14 (4) of the Code of Civil Procedure and submits that the observation made by the Hon'ble Division Bench in its order dated 14th March, 2004 to the effect that it is not in dispute that by virtue of the Will, the right, title and interest of the suit property have not vested in favour of ten added respondents is a patent mistake as the procedure for addition of such grandchildren were never followed and, in fact, there has been no order for addition of 10 grandchildren at all. It is submitted that Order 41 Rule 14 (4) of the Code of Civil Procedure does not apply to added respondents.
The grand children of Late Maharaja were, however, not actually added as parties in the appeal and no notice of appeal as required under Chapter 31, Rules 6 and 8 of the High Court Original Side Rules in the manner as prescribed in Appendix "L" of the High Court Rules has been served upon such legal heirs. The procedure has not been followed. The order of the Division Bench dated 25th November, 2003 has not been complied with by the parties to the appeal. In absence of any notice of appeal being served upon the applicants, the order passed against them would be non-est, without jurisdiction and a nullity; and in this regard Mr. Mitra relied upon the decision of the Andhra Pradesh High Court in Magadri Satyanarayana vs. B. Jayaramarao and Ors. reported at AIR 1990 AP 160.
Mr. Mitra has submitted that the decree is in the nature of a joint decree and if it void against some of the parties it is void against all as the decree is not severable. Mr. Mitra in this regard as referred to the decision of the Calcutta High Court in Baser Sheikh and Ors. vs. Fazle Karim Biswas and Ors. reported at AIR 1915 Cal 786.
Mr. Mitra has submitted that even otherwise, the second suit is not maintainable as the execution of the deed of lease as prayed for in the instant suit is an essential part of subject matter of the present suit which has already been decided by the earlier suit and accordingly there cannot be a decree upon a decree already passed. The remedy is not in filing a suit but it lies elsewhere and in this regard Mr. Mitra has referred to the decision of the Calcutta High Court in Rabindra Nath Roy Chowdhury and Ors. vs. Dhirendra Nath Roy Chowdhury and Anr. reported at AIR 1940 Cal 82 for the proposition that the only remedy for a plaintiff to enforce an obligation under a decree would be execution of a decree and not by a suit. Reliance has also been placed on Sadananda Saha and Ors. v. Union of India reported at AIR 1956 Cal 317 (paragraphs 8 and 9) for the proposition that Section 47 CPC is a bar to institution of suit in respect of any matters which have already been the subject matter of a decree passed in an earlier suit and if the Court entertains such a later suit, the Court would be acting without jurisdiction. Reliance is also placed on Nebubala Sardar v. Abdul Aziz Baidya reported at AIR 1991 Cal 402 (paragraph 6) to submit that the plaintiff ought to have levied execution in terms of the decree instead of maintaining an independent suit for enforcement of a contract contained in the consent decree.
Mr. Mitra has contended that the decree sought to be enforced against the applicant is void ab initio as no notice of appeal was served upon the applicants. Moreover, the rights of the applicants have not been decided by the learned Single Judge. The issues raised by the applicants were not before the learned Single Judge and accordingly, the ratio of the said decision is not binding on the applicants. The appeal court has dismissed the appeal on the ground that the appellant has no locus to maintain the appeal. It was not a decision on merits deciding the rights of the applicants. The applicants were never heard. Jai Chand who wanted to intervene was not allowed on the ground that the appeal is not maintainable. The order of the Trial Judge never merged with the order of the Division Bench. The doctrine of merger is not applicable in the instant case as the appellate court has dismissed the appeal on the ground of locus of the appellants whereas the trial judge passed the decree on debt considerations. Mr. Mitra has referred to a decision of the Hon'ble Supreme Court in S. Shanmugavel Nadar vs. State of T.N. and Another reported at (2002) 8 SCC 361 where the doctrine of merger was discussed at length. Mr. Mitra submits that what merges is the operative part, that is, the mandate or decree issued by the court and if the superior forum affirmed the order of the Trial Judge for reasons different from the one assigned by the single Judge what would merge in the order of the superior court is the operative part of the order and not the reasoning of the trial court. Mr. Mitra has referred to paragraphs 10, 11, 12 and 17 of the judgment and submits that the Division Bench did not decide the rights of the applicants which the applicants are entitled in law to urge in the said proceeding after they were properly added. It is submitted that although the learned Single Judge was informed by Mr. R.C. Kar, the learned counsel representing Saday in the said proceeding about the death of Maharaja, about the existence of a will and bequeath made under the will to his grandchildren, no attempt was made by the plaintiff to substitute the legal heirs. The learned Single Judge without requiring the plaintiffs to substitute the present applicants has proceeded to hear and dispose of the matter and pass the judgment in absence of the necessary and proper parties which has made the order void ab initio since on the date of the decree the suit has abated. Mr. Mitra argued that the order of the learned Single Judge suffers from inherent lack of jurisdiction and the said order does not get merged with the order of the Division Bench as the Division Bench has affirmed the order of the Trial Judge on completely different grounds, that is to say, that the appellants has no locus to maintain the appeal. The judgment of the Division Bench did not decide as to whether the legal heirs of Maharaja would be otherwise entitled to challenge the judgment of the learned Single Judge. Mr. Mitra in this regard has specifically referred to the observation of the Division Bench almost at the end of the judgment where the Division Bench has observed "it has been held hereinabove that this appeal is not maintainable at the instance of the appellant. Needless to point out that his argument on merits of this case cannot be considered."
The attention of the court is drawn to the earlier part of the judgment where it has been observed that "this appeal can be taken up for hearing on merit only in the event the transposition of the added respondents is permissible in according with law".
It is submitted that the application of the added respondent Jai Chand was also dismissed without any reason. It was dismissed presently in view of dismissal of the appeal preferred by Saday. This judgment of the Division bench has not decided the right of the applicants.
Mr. Mitra has submitted that the Division Bench only dismissed the appeal on the ground of incompetency of the appellant therein but the ratio of the Division Bench judgment still stands valid. It is his submission that this court in deciding the question of nullity or otherwise of the trial court judgment is bound by the ratio of the Division Bench judgment.
Mr. Mitra, has submitted that the judgment is a nullity as the learned Single Judge did not have any jurisdiction over the subject matter of the dispute and was not competent to grant the relief.
Mr. Mitra has referred to the plaint as well as the various terms of the consent decree and submits that there was no material available on record to show that part of the consent decree was realized and/or adjusted. Any order passed by a court varying such consent terms would be without competence and accordingly any relief granted in exercise of a jurisdiction which the court does not possess would be a nullity in the eyes of law. The court had no jurisdiction to vary the consent decree dated 5th May, 1959 without the consent of the parties. The consent decree did not provide that the conveyance is to be executed in line with the conveyance kept with S.C. Ray Chaudhuri & Co., who has not been Advocate on Record of Maharaja, but Advocate on Record of Jajodias. This is modification/adjustment of the Consent Decree. No such modification/ adjustment has been certified by the Court under Order XXI, Rule 2 of the CPC and the Court is barred from taking cognizance under Sub-Rule (3) of Order XXI, Rule 2 of the CPC.
11. There has been further modification of the Consent Decree. The Conveyance was to be executed under the consent decree within 31stMay, 1959 and that too, against payment of full price. This time was made essence of the transaction. The Court had no jurisdiction to vary substantive parts of the consent decree. The consent decree held that the plaintiffs have ceased to have any right to impose the consent decree after 31st May, 1959 inasmuch as they have not paid or even tendered the agreed price. It has not been established or held even by the Trial Court that Maharaja had consented to execution of the decree beyond the time fixed by the Consent Decree. No application was made under Order XXI, Rule 2 of the CPC for recording or certifying any modification of the Consent Decree. In this context, Mr. Mitra has referred to the oft quoted decision of the Hon'ble Supreme Court in Official Trustee, W.B. and Ors. v. Sachindra Nath Chatterjee and Anr. reported in AIR 1969 SC 823 in which reference was made to the judgment delivered by Acting Chief Justice Mukherjee in Hridoy Nath Roy v. Ramchandra Barna Sarma reported at AIR 1921 Cal 34 (FB). It is submitted that it has been recognized in the said decision that before a court can be held to have jurisdiction to decide a particular matter, it must not only have jurisdiction to try the suit brought but also have the authority to pass the orders sought for. The learned Senior Counsel submitted that since the trial court did not have the authority to vary the consent terms without the consent of the Maharaja, it did not have the authority to pass the orders sought for in the application. It is submitted that the Court had no jurisdiction to grant the reliefs of the nature passed in an interlocutory application being G.A. No. 2426 of 2002 filed in the Suit No. 994 of 1959. The Court had no competence to grant reliefs as granted on 23th May, 2003. The suit was not heard, although Written Statement was filed by the Maharaja. In the interlocutory motion being G.A. No. 2426 of 2002, the Court had no jurisdiction to pass a decree or order of the nature passed. On an interlocutory application filed in a suit, the Court is empowered to pass decree without trial of the suit under Chapter XII Rule 6, i.e. judgment on admission or under Order XXXVII of the Code of Civil Procedure. A chartered High Court has been empowered to pass final decree without trial under Chapter 13A of the High Court Rules, Original Side. G.A.No.2426 of 2002 did not come under any of the above three categories of proceedings, in which summary decree could be passed by the Civil Court including Chartered High Courts. In this context, reliance has been placed on paragraphs 12, 13, 27 and 28 of Sachindra Nath Chatterjee (supra).
In the same vein, Mr. Mitra has referred to the decision in Kaushalya Devi and Ors. v. K.L. Bansal reported in AIR 1970 SC 838 and Bahadur Singh Jain and Anr. v. Munisubrat Dass Jain and Anr. reported in (1969) 2 SCR 432. Mr. Mitra submits that a decree is null and void when the Court has no jurisdiction over the subject matter of the suit in respect of which decree has been passed and Court has no jurisdiction to grant relief as claimed in the particular proceeding in which a decree/order has been passed. It is submitted that the decision in Bahadur Singh Jain (supra) is an instance of a decree being adjudged null and void on the ground that the Court had no jurisdiction to entertain the proceeding in which reliefs for amendment of Trust was granted. The subject matter in Bahadur Singh Jain (supra) was amendment of Trust Deed and reliance is placed on paragraph 12 and 13 of the judgment. Further, in Kaushalya Devi (supra), a decree was adjudged as being void by the Executing Court on the ground that the decree passing Court had no jurisdiction to grant the reliefs as granted by the decree, although there was no contention that the Court had jurisdiction over the subject matter of the suit. In the above cases, the Court had passed a decree for eviction of the tenant although no ground for eviction under the Tenancy Act was established. The decree was adjudged null and void in proceeding under section 47 of the Code of Civil Procedure, 1908, although the Court had jurisdiction over the subject matter of suit, namely, eviction of tenant. No contention was raised that the Court had no jurisdiction to entertain the suit. Additionally, reliance is placed on Chief Engineer, Hydel Project v. Ravinder Nath and Ors. reported at AIR 2008 SC 1315 (paragraphs 17-18). In that case, the civil court jurisdiction was barred under the Industrial Disputes Act. But the Civil Court passed a decree upon contest and no objection was raised either before the Trial Court or before the High Court. Objection was raised for the first time in the Supreme Court and it held the decree to be without jurisdiction (forum non judice) as the Court lacks jurisdiction the over the subject matter of the suit and accordingly, any decree/order passed in the suit would be nullity.
In the alternative, it is submitted that if the contentions are rejected, the Maharaja to the knowledge of everybody, including the Court, had died on 10th October, 1984 and the decree so far as it directed the Maharaja, a dead person, to execute conveyance, is a nullity. The said decree dated 23rd May, 2003 does not specify who the heirs and legal representatives of Maharaja are. The Appellate Court has been pleased to hold as contemplated by the Decree Holder that the heirs of the Maharaja are the 10 legatees under a Will of Maharaja, in respect of Tiretta Bazar property and his (Late Maharaja's) intestate heirs have no right or locus standi in respect of the said property. On that ground the appeal filed by an intestate heir (Saday) was dismissed, without going into merits of the case. Admittedly, the said legatees under the Will were not made parties to the Suit nor to the Appeal. This would be apparent from a perusal of the Cause Title of the Appellate Court Order and no notice of appeal was issued to them. Accordingly, such decree was in violation of the principles of natural justice and therefore, void as against the legatees under the will. Mr. Mitra submits that it is trite law that any order passed in violation of the principle of natural justice is void ab initio. The order refers to the order of the trial judge and the division bench and submits that admittedly the grandchildren of the Maharaja were not added in the proceedings. Mr. Mitra submits that although the trial court was informed that the property in question has been bequeathed in favour of 10 grandchildren, no attempt was made to bring on record the said 10 grandchildren. It is submitted that as soon as the court is informed about the probate and the discharge of the executors, the suit against the Maharaja would stand abated by operation of law unless steps are taken to substitute the said legal heir. Hence any order passed without substitution of the legal heirs affecting the rights of the grandchildren would be in violation of the principles of natural justice. Moreover, the court loses its jurisdiction to pass any order in respect of the said grandchildren unless the abatement is set aside and such legal heirs are brought on record. Mr. Mitra has referred to the decision in R.B. Shreeram Durga Prasad and Fatehchand Nursing Das v. Settlement Commission (IT & WT) and Anr. reported in (1989) 1 SCC 628and Institute of Chartered Accountants of India v. L.K. Ratna and Others reported in (1986) 4 SCC 537 for the proposition that any order passed in violation of the principles of natural justice is void ab initio. It is submitted that a violation of natural justice at the time of passing of decree is not cured even by sufficiency of natural justice before the Appellate Court and thus there has been no merger of the order of the trial court with the order of the appeal court. Reliance for this proposition has been placed on paragraph 17 of L.K. Ratna (supra).
To sum up the submission of Mr. Mitra, the decree is inexecutable against the grandchildren of the Maharaja as the Court did not have the jurisdictional authority and the competence to grant the relief in favour of the decree holder against the said grandchildren. The decree dated 23rd May, 2003 is null and void on both the grounds urged, or either of them, namely, no jurisdiction of the trial Court over the subject matter and no jurisdiction of the trial Court to pass such decree on an interlocutory motion.
Mr. Moloy Kumar Ghosh, learned Senior Counsel representing the plaintiffs/decree holders has submitted that the objections raised by the present applicants are unsustainable in law. It is a ploy to delay the execution of the decree. Mr. Ghosh submits that all the applicants were aware of the pendency of the interlocutory applications as well as the appeal. The learned Counsel has referred to the communication made by R.C. Kar, Advocate representing Saday Chand, by letter dated 2nd August, 2002 in the inter locutory proceeding and the communications made by Mr. Subhrangshu Ganguly, Advocate-on-Record of the decree holder, to the ten grandchildren of the Maharaja at the addresses furnished by Mr. Kar. It is submitted that all the letters were sent to the respective addresses and none of the notices have been returned unserved. In any event, the communications were made to the said grandchildren of the Maharaja on the basis of the information furnished by Mr. R.C. Kar as the plaintiffs/decree holder has no means to ascertain the whereabouts of the said persons. It is submitted that once the letter is dispatched to the addresses furnished on behalf of Saday Chand and the said letters were not returned unserved, it has to be presumed that the notices have been duly served upon the addressees. Saday Chand never said that the addresses furnished by him were wrong or incorrect. In any event, it was the obligation of Saday to furnish such information. Mr. Ghosh has referred to the application filed by the respective applicants and submits that the applicants never dispute the service of the execution application upon the added respondents in terms of the order dated 23rd November, 2002. The applicants were aware of the appeal and the fact that the applicants were added as party respondents in the appeal. In fact, one of the applicants, namely Jai Chand, in his application for transposition has admitted that he along with the other grandchildren of the Maharaja were added as party respondents in the appeal, which clearly shows that all the grandchildren were aware of the pending proceeding. It is submitted that Jai Chand never contended that he had not received the notice sent by Mr. Subhrangshu Ganguly, the advocate for the decree holder, on 18th September, 2002. It is submitted that in fact, all the grandchildren were sitting on the fence and watching the proceedings.
It is submitted that the contention of the applicants that the suit has abated and hence the present applicants are not bound by the decree may not be the correct position of law as there is a distinction between Order 22 Rule 3 and 4 and Order 22 Rule 10 of the Code of Civil Procedure. Mr. Ghosh submits that under the Code of Civil Procedure, there is no provision which says that failure to add a person upon whom an interest devolves would result in abatement of the suit or would render any decree passed in such proceeding void. Mr. Ghosh submits that in the instant case, there is devolution of interest upon the grandchildren of the Maharaja under Order 22 Rule 10 of the Code of Civil Procedure and accordingly, the question of abatement of the suit does not arise. Mr. Ghosh submits that under Section 211 of the Indian Succession Act, 1925, the executor of a deceased person is his legal representative for all purposes and all the properties of the deceased person vests in him. After obtaining probate, the executor is required to transfer the subject of the bequest of the legatee. Unless this transfer is complete, the title of the legatees to the property is not complete and in this connection, he has referred to Section 333 and Section 335 of the Indian Succession Act, 1925.
Mr. Ghosh submits that Order 22 Rule 4 would not apply in the instant case as executors were substituted soon after the death of the Maharaja, by an order of the court on 13th May, 1985 and continued to represent the Maharaja in the said proceeding. The release of the property in favour of the beneficiaries is in effect the devolution of interest on the legatees, and accordingly Order 22 Rule 9 and not Order 22 Rule 4 would be applicable in the instant case. In this connection, Mr. Ghosh has relied upon the decisions in Rikhu Dev, Chela Bawa Harjug Dass vs Som Dass (Deceased) reported at AIR 1975 SC 2159, Dhurandhar Prasad Singh vs Jai Prakash University And Ors. reported at AIR 2001 SC 2552 and Jaskirat Datwani Vs. Vidhyavati & Ors. reported at AIR 2002 SC 2180.
Mr. Ghosh submits that the said decisions have clearly stated that if the person on whom the interest devolves had the knowledge of the proceedings and such person avoids the proceeding, he does so at his own peril. Mr. Ghosh has specifically referred to paragraph 5 of Jaskirat Datwani (supra) and submits that the ratio of the said decision would squarely apply in the present case. In the instant case, the record would show that all the grandchildren were all throughout aware of the pending proceedings but save and except Jai Chand none of the other grandchildren applied before the Court. Mr. Ghosh submits that it is inconceivable that Jai Chand was aware of the appeal but the other grandchildren would be unaware of such proceeding. In fact, the carriage of proceedings in the appeal was with Saday Chand and significantly Jai Chand in his application for transposition has admitted service of the order dated 23rd November, 2003 as well as the copy of the application for stay and he had obtained the paperbook containing the paper of the trial court. Mr. Ghosh refers to the application by Jai Chand for transposition of him to the category of appellant and submits that in the said applications, Jai Chand has contended that he is the co-owners of the suit premises and being one of the main parties who would be affected if the order of the trial court is sustained and it is imperative that he should be transposed to the category of the appellant (Saday) for the purposes of carriage of proceeding related to the appeal. It is submitted that it is too late in the day for the applicants to submit that the added respondents were not given any notice of the appeal. Mr. Ghosh refers to the cause title of the application filed by Uday Chand to show that the present applicants were shown as added respondents by Uday Chand which goes to show that all the grandchildren were added and they had due notice of the proceedings.
Mr. Ghosh submits that it is not being alleged that the relationship between the applicants and Saday were strained and Saday has deliberately furnished wrong addresses.
Mr. Ghosh further submits that it is also not the case of Jai Chand or any of the other applicants that they do not maintain a cordial relationship and having regard to the fact that a joint application has been filed by the respondent no. 7, 8, 9, 10, 11, 12, 13 and 14, it is clear that they were all throughout aware of the pending proceeding. It is not being alleged that Jai Chand did not inform the other applicants about the pendency of the appeal or the order dated 23rd November, 2003. The conduct of the parties would show that all the applicants were aware of the pendency of the appeal and in fact Jai Chand espoused the cause of the others. It is submitted that by reason of dismissal of the appeal as well as the application of Jai Chand by the appellate court and the order of dismissal of the special leave petition preferred by Jai Chand, it is no more open for the present applicants to attack the decree at this stage as null and void.
Mr. Ghosh submits that even if it is assumed for the sake of argument that the order of the trial court is incorrect, it cannot be said that it is a void order as there was no requirement to add the grandchildren in the said proceeding and it was for the grandchildren to make appropriate application. In any event, absence of notice to the grandchildren would not render the decree void as the decree is otherwise enforceable against the executor who is a legal representative within the meaning of Section 211 of the Indian Succession Act, 1925.
Mr. Ghosh has submitted that it is interesting to note that Tilak Mehera, the deponent to the application under Section 47 of the Code of Civil Procedure has stated that all the applicants have received the execution application, which presumes that the said applications were received by each of the applicants at the addresses mentioned in the cause title of the execution application. It is submitted that it is not in dispute that Mr. R.C. Kar, Advocate and Solicitor, had furnished the details of the 10 grand children along with their respective addresses on the instruction of Saday Chand. The execution applications were sent to the same addresses to which the notice dated 2nd August, 2002 was sent. Mr. Ghosh wonders if the present applicants had received the copies of the execution applications at the same addresses to which the notices were sent what prevented the said noticees to appear and contest the proceeding before Justice Ghosh in the trial court. It is submitted that although in the affidavit-in-reply, an improvement is sought to be made by Tilak Mehera on behalf of the applicants that few of the applicants were not, in fact, residing at the addresses furnished by Saday Chand but that is a clear afterthought as before that there has been an admission of Tilak and all the other applicants. They were served with the execution applications at the addresses mentioned in the execution applications and all such addresses where the same addresses furnished by Mr. R.C. Kar in its communication to Mr. Ganguly by a letter dated 2nd August, 2002.
This argument was further elaborated by referring to Sections 211, 332, 333 and 336 of the Indian Succession Act, 1925 in which the power of the executors to deal with the estate of the deceased are discussed. Mr. Ghosh has referred to the several deeds of assent disclosed in the petition by the applicants to show that the recitals of each deed of assent has clearly recorded that Saday Chand has disputed the right of the respective legatees in relation to the Tiretta Bazar property and such objections form part of Schedule B Part III of each of the several deeds which goes to show that Saday Chand had never accepted the right of the legatees to the said property. Mr. Ghosh has also referred to the order passed by Justice Prabir Kumar Majumdar, as His Lordship then was, while disposing of the probate proceeding in which it is observed that the Court is not deciding the title to the properties mentioned in the affidavits filed by the Caveator, namely, Maharaj Kumar Saday Chand Mahtab and it is recorded that the executors and the parties concerned have taken note of the fact of the bequeath in favour of the Caveator and the H.U.F. properties mentioned in their affidavits which were wrongly included in the affidavit of assets.
On the basis of such objections, it is uncertain if the applicants have made out a clear case evidencing their interest in the property itself. This is why Mr. Ganguly has issued the letter of 18th September, 2002 as "without prejudice". The plaintiffs could not be aware of such documents and the nature of objections, and had accordingly proceeded on the basis that the executors are continuing and have accordingly issued the said notices without prejudice. Mr. Ghosh in this context has referred to Section 3 of the Evidence Act and submits that on the aforesaid set of facts, there is an existence of probability that a prudent man under the circumstances would believe or suppose that the executors are continuing, and the administration of the estate is not complete. It is only the legatees on whom the title devolves, is aware of the fact that whenever the title passes on to them they will have to fight the disputes over the property and the same is evident from clause 3 of each of the deeds now disclosed in this proceeding.
Mr. Ghosh has distinguished the decisions relied upon by the applicants. It is submitted that the decision reported in Rabindra Nath Roy Chowdhury (supra) would require the applicants to approach the Appellate Court since they had knowledge of the proceeding, inasmuch as the said decision makes it clear that if the same is not done, then the Court cannot convert the suit into a matter to be dealt with under Section 47 of the Code of Civil Procedure. The judgments cited on Order 22, Rules 4 and 9 are not applicable as the present dispute is governed by Order 22, Rule 10 of the Code of Civil Procedure, inasmuch as there is no abatement of the suit as, soon after the death of the Maharaja the executors appointed under the Will were immediately brought on record. In distinguishing the judgment reported at Satyendra Nath Bose v. Bibhuti Bhusan Bhar reported at AIR 1963 Cal 104, it is submitted that the decree sought to be executed is the decree passed by the Learned Single Judge and affirmed by the Appellate Court. The certified copies of the said two decrees are on record. Hence, there has been a compliance of the requirement under the Original Side Rules.
Mr. Ghosh submits that the said deed also in Clause 3 of the recitals has referred to the pending litigations between the parties and require the legatees to take appropriate steps in the pending litigation.
Mr. Ghosh has submitted that the Will has described the legatees as residual legatees and in the deed of assent this property is mentioned in Schedule B Part III with objections.
Mr. Ghosh has referred to one of the several deed executed between the executors and the beneficiaries described as deed of transfer and submits that Mr. R.C. Kar, Solicitor, represented the beneficiaries in the said proceeding. Mr. Ghosh submits that legal estate was represented by the executors and the title of the beneficiaries and/or legatees are not perfected till there is an ascent to legacy and transfer is affected in favour of the legatees since it is only in that situation that "the full title passes". In this context, Mr. Ghosh has referred to a Division Bench judgment of our Court reported in Khagendra Nath Mookerjee v. Khetra Nath Pal, AIR 1923 Cal 21:
ILR 50 Cal 171.
Mr. Ghosh submits that when Mr. Ganguly has issued the notice of plaintiffs to the 10 grand children of Maharaja on the basis of the decision of the Hon'ble Supreme Court in Dhurandhar Prasad (supra) filed. The said decision has clearly recognized that on devolution of interest it is the obligation of the person on whom the property devolves to take steps in the matter failing which the duty casts upon the original defendants would remain and the subsequent transferee, would be bound by a decision in the suit against the original defendants. Mr. Ghosh submits that all that was required in the suit was a direction upon the executors to convey the suit property in favour of the plaintiffs which the Maharaja had agreed to convey under the consent decree.
Since the Maharaja died leaving a Will the estate is represented by the executors and it was their obligation to convey the property.
Accordingly, the direction passed by the Court cannot be said to be without jurisdiction. The each of the 10 grand children had due notice of the pending proceedings. The same is adequately reflected from each of the deed of assents disclosed in this proceeding. Mr. Ghosh submits that it unbelievable that while some of the defendants have received the notices and few at applicants in this proceeding have received the notices at the same addresses to which the notices were sent earlier, none of them had any knowledge or notice of the interlocutory proceeding or of the appeal. Mr. Ghosh submits that the present applicants could have approached the appellate court challenging the order passed by Justice Ghosh on 23rd May, 2003 and having not done so, they cannot now challenge the decree under Section 47 of the Code of Civil Procedure. Mr. Ghosh submits that neither Saday Chand nor Jai Chand had raised the issue of abatement of suit either before the Division Bench or before the Hon'ble Supreme Court. Mr. Ghosh has produced the Special Leave Petition filed by Jai Chand and submits that the grounds on which the order of the appellate court was challenged did not refer to abatement of suit as a ground for setting aside of the decree.
In distinguishing the judgments in Sadananda Saha and Ors.
(supra) and Som Dev and Ors. v. Rati Ram and Anr. reported at AIR 2006 SC 3297, it is submitted that the said decisions are not authorities for the proposition that if the court has decided a matter which may be incidentally based on a consent decree, it would be an inherent lack of jurisdiction. It is submitted that the argument of the applicants are on illegality of the judgment of the Learned Single Judge.
Mr. Ghosh submits that it is now clear that all the applicants were aware of the appeal, and thereafter Jai Chand has urged all the points that could have been available to the other applicants. Since it is a case of residuary legatees, in absence of any disclosure made to the plaintiffs of the deed of assent or legacy, the procedure adopted by the plaintiffs cannot be held to be irregular.
In reply, Mr. Mitra has submitted that the Maharaja was sued in his personal capacity as owner of the Tirretta Bazar property. Naturally, upon his death, the subject property devolved upon the legatees to whom it has been bequeathed under the Will of Maharaja, which has been probated and the executor assented to the legacies between 28th August, 1991 and 15th June, 1998. The plaintiffs in Suit No. 994 of 1959 were informed of the above by a letter 02nd August, 2002 written by the Advocate-on-record of Maharaja Kumar Saday Chand Mahtab. Saday Chand Mahtab in his affidavit affirmed on 13th September, 2002 has stated this. Assent to legacies by the executor is only to perfect the title as evident from Section 332 of the Indian Succession Act, 1925. Under Section 333(2) of the Indian Succession Act, no formal form is required for assent to legacy. It was not transfer of title to the legatees. Mr. Mitra has referred to Section 336 of the Indian Succession Act and submits that the Estate vests in the legatees with effect from the date of death of the testator. It is submitted that the applicant's case is one of succession to a property and not the case of accession of any right.
With regard to the judgments relied on by the respondents, it is submitted that out of three judgments cited by the respondents/plaintiffs two related to cases of accession of right to an office or post and the third one was of sale of the property during the pendency of the suit, that is to say, creation of title to the suit property after filing of the suit. Three judgments cited are with regard to an application being made for bringing on record the parties as defendants.
The instant case was not a case of accession of right or to an office or post, after filing of the suit. The applicant's case is for succession to private property. Order XXII Rule 10 of the Code of Civil Procedure applies only in all other cases, that is to say, where Order XXII Rules 3 and 4 of the Code of Civil Procedure do not apply. In the applicant's case Order XXII, Rule 4 applies. No argument that Order XXII, Rule 4 is not applicable in this case has been made. In this case, the suit was filed against the Maharaja in his personal capacity and not in representative capacity. It is a case of devolution of interest upon legatees upon assent to legacies, the Executor ceased to hold the office of Executor. The legatees under the will have vested interest in the property bequeathed under the will. This proposition will be supported by Khagendra Nath Mookerjee (supra) cited by the respondent.
The matter essentially rests on a decision as to the executability of the decree, in other words, whether in this jurisdiction, this court can arrive at a finding that the decree sought to be executed by the decree holder is a nullity.
Broadly speaking, Section 47 of the Code of Civil Procedure confers powers upon the executing court to determine all questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, if any; such objections as to the executability of the decree cannot be raised by a separate suit. The section does not indicate the grounds on which the executing court may declare the decree to be unenforceable or inexecutable. However, courts have proceeded on the basis that if at the stage of execution it is found that the trial court did not have competence or jurisdiction to pass the order and/or decree, the executing court may declare such decree to be a nullity. Additionally, a decree and/or order obtained by fraud would also be a matter on which a decree may be held to be a nullity or void.
In the instant case, we are concerned with execution of the decree.
The argument of the applicant proceeds on the basis that the learned Single Judge did not have jurisdiction over the subject matter of the dispute, and jurisdiction to grant the relief in the said proceeding. The argument encompasses two things namely, lack of authority to receive the proceeding and even if the court has authority to receive a proceeding, it did not have the jurisdiction to grant the relief.
The brief facts of the case as well as the argument of the parties have been indicated above. On the basis of the facts narrated above, it cannot be said that the court did not have the jurisdiction over the subject matter of the dispute. The subject matter of the dispute was not the enforcement of a consent decree. It was for execution of a conveyance in terms of the agreement stated in paragraphs '6' and '11' of the plaint. The argument that a suit shall not lie for enforcement of a consent decree and thereby goes to the root of the matter at this stage cannot be accepted. Firstly, all the parties to the present suit were not parties to the consent decree. The allegations are primarily directed against the nominee of Saraf and Poddar who according to the original plaintiff had acted in breach of underlying arrangements. The Terms of Settlement refers to two properties, namely Tiretta Bazar and Raja Katra property. In the said Terms, it is recorded that the Maharaja had received Rs. 4 lakhs as earnest money/part-payment/advance in respect of the Raja Katra property, and the final consideration price was Rs. 9.25 lakhs. In the plaint, it is stated that subsequent to the terms of settlement the entire sum of Rs. 4 lakhs received by Murlidhar Saraf which includes Rs. 2.50 lakhs paid by the original plaintiffs as earnest money and/or towards the price of the Tiretta Bazar property was wrongfully appropriated towards the price of the Raja Katra property without the knowledge or consent of the original plaintiffs. The plaintiffs contended that the sum of Rs. 2.50 lakhs should have been appropriated towards the price of the Tiretta bazaar property on or about 21st May, 1959. Murlidhar Saraf and Anandilal Poddar through M/s. S.C. Ray Chaudhuri and Company, Solicitors, informed the original plaintiffs about the consent decree dated 5th May, 1959, and that Murlidhar Saraf was not in a position to procure any money in respect of purchase price. He further called upon the original plaintiffs to pay the balance of the purchase money i.e. Rs. 3 lakhs by 31st May, 1959 in fulfillment of agreement dated 13th January, 1953 between the original plaintiffs on the one hand, and the defendant no.1 on the other, in respect of Tiretta Bazar property, as mentioned in paragraph 6 of the plaint to which reference has already been made earlier. The plaintiffs alleged that it was understood that a sum of Rs. 2.50 lakhs which had already been received by Murlidhar Saraf and Anandilal Poddar from the original plaintiffs would be paid and/or handed over to the Maharaja, being the defendant no.11, at the time of the execution of the conveyance. The original plaintiffs through their solicitors, Khaitan and Company, expressed their readiness and willingness to pay the balance of the purchase price Rs. 3 lakhs and to complete the transaction in fulfillment of their obligation under the agreement mentioned in paragraph 6 alluded to above. The solicitors of Saraf and Poddar, namely, M/s. S.C. Ray Chaudhuri and Company were informed that the conveyance in respect of said property should be executed in favour of the original plaintiffs in terms of the agreement between the parties, and at the request of Saraf and Poddar the original plaintiffs no. 2 and the deceased Jajodias nominated themselves and the plaintiffs no. 3 and 4 in whose favour conveyance was to be executed. By a letter dated 30th November, 1959, the original plaintiffs through Khaitan & Company, informed the defendant no.1 and Anandilal Poddar through M/s. R.C. Kar that they have kept ready a sum of Rs.3 lakhs in G.C. Notes of specified numbers and values, for payment of purchase price, and the said defendants were asked to intimate the original plaintiffs forthwith, the time and place of the execution of conveyance which has to be completed on 31st May, 1959, in order to enable the original plaintiff no. 2 and the deceased Jajodias to attend and make payment. Thereafter, as narrated above, a further agreement had taken place between the parties pursuant to which the original plaintiffs has paid costs of the stamps for the conveyance to M/s. S.C. Ray Chaudhuri & Company and the engrossed conveyance duly stamped was forwarded to M/s. Orr Dignam, acting on behalf of the Maharaja, for comparison and return. The said engrossed conveyance with the names of the original plaintiffs and the deceased Jajodias, as the purchaser, and Murlidhar Saraf, as the confirming party, was thereafter duly returned by M/s. Orr Dignam & Co., Solicitors, acting for and on behalf of the defendant Maharaja of Burdwan, to M/s. S.C. Ray Chaudhuri & Co., duly compared and approved. The plaintiffs alleged breach of the agreement mentioned in paragraph 6 of the plaint read with the agreement mentioned in paragraph 11. The Saraf and Poddar failed to procure the said conveyance from the Maharaja. By a notice in writing dated 6th June, 1959, Khaitan & Co. on behalf of the original plaintiffs again offered to pay the balance of Rs. 3 lakhs and called upon the original defendants to fix the time for payment of consideration money, and execution and registration of the conveyance.
In the plaint, the plaintiffs have asked for specific performance of the agreement pleaded in paragraphs 6 and 11 of the plaint. It is alleged in the plaint that in breach of the obligation cast in favour of the original plaintiffs, the Maharaja is threatening to execute and the original defendant no. 1 and 2 are trying to procure the execution of conveyance in respect of said Tiretta Bazar property in favour of a person or persons other than the original plaintiffs.
In this proceeding, Justice Ghosh was pleased to pass the decree on 23rd May, 2003 by which the Maharaja of Burdwan and/or his representatives were directed to execute the conveyance in respect of the Tiretta Bazar property. Admittedly, the present plaintiffs were not parties to the earlier suit inasmuch as they have pleaded separate and distinct agreements between the plaintiffs and the defendants. The plaintiffs in the present suit are seeking to enforce the said two agreements, which requires an adjudication of the rights and obligations of the parties in relation to such agreements in an appropriately instituted suit. Merely because the plaintiffs have referred to the consent decree to enforce their claim in the suit does not make the suit a suit for enforcement of the consent decree. It refers to matters both prior and subsequent to the consent decree: agreements entered into between the plaintiffs. And the Jajodias and Poddar, both prior and subsequent. Accordingly, the issues involved in the suit cannot be decided in execution proceedings. On such consideration, it cannot be said that the decree passed by Justice Ghosh is a nullity. It is not a matter of executability of the consent decree passed on 5th May, 1959 although in establishing their rights, the plaintiffs might have to refer to the said consent decree. The plaintiffs have specifically alleged the breach of two separate agreements as pleaded in paragraphs 6 and 11 of the plaint. The plaintiffs have claimed that by reason of discharge of their obligation in favour of the Sarafs and Poddars, it was incumbent upon the Sarafs, Poddars and also the Maharaja, under the consent decree, to execute the conveyance in favour of the plaintiffs. These two agreements are distinct and separate and could not have been decided in the execution proceeding. Moreover, on the strength of the said two agreements, the present decree holder could not have filed an application for execution of the consent decree.
On such consideration the objection raised by Mr. Mitra, that the judgment passed by the learned Single Judge is a nullity since the questions could not be decided in a suit but under Section 47 of the code of Civil Procedure, has no leg to stand.
Turning on the next limb of his argument that the trial court did not have jurisdiction over the subject matter of the dispute - this argument also cannot be accepted. The jurisdiction of the learned Single Judge is not challenged on the classical concept of "jurisdiction", namely territorial, pecuniary and subject matter. It cannot be contended that the court had no jurisdiction to try and determine the suit, as the subject matter of the dispute falls within the jurisdiction of the trial court court. The trial court, in the instant case, has jurisdiction in all respects namely, pecuniary, territorial and subject matter.
The enforceability of the decree as against the present applicants has been assailed on a ground which comes close to one of the limbs of "jurisdiction", namely, over the subject matter, not in the classical sense but on the ground of competence to grant relief as one of the tests in deciding whether the court has jurisdiction over the subject matter of the suit. Mr. Mitra submitted before this Court that since the consent decree cannot be varied without the consent of the parties, the court was not competent to pass an order which is in variance with the consent decree. The appellants, therefore, have proceeded on the basis that there has been substantive variation and modification of the consent decree which the trial court was not competent to direct. The judgment of the learned Single Judge would unmistakeably show that Saday, who changes his colour like a chameleon, had urged all points that were available to the legal representatives of Maharaja, namely the grandchildren, including the ground that the Maharaja is not bound by the agreement entered into between Jajodias on the one hand, and Saraf on the other. The argument of Saday was that the present suit was filed by Jajodias against Saraf for specific performance of the agreement dated 13th January, 1953. It was urged before the learned Single Judge that time was the essence of the contract and the performance has to be made within the time and not otherwise. Since the payment was not made in terms of Clause 8 of the Consent decree, the decree could not be said to be alive after 40 years. This contention was not accepted by the learned Single Judge.
It is not a case of inherent lack of jurisdiction as even by the own showing of Saday, plaintiffs were seeking the specific performance of their agreements. The interlocutory court did not accept the selfsame plea that is now sought to be raised, namely, that a consent decree cannot be varied without the consent of the Maharaja or his legal representatives. Mr. Mitra has urged that there is a requirement under Order 21, Rule 2 (3) and in absence of any certification by the court towards modification or adjustment, the decree would be held to be a nullity. This argument proceeds on the basis that the suit is for enforcement of the consent decree and the only remedy available to plaintiffs would be to apply under Order 21 of the Code of Civil Procedure, which deals with execution of decrees and orders. The very fact that it is urged at this stage that there has been a substantive variation of the consent decree in the order passed by Justice Ghosh in itself shows that the parties were enforcing a right which is not squarely covered by the consent decree. The rights of the plaintiff vis-à-vis the original defendants requires adjudication, and precisely for that reason the instant suit has been filed. The learned Single Judge has taken into account the fact that money was deposited in terms of the order dated 17th December, 1962 with the solicitors of the Maharaja of Burdwan and the plaintiffs are entitled to have a conveyance executed in accordance with the said deed in respect of the Tiretta Bazar Property, and the Maharaja and his legal heirs would be obliged to execute the conveyance. This decision of the learned Single Judge cannot be said to be a decision without jurisdiction. There is a distinction between a void order and an erroneous order. A void order would mean an order passed without jurisdiction, while an erroneous order passed within jurisdiction may be contrary to law. The court can decide a matter rightly or wrongly. The appellate courts are there to exercise their appellate or revisional jurisdiction over such orders. It is trite law that a court having no jurisdiction cannot grant a relief in respect of subject matter of the dispute as such a decision would be forum non judice. There are various statutes which have created bar of jurisdiction of civil courts in respect of matters covered by such statute, for example DRT Act, SARFAESI ACT and the Industrial Disputes Act to name a few. These statutes are considered to be self-contained statutes. If a civil court decides a matter which forms the subject matter of any of the disputes covered by the said statutes, any such order would be ex facie void and a nullity. However, if a court having jurisdiction over the subject matter grants a relief which may appear to a party to be a wrong decision, the said decision cannot be considered to be an order without jurisdiction. However, if a civil court in deciding a matter, grants relief which the court under the law or statute is not authorized to grant, it would certainly be a void decree.
In Sachindra Nath (supra), the Hon'ble Supreme Court held that before a court can be held to have jurisdiction to decide a particular matter, it must not only have jurisdiction to try the suit brought, but also have the authority to pass the orders sought for. Its jurisdiction must include the power to hear and decide the questions at issue. In Sachindra Nath, after referring to various provision including Section 34 of the Indian Trust Act, 1892, it was held that the relief prayed for by the settler did not relate to the management or administration of the trust property, but on the other hand it asked for authority to alter the quantum of interest given to each of the beneficiaries inter vivos. The jurisdiction of the court under Section 34 of the Indian Trusts Act is a limited jurisdiction. The case did not come within the scope of Section 34, and therefore it was held that Justice Ramfry did something which he was not competent to do under Section 34 of the Indian Trusts Act. However, it was observed that different questions might have arisen for consideration if an application under Rule 9 of Chapter 13 had been made requesting the High Court to interpret the original trust deed in a particular manner. Such a plea was not taken in the application filed by the settler before Justice Ramfry, further it was not the case of the appellant in the High Court, or the courts below or even the Supreme Court, that Justice Ramfry merely purported to interpret the trust deed, whether his interpretation is correct or not. In the instant case, the power of the court is not fettered, and is guided by the provisions of the Code of Civil Procedure. The court had the jurisdiction to grant the relief in the suit. The court had the jurisdiction to try the suit, and had the authority to pass orders of a particular kind. The fact that it has passed an order which should not have been made in the facts and circumstances of the litigation does not indicate total want or loss of jurisdiction, so as to render the order a nullity. Unlike Sachindra Nath (supra), the court in the instant case had the jurisdiction to try and decide the application and pass orders as the court might deem fit and proper.
In the instant case, the learned Single Judge felt that the consent of Maharaja was not required, which could be a right decision or wrong decision but cannot be, in this proceeding, considered as an order without jurisdiction. The courts have jurisdiction to decide right or to decide wrong and even though they decide wrong, the decrees rendered by them cannot be treated as nullity.
Section 47 presupposes the existence of a decree which is capable of execution. If a Court passing a decree has no inherent jurisdiction, the decree is a nullity. A decree passed by a Court without jurisdiction is no decree and, therefore, not executable. If the Court which passes the decree lacks inherent jurisdiction the decree would obviously be a nullity and can be challenged at the stage of execution. In such a case, an executing Court does not go behind the decree since there is no decree at all in the eye of law. Once the question for want of jurisdiction is raised and overruled, it cannot be raised again and would be treated inter-parties that the Court had inherent jurisdiction.
Halsbury's Laws of England, 4th Edition, (Re-issue), Vol.10 summarizes the concept of jurisdiction in Paragraph 314 at Page 132. The said Paragraph reads:-
"314. Meaning of 'jurisdiction'. By 'jurisdiction' is meant the authority which a court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. The limits of the authority are imposed by the statute, charter or commission under which the court is constituted, and may be extended or restricted by similar means.
If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the claims and matters of which the particular court has cognizance, or as to the area over which the jurisdiction extends, or it may partake of both these characteristics. If the jurisdiction of an inferior court or tribunal, including an arbitrator, depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but, except where the court or tribunal has been given power to determine conclusively whether the facts exist, the correctness of its decision may be inquired into by means of proceedings for judicial review. Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given."
(emphasis added) In American Jurisprudence, Volume 32A, paragraph 581, it is said that:
"Jurisdiction is the authority to decide a given case one way or the other. Without jurisdiction, a court cannot proceed at all in any case; jurisdiction is the power to declare law, and when it ceases to exist, the only function remaining to a court is that of announcing the fact and dismissing the cause."
In Indian Farmers Fertilizer Co-Operative Limited vs. Bhadra Products reported at (2018) 2 SCC 534, it is noted that:
"21. That "jurisdiction" is a coat of many colours, and that the said word displays a certain colour depending upon the context in which it is mentioned, is well-settled. In the classic sense, in Official Trustee v. Sachindra Nath Chatterjee, (1969) 3 SCR 92 at 99, "jurisdiction" is stated to be:
In the order of Reference to a Full Bench in the case of Sukhlal v. Tara Chand [(1905) ILR 33 Cal 68] it was stated that jurisdiction may be defined to be the power of a Court to hear and determine a cause, to adjudicate and exercise any judicial power in relation to it: in other words, by jurisdiction is meant the authority which a Court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. An examination of the cases in the books discloses numerous attempts to define the term 'jurisdiction', which has been stated to be 'the power to hear and determine issues of law and fact', the authority by which the judicial officer take cognizance of and 'decide causes'; 'the authority to hear and decide a legal controversy', 'the power to hear and determine the subject-matter in controversy between parties to a suit and to adjudicate or exercise any judicial power over them;' 'the power to hear, determine and pronounce judgment on the issues before the Court'; 'the power or authority which is conferred upon a Court by the Legislature to hear and determine causes between parties and to carry the judgments into effect'; 'the power to enquire into the facts, to apply the law, to pronounce the judgment and to carry it into execution'."
The power of the executing Court to invalidate a decree on the ground of nullity has been lucidly explained by the Hon'ble Supreme Court in Sunder Dass Vs. Ram Prakash reported at (1977) 2 SCC 662, Paragraph 3. The law, thus, stated:-
"3. Now, the law is well settled that an executing court cannot go behind the decree nor can it question its legality or correctness. But there is one exception to this general rule and that is that where the decree sought to be executed is a nullity for lack of inherent jurisdiction in the court passing it, its invalidity can be set up in an execution proceeding. Where there is lack of inherent jurisdiction, it goes to the root of the competence of the court to try the case and a decree which is a nullity is void and can be declared to be void by any court in which it is presented. Its nullity can be set up whenever and whenever it is sought to be enforced or relied upon and even at the stage of execution or even in collateral proceedings. The executing court can, therefore, entertain an objection that the decree is a nullity and can refuse to execute the decree. By doing so, the executing court would not incur the reproach that it is going behind the decree, because the decree being null and void, there would really be no decree at all. Vide Kiran Singh v. Chaman Paswan and Seth Hiralal Patni v. Sri Kali-Nath. It is, therefore, obvious that in the present case, it was competent to the executing court to examine whether the decree for eviction was a nullity on the ground that the civil court had no inherent jurisdiction to entertain the suit in which the decree for eviction was passed. If the decree for eviction was a nullity, the executing court could declare it to be such and decline to execute it against the respondent."
The exercise of powers under Section 47 of the Code of Civil Procedure also came up for consideration in Dhurandhar Prasad (supra). The Hon'ble Supreme Court after considering catena of decisions on this point both in India and England held that the exercise of powers under Section 47 of the Code is microscopic and lies in a very narrow inspection hole. Thus it is plain that executing Court can allow objection under Section 47 of the Code to the executability of the decree if it is found that the same is void ab initio and nullity, apart from the ground that decree is not capable of execution under law either because the same was passed in ignorance of such a provision of law or the law was promulgated making a decree inexecutable after its passing. The expressions "void" and "voidable" were considered in Paragraphs 16 to 21 of the said report and on consideration of the authorities on this point in Paragraph 22, law was, thus, summarized:-
"16. The expressions void and voidable have been subject matter of consideration before English Courts times without number. In the case of Durayappah v. Fernando and others [1967] 2 All England Law Reports 152, the dissolution of municipal council by the minister was challenged. Question had arisen before the Privy Council as to whether a third party could challenge such a decision. It was held that if the decision was complete nullity, it could be challenged by anyone, anywhere. The Court observed at page 158 E-F thus:-
"The answer must depend essentially on whether the order of the Minister was a complete nullity or whether it was an order voidable only at the election of the council. If the former, it must follow that the council is still in office and that, if any councillor, ratepayer or other person having a legitimate interest in the conduct of the council likes to take the point, they are entitled to ask the court to declare that the council is still the duly elected council with all the powers and duties conferred on it by the Municipal Ordinance."
17. In the case of In re McC. (A minor) [ 1985 ] 1 Appeal Cases 528, the House of Lords followed the dictum of Lord Coke in the Marshalsea Case quoting a passage from the said judgment which was rendered in 1613 where it was laid down that where the whole proceeding is coram non judice which means void ab initio, the action will lie without any regard to the precept or process. The Court laid down at page 536 thus:-
"Consider two extremes of a very wide spectrum. Jurisdiction meant one thing to Lord Coke in 1613 when he said in the Marshalsea Case (1613) 10 Co. Rep.68b, at p.76a:
'... when a court has jurisdiction of the cause, and, proceeds inverso ordine or erroneously, there the party who sues, or the officer or minister of the court who executes the precept or process of the court, no action lies against them. But when the court has not jurisdiction of the cause, there the whole proceeding is coram non judice, and actions will lie against them without any regard of the precept or process...' (emphasis added) The Court of the Marshalsea in that case acted without jurisdiction because, its jurisdiction being limited to members of the Kings household, it entertained a suit between two citizens neither of whom was a member of the Kings household. Arising out of those proceedings a party arrested by process of the Marshalsea could maintain an action for false imprisonment against, inter alios, the Marshal who directed the execution of the process. This is but an early and perhaps the most quoted example of the application of a principle illustrated by many later cases where the question whether a court or other tribunal of limited jurisdiction has acted without jurisdiction (coram non judice) can be determined by considering whether at the outset of the proceedings that court had jurisdiction to entertain the proceedings at all. So much is implicit in the Lord Cokes phrase 'jurisdiction of the cause'."
18. In another decision, in the case of Director of Public Prosecutions v. Head [1959] Appeal Cases 83, House of Lords was considering validity of an order passed by Secretary of the State in appeal preferred against judgment of acquittal passed in a criminal case. The Court of Criminal Appeal quashed the conviction on the ground that the aforesaid order of Secretary was null and void and while upholding the decision of the Court of Criminal Appeal, the House of Lords observed at page 111 thus:-
"This contention seems to me to raise the whole question of void or voidable: for if the original order was void, it would in law be a nullity. There would be no need for an order to quash it. It would be automatically null and void without more ado. The continuation orders would be nullities too, because you cannot continue a nullity. The licence to Miss Henderson would be a nullity. So would all the dealings with her property under Section 64 of the Act of 1913. None of the orders would be admissible in evidence. The Secretary of State would, I fancy, be liable in damages for all of the 10 years during which she was unlawfully detained, since it could all be said to flow from his negligent act; see section 16 of the Mental Treatment Act, 1930.
But if the original order was only voidable, then it would not be automatically void. Something would have to be done to avoid it. There would have to be an application to the High Court for certiorari to quash it."
19. This question was examined by Court of Appeal in the case of R. v. Paddington Valuation Officer and another, Exparte Peachey Property Corporation, Ltd. [1965] 2 All England Law Reports 836 where the valuation list was challenged on the ground that the same was void altogether. On these facts, Lord Denning, M.R. laid down the law observing at page 841 thus:-
"It is necessary to distinguish between two kinds of invalidity. The one kind is where the invalidity is so grave that the list is a nullity altogether. In which case there is no need for an order to quash it. It is automatically null and void without more ado. The other kind is when the invalidity does not make the list void altogether, but only voidable. In that case it stands unless and until it is set aside. In the present case the valuation list is not, and never has been, a nullity. At most the first respondent- acting within his jurisdiction-exercised that jurisdiction erroneously. That makes the list voidable and not void. It remains good until it is set aside." (emphasis added)
20. De Smith, Woolf and Jowell in their treatise Judicial Review of Administrative Action, Fifth Edition, paragraph 5-044, has summarised the concept of void and voidable as follows:
"Behind the simple dichotomy of void and voidable acts (invalid and valid until declared to be invalid) lurk terminological and conceptual problems of excruciating complexity. The problems arose from the premise that if an act, order or decision is ultra vires in the sense of outside jurisdiction, it was said to be invalid, or null and void. If it is intra vires it was, of course, valid. If it is flawed by an error perpetrated within the area of authority or jurisdiction, it was usually said to be voidable; that is, valid till set aside on appeal or in the past quashed by certiorari for error of law on the face of the record." (emphasis added)
21. Clive Lewis in his works Judicial Remedies in Public Law at page 131 has explained the expressions void and voidable as follows:-
"A challenge to the validity of an act may be by direct action or by way of collateral or indirect challenge. A direct action is one where the principal purpose of the action is to establish the invalidity. This will usually be by way of an application for judicial review or by use of any statutory mechanism for appeal or review. Collateral challenges arise when the invalidity is raised in the course of some other proceedings, the purpose of which is not to establish invalidity but where questions of validity become relevant."
22. Thus the expressions void and voidable have been subject matter of consideration on innumerable occasions by courts. The expression void has several facets. One type of void acts, transactions, decrees are those which are wholly without jurisdiction, ab initio void and for avoiding the same no declaration is necessary, law does not take any notice of the same and it can be disregarded in collateral proceeding or otherwise. The other type of void act, e.g., may be transaction against a minor without being represented by a next friend. Such a transaction is good transaction against the whole world. So far the minor is concerned, if he decides to avoid the same and succeeds in avoiding it by taking recourse to appropriate proceeding the transaction becomes void from the very beginning. Another type of void act may be which is not a nullity but for avoiding the same a declaration has to be made. Voidable act is that which is a good act unless avoided, e.g., if a suit is filed for a declaration that a document is fraudulent and/or forged and fabricated, it is voidable as apparent state of affairs is real state of affairs and a party who alleges otherwise is obliged to prove it. If it is proved that the document is forged and fabricated and a declaration to that effect is given a transaction becomes void from the very beginning. There may be a voidable transaction which is required to be set aside and the same is avoided from the day it is so set aside and not any day prior to it. In cases, where legal effect of a document cannot be taken away without setting aside the same, it cannot be treated to be void but would be obviously voidable." (emphasis added) The expressions "void" decree and "illegal, incorrect or irregular"
decree came up for consideration in Balvant N. Viswamitra & Ors. Vs. Yadav Sadashiv Mule & Ors. reported at (2004) 8 SCC 706. The Hon'ble Supreme Court after considering the earlier decisions, summarized the law in Paragraphs 9, 14 and 15, which read:-
"9. The main question which arises for our consideration is whether the decree passed by the trial court can be said to be 'null and 'void'. In our opinion, the law on the point is well settled. The distinction between a decree which is void and a decree which is wrong, incorrect, irregular or not in accordance with law cannot be overlooked or ignored. Where a court lacks inherent jurisdiction in passing a decree or making an order, a decree or order passed by such court would be without jurisdiction non est and void ab initio. A defect of jurisdiction of the court goes to the root of the matter and strikes at the very authority of the court to pass a decree or make an order. Such defect has always been treated as basic and fundamental and a decree or order passed by a court or an authority having no jurisdiction is nullity. Validity of such decree or order can be challenged at any stage, even in execution or collateral proceedings. (emphasis added)
14. Suffice it to say that recently a bench of two-Judges of this Court has considered the distinction between null and void decree and illegal decree in Rafique Bibi v. Sayed Waliuddin, [2004] l SCC 287. One of us (R.C. Lahoti, J. as his Lordship then was), quoting with approval the law laid down in Vasudev Dhanjibhai Modi, stated:
"6. What is 'void' has to be clearly understood. A decree can be said to be without jurisdiction, and hence a nullity, if the court passing the decree has usurped a jurisdiction which it did not have; a mere wrong exercise of jurisdiction does not result in a nullity. The lack of jurisdiction in the court passing the decree must be patent on its face in order to enable the executing court to take cognizance of such a nullity based on want of jurisdiction, else the normal rule that an executing court cannot go behind the decree must prevail. (emphasis added)
7. Two things must be clearly borne in mind. Firstly, 'the court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be a 'a nullity' and 'void' but these terms have not absolute sense: their meaning is relative, depending upon the court's willingness to grant relief in any particular situation. If this principle of illegal relativity is borne in mind, the law can be made to operate justly and reasonably in cases where the doctrine of ultra vires, rigidly applied, would produce unacceptable results.' (Administrative Law, Wade and Forsyth, 8th Edn., 2000, p. 308). Secondly, there is a distinction between mere administrative orders and the decrees of courts, especially a superior court. 'The order of a superior court such as the High Court must always be obeyed no matter what flaws it may be thought to contain. Thus, a party who disobeys a High Court injunction in punishable for contempt of court even though it was granted in proceedings deemed to have been irrevocably abandoned owing to the expiry of a time-limit.' (ibid., p. 312)
8. A distinction exists between a decree passed by a court having no jurisdiction and consequently being a nullity and not executable and a decree of the court which is merely illegal or not passed in accordance with the procedure laid down by law. A decree suffering from illegality or irregularity of procedure, cannot be termed inexecutable by the executing court; the remedy of a person aggrieved by such a decree is to have it set aside in a duly constituted legal proceedings or by a superior court failing which he must obey the common of the decree. A decree passed by a court of competent jurisdiction cannot be denuded of its efficacy by any collateral attack or in incidental proceedings." (emphasis supplied)
15. From the above decisions, it is amply clear that all irregular or wrong decrees or orders are not necessarily null and void. An erroneous or illegal decision, which is not void, cannot be objected in execution or collateral proceedings."
It remains undisputed that the applicants no 7, 9, and 11 have received the notices but did not appear before learned Single Judge. Jai Chand happens to be the son of Saday, and he has admitted that he received the order dated 23rd November, 2003 and the memorandum of appeal, at the same address to which the notice was sent to him by Mr. Subhrangshu Ganguly on 18th September, 2002. Both the trial court and the Division Bench have held that the Maharaja and his legal representatives and heirs were obliged to execute the conveyance in favour of the plaintiffs. Both the orders have taken note of the fact that the Jajodias had put in the funds with the solicitor of the Maharaja. In this jurisdiction, the court cannot decide as to whether the order of the learned Single Judge or Appellate Court in directing execution of the conveyance in favour of the plaintiffs is in breach of the consent decree. Moreover, as stated above, the suit is not enforcement of the consent decree. Pithily put, the suit by Jajodia against the defendants was in view of breach of agreement of 1953 which was entered into between Jajodias and the defendants, except the Maharaja. Jajodia contended that although he was ready and willing to put in the entire consideration amount and had in fact put in the sum of Rs.2.5 lakhs to defendants, the said defendants appropriated the sale amount for some other property. Jajodia, in the suit, has further contended that he was ready and willing to deposit balance Rs.3 lakhs and has put in Rs. 21,450/- towards stamp duty with the solicitor of the original defendants, SC Roy Choudhari. Under Section 47, the questions that can be decided should relate to the parties to the suit in which the decree was passed, or their representatives. Jajodia was not party to the 1953 suit. The situation could have been different if Jajodia was the assignee of the consent decree and the Maharaja was refusing to execute the deed of conveyance in his favour. On such considerations, the argument of Mr. Mitra that the suit is barred under Section 47 of the CPC cannot be accepted.
There cannot be any quarrel with the proposition that a decree based on compromise is executable. Where the machinery provided for working out a consent decree fails it is a duty of the Court to fill up the gap caused by such failure by making necessary orders in order that the consent decree may be worked out as agreed between the parties. It is only to that extent an executing Court can step in and pass appropriate orders for working out of the consent decree.
To the extent to which any controversy calls for an adjudication, the same can be taken care of by the executing Court which can still compel fulfilment of obligations respectively to the extent to which either party is obliged to do but has failed in discharging the same, like, issuing necessary process, appoint Commissioner or direct detention in civil imprisonment of the party found in breach and thus execute the decree. The consent decree retains its character as a contract because it is founded on agreement between the parties and is, therefore, subject to the incidence of a contract. The executability depends upon the intention of the parties as expressed in agreement than on anything else.
However, in the instant case, the consent decree is not between the plaintiff and the defendants. The disputes raised require adjudication and this cannot be done in the execution proceeding. Moreover, the trial court as well as the appellate court decided that the grandchildren of the Maharaja are obliged to convey the property to the plaintiffs in terms of the agreements as pleaded in paragraphs 6 and 11 of the plaint.
On the question of lack of notice and lack of knowledge of the suit, this argument advanced by the applicants is also not accepted. The deed of assent and the deed of transfer disclosed by the applicants would clearly show that M/s RC Kar & Company was acting on behalf of the executors as well as the legatees. As observed earlier, each of the deeds clearly state that pending litigation "touching or concerning the said property shall be defended or proceeded with by the beneficiary at his own cost, charges and expenses". The beneficiaries were the residuary legatees. Although the recital shows that Saday had disputed the title of the Maharaja in respect of the suit property, he did not raise such objection before the Single Judge. Instead, in essence, he has defended the grandchildren of the Maharaja, presumably as his son Jaichand also happens to be a beneficiary under the will. If Saday had no interest in the matter then there was no requirement for his advocate, Mr. Kar, to argue all the points including that the Maharaja was not obliged to execute the conveyance in favour of the plaintiff inasmuch as the agreement between the original plaintiff and the original defendant do not bind the Maharaja.
Order 22 Rule 2, 3 and 4 relate to devolution of interest on the death of a plaintiff or a defendant. These rules, however, do not apply when a suit is brought by or against a person in his representative character, for example by or against the head of a Math or the manager of a temple. In such cases, Rule 10 applies so that if the head of a Math or the Manager of the temple dies, his successor may be substituted in his place.
The executors and administrators named in the will of the late Maharaja were the legal representatives within section 2(11) of the Code of Civil Procedure. The said executors were substituted soon after the death of the Maharaja. At the time of the passing of the decree, they continued to remain on record. Saday contended that since the executors and/or administrators have assented to the legacy, the ten grandchildren of the Maharaja have now become the owner of the property. Saday did not disclose the deeds of assent to legacy and the deeds of transfer. The said two documents have surfaced for the first time in this proceeding by the applicants. The executors have also not come forward seeking their discharge on the aforesaid grounds. That the grandchildren were aware of the pending litigation and it would be their obligation to pursue the pending proceedings concerning the suit property is evident from the documents disclosed by the applicants. It was their obligation to apply in the pending proceeding. If they have not applied to be impleaded, they may suffer by default on account of any order passed in the proceeding. In the instant case, admittedly, they did not make any application. They need not have to wait till 2002 to be impleaded in the said proceeding. Even after notice, they selectively appeared and now that the decree has attained finality, some of the legatees have now come up with the same plea that were urged by Saday and thereafter by both Saday and Jai Chand both up to the Supreme Court, unsuccessfully. The plea that they were not party to the earlier proceedings and hence the said two orders are not executable against them cannot be urged in this proceeding as they had due knowledge of the earlier proceedings and in any event they were required to apply in the pending proceeding after the deed of assent and deed of transfer were executed in their favour in 1998. The obligation to defend the said proceeding by them is clearly and specifically indicated in the deed of assent and the deed of transfer. Moreover, the deed of transfer is only to perfect the title of the legatees as the legatees otherwise remained as the legal representative of the testator by virtue of section 336 of the Indian Succession Act. The question of abatement of the suit, accordingly, does not arise. If a person having knowledge of a proceeding deliberately and intentionally avoids such proceeding knowing fully well that any order passed in the said proceeding might adversely affect his interest cannot come up subsequently after the order is passed to contend that the said order is not binding upon him. This observation is made in the context of the facts that has emerged from the pleadings. Neither the court nor the plaintiffs have any means to ascertain that the administration of the estate is complete as no document was furnished either by Saday or by his solicitor to that effect. However, nothing much would have turned on it in view of the specific obligation cast upon each of the grandchildren to defend the pending suits. The applicant grandchildren, by not defending the suits in spite of notice, give a clear impression that they did not have any objection to the execution of the conveyance. In fact, they have accepted the order by implication and conduct.
It is significant to mention that Jai Chand in the Special Leave Petition has raised issues that are now sought to be canvassed by the other legatees. In fact, those issues have been raised unsuccessfully by Saday both before the learned Single Judge and the Division Bench. In the SLP, Jai Chand has challenged both the orders, inter alia, on the following grounds:
"i. For that the impugned judgment is against the settled principles of law as well as contrary to the facts and circumstances of the present case. ii. For that the Hon'ble High Court failed to appreciate that neither the Maharaja of Burdwan nor his legal heirs were party to the agreement dated 13.01.1953 iii. For that the Hon'ble High Court failed to appreciate that the parties which could have been bound by the order dated 05.05.1959 not having been made party to the suit, the application was itself not maintainable and hence, no orders could have been passed on the same. iv. For that the Hon'ble High Court failed to appreciate that by virtue of the order dated 05.05.1959, the registration of the conveyance and the payments with regard to the sale of the suit property were to be made and completed by 31.05.1959, neither of which was done. Further, it is submitted that if any nomination with regard to the suit property was to be done, the same ought to have been done by the said date. v. For that the Hon'ble High Court failed to appreciate that in view of the above submission, the Respondents have no right to apply for an execution of the conveyance on the basis of any nomination done subsequent to 31.05.1959, especially since there was no order of injunction prior to 27.07.1959.
xvi. For that the Hon'ble High Court failed to appreciate that the order of the Ld Single Judge imposes upon the petitioner an obligation which the petitioner was neither a party to nor could the Petitioner have fulfilled the said obligation since by virtue of the will of the Maharaja of Burdwan, the rights of the suit property did not vest with the Petitioner. xxii. For that the Hon'ble High Court erred in not transposing the names of the legal representatives as appellants more specifically when the application for transposition was filed for the said purpose, while dismissing the appeal, despite observing that the appeal can be taken up on merits only in the event the transposition of added respondents is permissible in accordance with law.
xxv. For that the Hon'ble High Court erred in not allowing the application for transposition (GA No. 292/2004) filed by the Petitioner."
The SLP was dismissed. The order of the learned Single Judge and the Division Bench is binding on the parties to the proceeding. Since the grandchildren, in spite of notice did not appear, the judgement of the appellate court is binding upon them. The grandchildren, at their own whims, cannot approach the court. The notices and the service of the order dated 23rd November, 2003, were sufficient to forewarn the ten grandchildren. They knew that the die is cast, bolt impending. They deliberately avoided the said proceeding. From the surrounding facts, it cannot be said the respondents were unaware of the pending proceeding. It cannot be said at this stage that the trial court did not have the power to hear and decide the questions forming the subject matter of the dispute, inasmuch as it had the authority to hear and decide the controversies between the parties. It is not the concern of the court, at this stage, to find out whether the said decision is erroneous. The judgements are certainly not without jurisdiction.
On such considerations, this application fails. However, there shall be no order to costs.
Urgent Photostat certified copy of this judgement, if applied for, be given to the parties on an usual undertaking.
(Soumen Sen, J.)