Calcutta High Court (Appellete Side)
Smt Sumana Venkatesh Nee Sur vs Sri Susanta Kumar Sur And Others on 19 April, 2017
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
IN THE HIGH COURT AT CALCUTTA CIVIL REVISIONAL JURISDICTION CO No.875 of 2017 SMT SUMANA VENKATESH NEE SUR
-VERSUS-
SRI SUSANTA KUMAR SUR AND OTHERS
For the Petitioner: Mr Dhruba Ghosh, Sr Adv.,
Mr Arindam Mukherjee, Adv.,
Ms Arunima Lala, Adv.,
Mr Soumen Ghosh, Adv.
For the Opposite Party No.1: Mr Sabyasachi Bhattacharya, Sr Adv.,
Mr Rizu Ghoshal, Adv.,
Mr Supratim Laha, Adv.,
Ms Taniya Mitra, Adv.
Hearing concluded on: April 13, 2017.
Date: April 19, 2017.
SANJIB BANERJEE, J. : -
The petitioner herein is the sole defendant in a suit relating to an immovable property. The petitioner questions of a propriety of an order dated February 10, 2017 by which the petitioner's application for rejection of the plaint has been dismissed with costs.
2. The principal ground urged by the petitioner is that the plaint relating to the suit does not disclose any cause of action.
3. The petitioner is the daughter of one Purnanka Mohan Sur and his second wife, Renu Sur, both deceased. The petitioner is married and has a daughter, who also appears to be married. The opposite party No.1 herein is a son of the petitioner's father through his first marriage. The opposite party No.1 has instituted Title Suit No.192 of 2014 before the Civil Judge (Junior Division), 2nd Court at Alipore, citing a deed of settlement to claim divers reliefs which are not necessary to be set out. The claim in the suit is that the opposite party No.1 herein has, under a registered deed of settlement of December 14, 1960 executed by Purnanka Mohan Sur, a valuable right in respect of a property now numbered as 46A, Garcha Road. The immediate purpose for which the suit was filed was to arrest the attempt by the petitioner herein to transfer or alienate the suit property. The opposite party Nos. 2 and 3 were impleaded as proforma defendants in the suit. Such opposite parties are the wife and son, respectively, of a deceased uterine brother of the opposite party No.1.
4. The petitioner asserts that the alleged right claimed by the opposite party No.1 in the suit is non-existent and the same would be evident from a plain reading of the relevant deed of settlement. The petitioner maintains that under the relevant deed the suit property has absolutely vested in the petitioner and the circumstances in which the suit property could have passed on to the opposite party No.1 and his deceased brother are no longer possible. The petitioner submits that it was on the basis of a plain reading of the relevant deed that the petitioner applied under Order VII Rule 11 of the Code of Civil Procedure, 1908 for the rejection of the plaint. The petitioner criticises the order impugned dated February 10, 2017 on the ground that the court below imagined a semblance of a cause of action where there was none.
5. It is necessary to notice the deed of settlement of December 14, 1960 and the relevant portion thereof which governs the rights of the parties herein. Under the said document, Purnanka Mohan Sur, as the settlor, created a trust of which he appointed himself the first trustee. The subject-matter of the trust was the property at 46, Garcha Road with a strip of land that the settlor purchased and amalgamated with premises No. 46, Garcha Road. There is no dispute that the original property and the strip of land subsequently acquired were later renumbered and the entirety of the property covered by the trust is now premises No. 46A, Garcha Road. The material part of the document reads as follows:
" ... AND from and after the death of the Settlor and his said wife Srimati Renu Sur IN TRUST for Srimati Sumana Sur the only daughter now living of the Settlor and his said wife Srimati Renu Sur absolutely and the Trustee shall transfer the Trust Premises to her PROVIDED THAT if any other child or children is or are born to the Settlor through his said wife Srimati Renu Sur and such child or children shall be living on that date then IN TURST for all such children including the said Srimati Sumana Sur absolutely in equal shares as tenants in common and the Trustee shall transfer the Trust Premises to them PROVIDED that if the said Srimati Sumana Sur remaining the only child of the Settlor and his said wife Srimati Renu Sur shall die during the life time of the Settlor or his said wife Srimati Renu Sur then the Trustee shall stand possessed of the Trust Premises in trust for the Settlor's two sons Prosanta Kumar Sur and Susanta Kumar Sur through his first wife Srimati Radharani Sur absolutely in equal shares as tenants in common PROVIDED FURTHER that if the said Srimati Sumana Sur remaining the only child of the Settlor and his said wife Srimati Renu Sur shall survive the Settlor and his said wife but shall die unmarried or if married shall die without any issue then and in that case as well the Trustee shall hold the Trust Premises in trust for the said Prosanta Kumar Sur and Susanta Kumar Sur absolutely in equal shares as tenants in common AND if on the date of the death of the survivor of the Settlor and his said wife Srimati Renu Sur the said Sumana Sur and/or other child or children if any born to the Settlor through his said wife Sm. Renu Sur shall be minor then until the said Srimati Sumana Sur or if there shall be other child or children of the Settlor through his said wife Srimati Renu Sur then until all of them attain majority the Trustee shall act as the guardian of the said minor or minors and shall carry out the trusts herein contained and shall spend the residue of the rents issues and profits of the Trust Premises (after payment of the rates taxes and other outgoings and the expenses of the repair and up-keep of the Trust Premises) towards the maintenance and education of the said Srimati Sumana Sur or other child or children if any of the Settlor through his said wife Sm. Renu Sur as aforesaid and upon the Srimati Sumana Sur attaining majority or if there shall be any other child or children of the Settlor through his said wife Srimati Renu Sur as aforesaid then upon all of them attaining majority the Trustee shall transfer the Trust Premises unto the said Srimati Sumana Sur or to such other child or children, including the said Srimati Sumana Sur as hereinbefore directed PROVIDED ALWAYS AND IT IS HEREBY AGREED AND DECLARED that if the Trust Premises or any part thereof shall be acquired by the Government, Calcutta Municipality or any other public body or Authority under any law for the time being in force then the Trustee shall be quite competent and entitled to receive the compensation money and give full discharge for the same and the same when received shall be invested by the Trustee for the purchase of other suitable immovable property in Calcutta or in its suburbs and until such purchase of immovable property keep the same invested the property so purchased or the compensation money so received until such purchase or the investments thereof shall be subject to the trusts herein contained so far as the same shall be applicable ..."
6. According to the petitioner, it is the admitted position that no other child was born to the settlor through his second wife Renu Sur and the petitioner herein remained the only child of the settlor and the second wife. The opposite party No.1 has admitted such position and has also accepted that the petitioner is married and she has a daughter through such marriage. The petitioner further contends that there are only two situations in which the opposite party No.1 and his now deceased uterine brother, Prosanta, could have been entitled to the property: first, if the petitioner herein, as the only child of the settlor and his second wife, died during the lifetime of the settlor or his second wife; or, secondly, if the petitioner herein, as the only child of the settlor and his second wife, survived the settlor and the second wife but died unmarried, or, if married, died without any issue, provided that the transfer had already not taken place upon the petitioner herein attaining majority.
7. There is no dispute as to the first situation recognised by the petitioner. The opposite party No.1, however, contends that the deed of settlement does not admit of the construction of the second condition described by the petitioner herein. It is the case of the opposite party No.1 that he and his deceased uterine brother (or his estate) would have been or would be absolutely entitled to the trust property if the petitioner's daughter were to die before the petitioner and the petitioner did not have any issue alive at the time of the petitioner's death.
8. The opposite party No.1 says that as long as a plaint discloses a possible cause of action and it cannot be said, on a plain reading thereof, that no cause of action appears therefrom, the plaint cannot be rejected. It is further submitted on behalf of the opposite party No.1 that no inquiry ought to be undertaken to ascertain whether the cause of action pleaded is justified; at least, on an application for rejection of the plaint. Such inquiry, the opposite party No.1 exhorts, is to be undertaken in course of the protracted trial upon the plaintiff being afforded a chance to lead evidence and establish the claim. In short, the contention of the opposite party No.1 is that as long as the plaintiff reveals in the plaint that the plaintiff has a cause of action to sue, the matter should rest there and an application to reject the plaint is liable to be dismissed.
9. The petitioner asserts that Order VII Rule 11 of the Code, as the celebrated judgment reported at (1977) 4 SCC 467 (T. Arivandandam v. T. V. Satyapal) instructs, calls for a meaningful reading of the plaint and not by mechanically accepting the statements in the plaint to be correct even though the material relied upon in support of the cause of action may render the claim baseless. The petitioner places the deed of settlement on which the plaint is based and the claim is founded. The petitioner suggests that if it is a document on which a claim is fashioned and such document is appended to the plaint, it is not only permissible but also the duty of the court to read the document and ascertain whether the claim can be sustained on the basis thereof.
10. The principles that were once regarded as sacrosanct in dealing with applications for rejection of a plaint have been diluted in recent times. A perfectly valid suit instituted with a plaint disclosing a cause of action may now be subsequently seen as barred by law or impermissible to be pursued in a civil court by virtue of divers recent statutes that promote tribunalisation upon emasculating the civil court system. For instance, Section 34 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, on its proper construction, may prohibit a particular claim in a previously instituted suit from being pursued. Thus, the once acclaimed inviolable concept of a plaint being inseverable for its rejection, is no longer axiomatic in Indian jurisprudence. But one does not have to go that far in this case; for, if it appears from a plaint, including the documents appended thereto, that the illusion of a cause of action that is made out in the plaint is belied therefrom, the court may nip the useless action in the bud.
11. The deed of settlement of December 14, 1960 is copiously quoted in the plaint and it is evident that the right that the opposite party No.1 as plaintiff seeks to assert is founded on such document. If the document on which a cause of action is founded reveals that no cause exists, it is duty of the court to reject the plaint under sub-rule (a) of Rule 11 of Order VII of the Code. In doing so, the court must notice the best arguable case of the plaintiff and if the best arguable case of the plaintiff is not supported by the document on which the claim is founded, the plaint is liable to be rejected.
12. The limited inquiry that a court may make upon receiving a challenge to a plaint on the ground that it does not disclose any cause of action is to ascertain from the documents appended to or relied upon in the plaint. If such inquiry requires an interpretation of the document, such interpretation must follow and only if the cause of action pleaded passes muster upon such interpretation, will the plaint survive the challenge.
13. In the present case, as evident from the material part of the deed of settlement of December 14, 1960 quoted above, several situations have been cited for the property covered by such document to vest in one or more of the possible beneficiaries indicated therein. The paramount object of the deed is to vest the property which is the subject-matter thereof in the progeny of the settlor. As to who among those bearing the blood of the settlor would be ultimately entitled to the property is detailed therein. There is no doubt that the property was intended to vest in the petitioner herein, but only upon certain conditions being fulfilled; in the absence of such conditions being met, the property was to vest in the children through the first marriage of the settlor.
14. At the time that the relevant deed was executed, the petitioner herein was a child and, though the Hindu Succession Act and the Hindu Marriage Act had already come into effect, conservative Hindu practices had not gone out of vogue. The petitioner herein was then the only child of the settlor through his second marriage, but the document provided that if the settlor were to have any other children with his second wife, the usufructs from the property would accrue to all issues from his second marriage. If, however, the petitioner herein remained the only child of the settlor through his second marriage, and predeceased either parent, the trust property would be for the benefit of the opposite party No.1 and his uterine brother, who were the two issues of the settlor from his first marriage. Since the petitioner herein has outlived her parents, such circumstance is no longer possible. The second situation in which the trust property could have gone to the children of the settlor through his first wife was if the petitioner herein outlived her parents but died unmarried or, if married, died without any issue. The petitioner has outlived her parents. She is married. She has a daughter. It would appear that the second situation envisaged in the deed, upon the happening of which the trust property would vest in the children through the first marriage of the settlor, can no longer arise, but it is here that the opposite party No.1 joins issue.
15. The first limb of the argument on behalf of the opposite No. 1 is on a point of principle: that if an involved question as to interpretation is raised, it should be left to the trial and not taken up on an application for rejection of the plaint on the ground it does not disclose any cause of action. The other limb of the submission is factual: that it is still possible that the petitioner's daughter may predecease her, whereupon the trust property would vest in the opposite party No.1 and the heirs of his uterine brother.
16. It is true that there is a view that an involved question should not engage a court at a stage prior to the trial, or, at least, on an application for rejection of the plaint on the ground that it does not disclose any cause of action. The original view was that only if the meanest mind could not discern a cause of action from a plaint, would the plaint be liable for rejection on a defendant's preliminary challenge. But it must be remembered that these views were of a day and age when a suit would be disposed of in months and not languish for decades without end as they do now. Crafty drafting and convoluted pleadings sometimes create the illusion of a cause of action where none exists and the modern approach is to read the plaint meaningfully to discover if there really is any cause of action apparent therefrom. Subsequent events are now also taken into account at the preliminary stage to ascertain whether the suit has become infructuous or the cause of action as pleaded overtaken by a subsequent event. The approach of a court has to be more meaningful than pedantic, more discerning than pedagogic.
17. If a document has to be looked into to ascertain therefrom whether the cause of action as pleaded in the plaint is justified, and no other material is necessary for such exercise, the court can - or rather, should - complete the exercise in one go rather than postpone the consideration to a trial and invite the attendant time-consuming processes to intervene. But the approach must be cautious and the exercise limited only to such cases where the cause of action is founded on a document and it depends on no other material or further evidence.
18. Now to the facts and the interpretation of the contentious part of the document. It is evident from the deed that the trust was to come to an end upon the petitioner herein or, if the settlor had any other children through his second marriage, all such children attaining majority and the trust property being transferred to the petitioner or to all the children of the settlor through his second marriage. Since the petitioner was the only issue of the settlor through his second marriage, the trust ought to have come to an end upon the petitioner attaining majority and the trust property being transferred to her. Even though it is not evident from the plaint as to whether such transfer was effected and no factual input can be borrowed from elsewhere while assessing if the plaint discloses any cause of action, the mandate of the settlor was unequivocal on such aspect and even if the transfer has not been effected it must be deemed to have been effected. Upon the transfer being complete, or deemed to have been effected, the property would vest in the petitioner and it would be for the petitioner to deal with the same in accordance with law or for the usual laws of succession to operate thereon. The rights that the children of the settlor through his first marriage had would stand extinguished upon the transfer been completed or deemed to have been effected.
19. The previous clause in the deed, to the effect that the settlor's children through his first marriage would be entitled to the trust property upon the petitioner dying unmarried or the petitioner marrying but dying without an issue, would cease to operate upon the transfer of the trust property being completed or deemed to have been effected in accordance with the command of the settlor as contained in the deed. The condition would not outlive the transfer, irrespective of whether the petitioner was married at the time that she attained majority or had any issue at such time. Such condition was limited to the period prior to the petitioner attaining majority and the transfer of the trust property in her favour must now have been completed or deemed to have taken effect in accordance with the mandate of the settlor.
20. It is a cardinal principle in the construction of a deed that if an earlier clause is followed by a later clause which destroys altogether the obligation created by the earlier clause, the later clause is to be rejected as repugnant and the earlier clause would prevail. But the corollary to the principle is as important as the principle itself: that if the later clause does not destroy but only qualifies the earlier, then the two are to be read together and effect is to be given to the intention of the parties as disclosed by the deed as a whole [see Forbes v. Git {(1922) 1 AC 256}]. At any rate, if the deed of settlement of December 14, 1960 is regarded as a testamentary document, as it should be, it would be the later clause that would prevail over an earlier clause of varying import.
21. Even if the relevant condition in the deed that the opposite party No.1 emphasises on is taken at its face value and is regarded as unqualified by the later clause that provides for the vesting of the trust property in the petitioner upon the petitioner attaining majority, upon it being evident that the petitioner is married and has a child, it can no longer be said that the petitioner would die without any issue. To interpret the relevant clause to imply that if the petitioner dies after her child has predeceased her would amount to adding words to the clause which would be impermissible. In any event, if the petitioner dies after the death of her daughter the rules of succession may find the property in the lap of the opposite party No.1; but that would be under the laws of succession applying to a Hindu female and not by virtue of the deed of settlement. Again, a prospective heir cannot interfere with a person's right to deal with her property.
22. Since the suit was instituted in the year 2014 when the petitioner had already attained majority and the trust property ought to have vested in her in accordance with the mandate of the settlor contained in the deed of settlement, there was no cause for the opposite party No.1 to espouse in respect of such property. On the most generous reading of the deed of settlement on which the plaint lodged by the opposite party No.1 is founded, there does not appear to be the slightest sliver of support for the cause of action pleaded in the plaint.
23. Accordingly, CO 875 of 2017 is allowed by setting aside the order impugned dated February 10, 2017 and by rejecting the plaint pertaining to Title Suit No. 192 of 2014 in the court of the 2nd Civil Judge (Junior Division) at Alipore on the ground such plaint does not disclose any cause of action. The relevant court be informed immediately so that its records are updated.
24. There will be no order as to costs.
25. Certified website copies of this judgment, if applied for, be urgently made available to the parties upon compliance with the requisite formalities.
(Sanjib Banerjee, J.)