Calcutta High Court (Appellete Side)
Alok Kumar Dutt vs Susanta Kumar Dey & Ors on 11 May, 2015
Author: Nishita Mhatre
Bench: Nishita Mhatre
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
PRESENT:
The Hon'ble Justice Nishita Mhatre
And
The Hon'ble Justice Asha Arora
F.A. 275 of 2012
With
CAN 1920 of 2015
Alok Kumar Dutt
... Appellant
vs.
Susanta Kumar Dey & Ors.
... Respondents
For the Appellant : Mr. Rabin Kumar Dutta
Mr. Debmalya Ghosal
Mr. Arnab Dutt
For the Respondent No.1 : Mr. Hiranmoy Bhattacharya
Mr. Sounak Bhattacharya
Heard on : 06.04.2015, 07.04.2015, 08.04.2015
Judgment on : 11.05.2015
Nishita Mhatre, J.:
1. The challenge in this appeal is to judgment and decree in Title Suit No.2179 of 1999 passed by the City Civil Court, Calcutta on 29th May, 2009. The suit filed by the appellant/plaintiff has been dismissed.
2. The brief facts relating to the present case are as follows:
One Ashutosh Law executed a Will on 9th February, 1958. He died on 21st February, 1964. The probate of his Will was obtained on 28th September, 1964. His two sons Subodh Churn Law and Probodh Churn Law inherited Ashutosh's property. Both Subodh and Probodh were married, but had no children. Subodh's wife Renuka Law and Probodh's wife Gita Law were thus left with the property of Ashutosh Law, which they jointly inherited after the demise of the respective husbands. Renuka and Gita executed a deed of trust on 27th May, 1991 dedicating the property being No.168, Bidhan Sarani to the family deities Shri Shri Lakshmi Mata and Shri Shri Jagannath Dev Jew. Renuka was appointed as the trustee along with Alok Kumar Dutt, who is her nephew. Several objects of the trust have been mentioned in the trust deed; inter alia, the performing of the daily rituals and periodical pujas and ceremonies for the deities and the annual Durga Puja. Besides this, the objects were to establish and support educational institutions, hospitals, give financial assistance during natural calamities, etc. Under the trust deed the settlors were permitted to reside in the premises with all amenities and facilities and without being liable to pay rent, occupation charges, corporation taxes, electricity bills, telephone bills, etc. The deed also stipulated that the sister-in-law of the settlors, i.e., Sudhina Sundari Dasi, younger daughter of Ashutosh Law, would be permitted to reside in the trust property without payment of rent or occupation charges, electricity bills, etc. This provision was made in consonance with the last Will and testament of Ashutosh Law who desired that she should reside in his property during her life time.
3. The trust deed provided that the respondent/defendant Susanta De, the son of Molina (Ashutosh Law's elder daughter) and the members of his family would be permitted to enjoy four rooms in the property, viz., one room on the ground floor, two rooms on the first floor and one room on the second floor of the inner portion of the trust property, besides being permitted the joint use of other parts of the trust property which they were enjoying when the trust deed was executed. The settlors' desire was that Susanta De and the members of his family should reside in the premises, without payment of any rent or occupation charges or corporation taxes. However they were required to pay 1/3rd of the electricity charges and costs of repairs and maintenance of the portion of the trust property in their use and possession. The deed further stipulated that they would be permitted to reside in the premises that they were occupying and to enjoy the same so long as they desired to live in the trust property. However, it was expressly mentioned in the trust deed that Susanta De and the members of his family would not be entitled to make additions or alterations in the area in their occupation without the written consent of the trustees. They were specifically debarred from inducting the relatives of either Susanta De or the members of his family in the part of the trust property occupied by them. In the event Susanta De or the members of his family wished to reside elsewhere they were expected to deliver vacant and peaceful possession of the trust property.
4. By virtue of the trust deed Alok Kumar Dutt, the appellant/plaintiff and the members of his family were enabled to reside in the trust property in the area which they were occupying, without payment of any rent or occupation charges or electricity bills or corporation taxes. But they were required to pay maintenance costs. Alok Kumar Dutt's daughter, Sujata De was also permitted to reside in the suit property along with members of her family on the same terms and conditions as her father.
5. Sudhina Sundari Dasi, the younger daughter of Ashutosh Law, died issueless. As mentioned earlier, she had a life interest in the property as per the Will of Ashutosh Law and by the deed of trust she was permitted to reside in two rooms. She died on 18th July, 1997. Sudhina Sundari Dasi and Susanta De had filed a suit, being T.S. No.3354 of 1994, before the City Civil Court for a declaration that they were entitled to use and enjoy two rooms on the first floor of the trust property described in Schedule A to the plaint and one room on the ground floor, two rooms on the first floor and one room on the second floor and other areas of the trust property as described in Schedule B to the plaint. The suit was filed against the trustee, Alok Kumar Dutt. Sudhina Sundari Dasi died during the pendency of the suit. The question arose whether Susanta De was entitled to the rooms specified in Schedule A to the plaint after her death. The suit was decreed in part. The Court accepted the right of residence of Susanta De and the members of his family in the suit property described in Schedule B to the plaint. The defendant, i.e., Alok Kumar Dutt was permanently restrained from interfering with possession of Susanta De without following the due process of law. The claim of the plaintiffs in that suit for a declaration in respect of the property described in Schedule A was negated. The Court had observed that Susanta De had not acquired any right to the suit property described in Schedule A to the plaint. It further held that with the death of the plaintiff, Sudhina Sundari Dasi, the property occupied by her by virtue of the Will of Ashutosh Law and the trust deed reverted to the trust.
6. The present suit was filed by the plaintiff/appellant on the ground that Susanta De, the defendant herein, was illegally in possession and occupation of the rooms of Sudhina Sundari Dasi after her demise. It was also alleged that the defendant, after the demise of Renuka Law, one of the settlors of the trust property, had indulged in illegal and wrongful acts in the trust property. The plaintiff principally contended that (i) the defendant was wrongfully occupying one room on the ground floor of the property which was allotted to the family deity, (ii) the defendant was not paying any charges as stipulated in the trust deed, (iii) the defendant had encroached on the common areas of the trust property, (iv) the defendant had forcibly taken possession of the rooms occupied by Sudhina Sundari Dasi till she died in July, 1997.
7. According to the plaintiff, the defendant was a licensee in the trust property and therefore, a notice was served on him revoking the licence and requesting him to vacate the trust property. The plaintiff also sought a declaration that the licence of the defendant to occupy and reside in the trust property had been revoked and had therefore ceased. He prayed for the recovery of khaas and vacant possession of the portion held by the defendant described in Schedule C and D to plaint, and `2,37,055/- as mesne profits, and other charges payable under the deed of trust besides damages for wrongful acts.
8. The defendant contested the suit and contended that the plaintiff had no right to revoke the licence or the permission granted to him to reside in the premises by virtue of the trust deed. He contended that he was staying in the premises as a beneficiary of the trust. He had offered the payment of his share of the electricity charges but the plaintiff had refused to accept the same. The defendant also contended that he was entitled by the decree of the City Civil Court in Title Suit No.3354 of 1994 to continue to occupy the property mentioned in the decree in that suit. He further pleaded that he had a right to occupy the rooms of Sudhina Sundari Dasi, which the plaintiff had locked forcibly, as he had obtained a probate of her Will.
9. Evidence was led by the parties before the Trial Court. Both the plaintiff and the defendant No.1 testified before the Trial Court.
10. On the basis of the pleadings and the evidence, both oral and documentary, on record, the Trial Court dismissed the suit. However the Court was of the view that the defendant No.1 in the present case had not acquired any right to the property which was in occupation of Sudhina Sundari Dasi when she died and therefore was not entitled to occupy the rooms possessed by her. The Court held that the plaintiff was not entitled to revoke the permission/licence of the defendant No.1 in the trust property.
11. Mr. Rabin Kumar Dutta, the learned Counsel for the appellant submitted that the respondent is a licensee and in permissive possession of the suit premises. Therefore, according to him, the present suit can be filed by the trustees to evict a licensee. The learned Counsel urged that the respondent was not a beneficiary of the trust and therefore had no right to continue in the property if he did not comply with the stipulations in the trust deed. The learned Counsel pointed out that the licence has been revoked on 31st August, 1999 by the appellant, acting in his capacity as a trustee. He submitted that the respondent had stopped paying the electricity charges and the maintenance charges as required under the trust deed. The respondent had inducted outsiders into his premises. Therefore, he was liable to be evicted. The learned Counsel took us through the deed of trust by which the settlors Renuka Law and Gita Law had settled the property which devolved on them after the death of Ashutosh Law and his sons Subodh and Probodh. He submitted that the illegal act of the respondent in locking the rooms which were in possession of Sudhina Sundari Dasi till her death made him liable for eviction from the suit premises. The learned Counsel urged that in an earlier suit the Trial Court had held that the respondent was not entitled to the rooms held by Sudhina Sundari Dasi and that those rooms would revert to the trust after her death.
12. Mr. Hiranmoy Bhattacharya, the learned Counsel for the respondent, drew our attention to the objects of the trust and the duties of the trustees enumerated in Clauses 10 to 17 of the trust deed. He submitted that on the death of Renuka Law the appellant inducted his daughter - respondent No.2 and his son-in-law respondent No.3 as trustees of the estate of the deities. The learned Counsel urged that the appellant's possession vis-à-vis the trust property was no better than that of the defendant inasmuch as both of them were beneficiaries under the trust. He submitted that the defendant could never be considered to be a licensee because a licence is confined to the person to whom it is granted whereas the trust deed in the present case permits not only the respondent No.1 but the members of his family to reside there as long as they desired. The learned Counsel pointed out that no declaration was sought to the effect that respondent No.1 was a licensee of the trust property. He has drawn our attention to the provisions of the Trust Act and submitted that the plaintiff had no right to appoint trustees after the death of Renuka Law. He also denied that the respondent No.1 had received any bills pertaining to the maintenance or electricity charges. Therefore, according to him, he was unable to pay his share although he was always ready to pay the same.
13. As mentioned earlier, by the trust deed of 27th May, 1991 Renuka Law and Gita Law, the settlors, had settled the property which devolved on them in favour of the family deities. It is clear that their intention was not to disturb those who lived in the trust property. Clause 5 of the trust deed permits Sudhina Sundari Dasi to reside in the rooms occupied by her in the trust property without payment of any charges. Clause 6 of the trust deed directs the trustees to allow the respondent No.1 and the members of his family to reside and continue in possession of four rooms
- one room on the ground floor, two rooms on the first floor and one room on the second floor. These were rooms that the respondent was occupying before the creation of the trust. Thus, the purpose of the settlors was not to disturb the respondent from enjoying the trust property and the possession of the four rooms. However, the settlors had also imposed the liability on the respondent No.1 of paying 1/3rd of the electricity consumption charges and an equal component for the costs of repairs and maintenance. The trust deed authorizes the respondent No.1 and his family to live on the premises of the trust property as long as they wished. A similar settlement was made in favour of the appellant. Clause 18 of the trust deed empowers the trustees to issue notices to the tenants and occupiers of all immovable properties belonging to the trust estate, to quit or to repair or to abate any nuisance or to remedy a breach of covenant. The trustees, under Clause 20, are authorised to evict trespassers on the property. The trustees have also been empowered under Clause 21 to initiate suits and to defend all actions against the trust estate. Thus, the trustees are only empowered to take action against trespassers in the suit property. The respondent No.1 cannot, by any stretch of imagination, be considered a trespasser. He is a beneficiary of the trust as is the appellant, the only difference being that the appellant is not expected to pay any charges for occupying the premises. The trust deed specifies that the trustees have been empowered to hold office for life. It further stipulates that the trusteeship of Alok Kumar Dutt can be filled in by male and female members of his family. The trustee Alok Kumar Dutt is empowered to appoint another trustee.
14. In the present case, the Trial Court has correctly assessed the evidence on record and concluded that the appellant was not entitled to revoke the permission granted to the respondent No.1 to reside in the premises. It appears from the record that the appellant has acted individually against the respondent without the concurrence of the other trustees. The Trial Court has rightly concluded that in such circumstances no suit could have been filed by the appellant against the respondent. In the case of H.E.H. The Nizam's Jewellery Trust. M/s. Shanti Vijay & Co., etc. etc. vs. Princess Fatima Fouzia & Ors. reported in AIR 1980 SC 17 the Supreme Court held that the authorisation of trustee in favour of a co-trustee must be express, specific and in the clearest of terms. In the present case there is no material on record to show that the other trustees, respondent Nos.2 and 3 had authorised the appellant to file the present suit. Therefore the suit was not maintainable.
15. In the earlier suit being T.S. No. 3354 of 1994 the City Civil Court had held that the appellant and respondent were beneficiaries in the trust property and that the respondent was entitled to the possession of four rooms as mentioned in the Schedule B to the plaint. The Trial Court has rightly concluded that the respondent No.1 and members of his family are entitled to use and enjoy only those parts of the trust property as mentioned in the deed, as long as they desire. They are not entitled to possession of the rooms which were occupied by Sudhina Sundari Dasi prior to her death. In view of the provisions of Clause 6 of the trust deed the appellant could not have filed a suit for eviction of the respondent.
16. The allegation that the respondent was not willing to pay the amounts specified under the trust deed is unfounded. There is material on record to show that the appellants had refused to accept the payment sought to be made by the respondent in respect of various charges that he was required to pay under the trust deed. Therefore, we do not find any reason to interfere with the judgment and decree passed by the Trial Court.
17. The appeal is thus dismissed. No order as to costs. The application being CAN No.1920 of 2015 is also dismissed. The concerned department is directed to send the LCR to the Trial Court.
18. Urgent certified photocopies of this judgment, if applied for, be given to the learned Advocates for the parties upon compliance of all formalities.
(Asha Arora, J.) (Nishita Mhatre, J.)