Calcutta High Court
Rita Shaw And Ors. vs Dipendra Lal Shaw And Anr. on 3 April, 2006
Equivalent citations: 2006(4)CHN414
Author: Aniruddha Bose
Bench: Aniruddha Bose
JUDGMENT Aniruddha Bose, J.
1. This is a suit for partition of the estates of one Samarendrajit Shaw and Smt. Jashoda Shaw being the parents of the plaintiffs and the defendant. The plaintiffs are the two daughters and one son, whereas the defendant is the eldest son of the deceased couple. Originally, one Mrinalini Debi being the landlady of certain premises from where said Samarendrajit Shaw used to carry on business was impleaded as the second defendant, but the suit against her was dismissed by this Court. Accordingly, the eldest son of Samarendrajit Shaw and Jashoda Debi became the sole defendant in the suit, and is being referred to in this judgment as "the defendant". Samarendrajit Shaw and Smt. Jashoda Shaw had passed away on 6th October, 1982 and 2nd November, 1977 respectively. They had four children, all of them being major by age, who are parties to the suit. However, the third plaintiff, originally named Krishnananda Shaw, had later on renounced the world by joining a religious order and took the name of Swami Paripurnananda. It is the admitted position, i.e. accepted by both the parties, that having renounced the world he has no claim over the property sought to be partitioned.
2. Thus, the shares of the parties to the properties of said Samarendrajit Shaw and Jashoda Shaw also is admitted being equal shares of one-third each. The suit for partition has been instituted in respect of the following properties :
(i) A dwelling house being a two-storied building, bearing premises number 83, Lenin Sarani (formerly Dharmatala Street) Calcutta-13.
(ii) A two-storied house being premises No. 20/2 and 22, Harinbari Lane, Calcutta, within the said jurisdiction.
(iii) ...Land comprised of approximately twenty bighas in Mouja Jagatballavpur in the district of Howrah, particulars of which has been given in schedule "A" to the plaint.
(iv) Business of wine, being operated under the name and trading style of M.L. Shaw & Co. being carried on from two rented premises bearing street number 15, Ashutosh Mukherjee Road and 2, Dr. Rajendra Road, Calcutta.
(v) ...Cash money and other movable properties alleged to be lying in a bedroom in the premises No. 83, Lenin Sarani, a list of which has been made Annexure "B" to the plaint.
(vi) A house known as "Provash Kanan" situated at holding No. 234 at Bhuban Chandra Bhar Road, Chandannagar, District-Hooghly which originally belonged to Smt. Jashoda Shaw, since deceased, and certain jewellery and gold ornaments which, it is claimed, belonged to her.
3. Barring the dwelling house situated at 83, Lenin Sarani and the jewelleries and movables, the heritability of all the other properties are in dispute. So far as the cash and jewellery and the movables are concerned, their quantum available for partition are also in dispute.
4. So far as the two-storied house at 20/2 and 22. Harinbari Lane, Calcutta is concerned, it is the defendants's case that this building falls outside the scope of partition. The argument of the defendant on this count is that by a deed of trust executed on 12th December, 1949, said Samarendrajit Shaw (deceased) had divested himself of the ownership of the said property which became a debuttar property, and as per the deed of trust, the defendant is the trustee and shebait thereof as of now. The plaintiffs cannot have any claim over this property. As regards the 20 bighas of land at Jagatballavpur, it is the case of the defendant that about 11 bighas of this land stands in the name of the plaintiff No. 3 and the defendant and the land in dag Nos. 3175 and 3176 also stand in his name. The rest of the land stood in the name of late Samarendrajit Shaw. Thus, the land which stood in his name could not be the subject-matter of the partition suit.
5. Regarding the business of wine, which is being conducted under the trading style of M. L. Shaw & Co., the defendant has contended that the said business was being run by him and his late father as partnership business constituted by a deed of partnership dated 17th August, 1982, which has been marked "Exhibit 12". This deed provides that in the case of death of any of the partners, the surviving partner shall become the sole and absolute owner of the business. Relying on this deed, the defendant has made out a case that he had become the sole proprietor of that business on the demise of his father. As regards the tenanted premises from where the business is being run, the defendant's case is that this premises cannot be the subject of the suit for partition as this was a joint tenancy of Samarendrajit Shaw and the defendant during the former's lifetime and on his death, the landlady has accepted the latter as the sole tenant. So far the movable assets are concerned, the defendant's case is that the first two plaintiffs had taken possession of all the ornaments as well as the cash money including those which belonged to the defendant and his wife.
6. The estate of Late Smt. Jashoda Shaw comprises of certain property known as "Pravash Kanan" situated in Chandannagore in the district of Hooghly. The case of the defendant is that the said property was conveyed in favour of plaintiff No. 3 and the defendant by their mother by executing a deed of gift and thus he has become the absolute owner of the property gifted to him.
7. Plaintiff Nos. 1 and 2 have claimed that all the properties are part of the estate of their deceased parents and heritable property. So far as the trust property is concerned, it is their case that the deed of trust is void in that the disposition made therein is in favour of the shebait and not in favour of the deity, and the devolution of Shebaitship as specified in the deed, a certified copy of which has been tendered and marked "Exhibit 5" runs contrary to law, being hit by the rule against perpetuity, as contained in Section 14 of the Transfer of Property Act, 1882. It is also the case of the plaintiffs that exclusion of female heirs from the office of shebaitship is not permissible under the Hindu law. On the business of M.L. Shaw & Co., the plaintiffs' contention is that on the death of their father the firm stood dissolved and the plaintiffs as the heirs of Samarendrajit Shaw became entitled to the accounts and surplus of the dissolved firm in their respective shares.
8. In the light of the above, considering the pleadings the following issues were framed by this Court for adjudication of the instant suit :
(1) Whether the suit is maintainable in its present form and in accordance with law?
(2) Whether the suit is barred by limitation?
(3) Whether the plaintiffs have any cause of action for the suit?
(4) Whether the estate of Samarendrajit Shaw, since deceased, can be partitioned amongst the plaintiffs and the defendant No. 1? If so, in what proportions?
(5) Whether the estate of Smt. Jashoda Shaw, since deceased, is liable for partition amongst the plaintiffs and the defendant No. 1? If so, to what extent?
(6) Whether the premises No. 22, Harinbari Lane, Calcutta, is a debuttar property?
(7) Was the business known as "M.L. Shaw & Co.", a partnership business of Samarendrajit Shaw, since deceased, and the defendant No. 1 as alleged in paragraph 5 of the Written Statement of the defendant No. 1?
(8) Whether the defendant No. 1 has become the absolute owner of the said business known as "M.L. Shaw & Co." after the death of the other partner, Samarendrajit Shaw, as alleged in paragraph 5 of the Written Statement of the defendant No. 1?
(9) Whether the plaintiffs Nos. 1 and 2 are entitled to partition of the dwelling house, being premises No. 83, Lenin Sarani (formerly Dharmatolla), Calcutta-700 013?
(10) Whether the plaintiffs are entitled to get a decree as prayed for?
(11) Whether the plaintiffs are entitled to get other reliefs, if any?
9. As regards the first three issues, there was no effective contest. Having considered the pleadings and submissions made on behalf of the parties, I do not find any inherent defect on the aspect of maintainability of the suit. Accordingly, these three issues are answered in the affirmative.
10. The parties are also in agreement as regards their respective shares in the estate of late Samarendrajit Shaw. The respective share is equal one-third share for the plaintiff Nos. 1 and 2 and the defendant, as I have observed hi the earlier part of this judgment. So far as estate of Samarendrajit Shaw is concerned, partition has been claimed in respect of certain property described as Jagatballavpur property. Particulars of this property has been given in schedule "A" to the plaint, which is reproduced below:
1. 11 bighas agricultural lands in the name of Dipendralal Shaw and Krishnananda Shaw.
2. Tinkari's land in the name of Dipendralal Shaw and Krishnananda Shaw in dag Nos. 3175 and 3176.
3. Dhiren's Land & Pond in the name of Samarendrajit Shaw in dag Nos. 3418, 3419, 3416.
4. Hedo's land and pond in the name of Samarandrajit Shaw--land dag No. 3289, pond dag No. 3293.
11. In her affidavit-evidence, the plaintiff witness, being plaintiff No. 2 herself has stated that all the lands or immovable properties of Jagatballavpur belonged to said Samarendrajit Shaw. However, barring such statement, no evidence has been adduced to sustain the claim of the plaintiffs that such lands actually belonged to their father. When specifically questioned as to whether the part of the Jagatballavpur property which stood in the name of the defendant was acquired by him out of his own income in course of cross-examination, the second plaintiff initially answered, "I do not know" (question 138), and on the question being repeated, she answered "I do not agree" (question 139). There being no evidence to sustain the plaintiffs' case that the Jagatballavpur property, to the extent the same stands in the defendant's name, was owned by heir father. I hold that such property does not come within the purview of this suit. The property which stands in the joint names of Dipendralal Shaw and Krishnananda Shaw also such land cannot come within the purview of this suit, as the estate of Krishnananda Shaw is not the subject-matter of the present suit. This disposes of issue No. 4. The share of the parties as regards other properties of said Samarendrajit Shaw (since deceased) described in schedule "A" to the plaint would be one-third each.
12. Issue No. 5 relates to the estate of late Jashoda Shaw. This comprises of certain property known as "Provash Kanan", situated at holding No. 234 at Bhuban Chandra Bhar Road (Chandannagore) in the district of Hooghly. In respect of this property, it has been pleaded in paragraph 6 of the plaint:
The plaintiffs mother Smt. Jashoda Shaw died on 2nd November, 1977 leaving a house known as "Provash Kanan" being holding No. 234 at Bhuban Chandra Bhar Road, Chandannagore, District-Hooghly outside the said jurisdiction. She also left gold ornaments and jewellery in the bedroom of the said Samarendrajit Shaw at the residential house at No. 83, Dharamtalla Street (now Lenin Sarani) Calcutta within the said jurisdiction.
13. In paragraph 6 of the Written Statement, the defendant has dealt with this paragraph in the following manner :
With reference to the allegations made in paragraph 6 of the plaint, this defendant states that they are substantially correct.
14. However, in his affidavit-evidence, the defendant has made out a case that during her lifetime, their mother had executed a deed of gift of this property in favour of the plaintiff No. 3 and himself. This deed was furnished as security by late Samarendrajit Shaw in connection with a criminal proceeding initiated by the municipal authorities before the Court of Senior Municipal Magistrate, but the deed could not be traced back. In support of such claim, certified copies of two orders of the Court of Senior Municipal Magistrate, Calcutta in Case No. 9274 C of 1974 and 6739 C of 1977 (Exhibits 9A and 9B), a photocopy of a letter purportedly written by Jashoda Saha dated 9th June, 1973 addressed to the Chief Executive Officer, Municipal Corporation, Chandannagore ("Exhibit 14"), and a copy of parchha has been produced. However, none of these exhibits demonstrate title of the plaintiff No. 3 and the defendant over the property described as Provash Kanan. The certified copy of the municipal record (parchha) does not clearly describe the property. Nor the same can be the proof of title so far as "Exhibit 14" is concerned, it is a photocopy of a letter, where the body of the letter ex facie appears to have been written by a person other than its signatory, and is an unreliable piece of evidence for proving title over an immovable property. No attempt has been made to produce certified copy of the deed. Exhibits 9A and 9B also do not prove the deed of gift, but only proves the initiation of the proceeding.
15. This claim has been resisted by the learned Counsel for the plaintiffs on two counts. It has been submitted that under the established rule of evidence, a written document has to be proved by producing the same. Two authorities have been relied on for this proposition, AM MI v. Kallander Annak and Bal Hira Devi v. Official Assignee, Bombay . It has also been submitted that in absence the original document or even the certified copy of the document, secondary evidence cannot be given on the plea that the original document was lost. It has further been submitted that such a plea should be rejected straightaway, as no effort has been made by the defendant to even produce the certified copy of the documents. The cases relied on for this proposition are Roman Catholic Mission v. State of Madras ; Sulochana Devi v. Gobinda Chandra ; Ram Jawai v. Shakuntala Devi AIR 1993 Del 330 and Mohammed Yusuf v. D .
16. In the present case, the document through which title of the property is sought be the established has not been produced. The author of the document in question obviously cannot be examined, as she is no more. The evidence of the defendant in the form of affidavit, is :
During her lifetime our mother, Smt. Jashoda Shaw, (since deceased), executed a registered deed of gift in respect of the premises known as "Provash Kanan" at No. 234, Bhuban Chandra Road, Chandannagore, in favour of the plaintiff No. 3 and myself.
17. On the strength of such evidence and pleading, I cannot accept the contention of the defendant that a valid deed of gift was executed in favour of him and the plaintiff No. 3 vis-a-vis the Chandannagore property. Extract from the assessment record cannot establish title of the property in question. The propositions of law emerging from the authorities above support the plaintiffs' case. Under the circumstances, I hold that the property at "Provash Kanan", being the estate of Jashoda Shaw, is heritable property and liable for partition, between plaintiff Nos. 1 and 2 and the defendant in equal shares of one-third each.
18. The sixth issue relates to the Harinbari Lane property, which was described originally as 20, Harinbari Lane but in course of hearing it was found and agreed upon by the learned Counsels for both the parties that the proper description of the property would be 20/2 and 22, Harinbari Lane. Substantial argument was advanced on this issue as to whether this property could be part of the estate of Samarendrajit Shaw, and hence could come within the scope of this suit or not.
19. The admitted position is that Samarendrajit Shaw was the absolute owner of this property. It is also the admitted position that a deed of trust was executed by him on 12th December, 1949, under which the property in question was transferred in his favour, as the first trustee and shebait, in consideration of religious benefit and for diverse other good causes including erecting a temple at Jagatballavpur and also establishing a deity by name of Sri Gobinda Jew in the said temple. As it appears from the copy of the deed being Exhibit "5", the office of the trustee and shebait is to devolve in the following manner :
AND the settler both hereby constitute, appoint and nominate himself to the first trustee and shebait and so on shall succeed as shebaits and trustees but if all the said shebaits and trustees should die leaving as heirs in the male line except his or their widow or widows then such widow or widows are to be the shebatis and trustees for their lives but after their death the male heirs in the female line (if any) are to succeed and in case of failure of such male heirs in the female line the female heirs in the male line are to succeed and on their failure the female heirs in the female line are to succeed. In the event of failure of all heirs being descendents as aforesaid of the settler. Such heirs of the said settler for the time being as shall be then living shall be the trustees and shebaits. AND it is hereby declared that if any person entitled to succeed to be such shebait and trustee be a minor then the guardian for the time being of such shebait and trustee shall be the shebait and trustee during the minority PROVIDED ALLWAYS AND IT IS HEREBY EXPRESSLY DECLARED that if any person or persons entitled to be a shebait and trustee renounces the Hindu religion or being a female shebait shall become unchaste then he/she or they shall for the purpose of these presents be considered as dead and the person next entitled to succeed as shebait as trustee shall succeed.
20. Mr. Jishnu Saha, assisted by Mr. S. Ghosh, learned Counsels for the plaintiffs argued that this deed of trust is void, as this runs against the known law of succession, in that it excludes female heirs in the line of succession. Another ground of attack is that this the deed does not constitute debuttar property in view of the fact that the property is not vested in the deity, but in the shebait. The shebaitship is not only an office but property as well, and devolution of such shebaitship as conceived in this deed violates the Rule against perpetuity. The other ground, on which the deed of trust is assailed as being void is that the beneficiaries specified therein are uncertain, and the same is contrary to the provisions of Section 6 of the Indian Trusts Act.
21. In support of his submissions, Mr. Saha has placed reliance on Chapter V of the Tagore Law Lecture entitled "The Hindu Law of Religious and Charitable Trusts." (5th Edition) by His Lordship The Hon'ble Justice Bijon Kumar Mukherjee (as His Lordship then was). He has also cited the following authorities on this aspect:
(i) Badrinath v. Punna ;
(ii) Profulla Chorone Requitte v. Satya Chorone Requitte ;
(iii) Anath Bandhu v. Krishna Lal ;
(iv) Mustt. Zohra Khatoon v. Janab Mohammed Jane, Alam 1977(2) CLJ 447.
(v) Gokul Chand De v. Gopi Nath De ;
(vi) Ganesh Chunder v. Lal Behari Dhur 41 CWN 1;
(vii) Manohar v. Bhupendranath 1933 ILR Cal 452;
(viii) Rai Kishori Dassi v. Official Trustee, West Bengal ;
(ix) Sitesh Kishore v. Ramesh Kishore .
22. Mr. Chatterjee, assisted By Mr. Pradip Dutta. both learned senior Advocates, appearing for the defendant on the other hand countered this argument mainly on the ground that the choice of the settler is absolute in creation of a trust. Exclusion of the property which forms the subject-matter of this deed of trust from the scope of the present suit has been defended on two other planks. One is that the execution of the deed of trust was within the knowledge of the plaintiffs all along, and since they have not claimed cancellation of the deed, the deed of trust remains valid, and the Harinbari Lane property cannot be held to be heritable property. He contended that the question of validity of this deed may arise when the defendant, being the trustee is no more, but at present the devolution of the office of trustee of shebait upon the defendant suffers from no disability. My attention has been drawn to the answers of Ms. Puspa Shaw, the plaintiffs' witness, to question Nos. 59 to 74 in course of cross-examination, where she agreed to the existence of the trust deed, and a series of money receipts (collectively marked "Exhibit 13") signed by Lalitmohan Chakraborty, who, it was represented, was the priest performing the puja of the deity installed in pursuance of the said trust. As per this series of exhibits, the money was received from the defendant.
23. What calls for determination at the primary stage on this issue is whether the property in question is debuttar or not. The relevant portion of the trust deed in this regard is reproduced below :
AND IT IS HEREBY DECLARED AND AGREED that the said trust premises shall be and are held by the shebait and trustee their heirs upon trust to collect, get in receive the rents issues and profits of the said lands hereditamants and premises Nos. 20/2 & 22, Harinbari Lane, Calcutta and thereout to pay all Government revenues, municipal taxes, rates, assessments charges and all other necessary outgoings for and in respect of the trust premises of the getting in and receiving the said income thereof and to apply forty per cent of the surplus for the ownership of the deity Sri Gobinda Jew to be established as aforesaid, the performance of the acts of devotion and celebration of the several festivals and establishments and support of the dispensary and another forty per cent for creating a reserve fund for erection of a temple and for repairs of the trust premises and meeting any emergency expenses and the remaining twenty per cent for the maintenance and/or allowance of the shebait or shebaits. PROVIDED NEVERTHELESS the Shebait or shebaits shall not be entitled to any maintenance and/or allowance when the trust premises or anyone of them will remain vacant and shall not yield any income.
24. On the question as to whether the property is debuttar or not, the following passage from the authoritative text to which I have referred to in the earlier part of this judgment may be referred to:
As regards the first question, I have stated already that in order that there may be a real dedication to a deity, it is necessary to show that the grantor intended to divest and did divest himself completely of every part of the property which was the subject-matter of the grant, and the dedication was not a mere colourable device to tie up the property for the benefit of the donor's heirs or other relations.
25. In course of hearing, argument was advanced that the deed in question was void, because under the deed, the property was vested in the shebait, and not in the deity. Secondly, the exclusion of female heirs from being appointed as a trustee or shebait is contrary to the known rules of succession under the Hindu law.
26. In this respect, the two decisions of the Hon'ble Supreme Court in the cases of Badrinath (supra) and Prafulla Chorone Requitte (supra) are for the proposition that shebaitship is not merely an office but is property as well, and hence subject to the rules of devolution of property. The case of Anath Bandhu De (supra) is also for the proposition that prescribing a line of succession to the office of shebait in tail male is opposed to Hindu law and void. The other authorities relied upon by the learned Counsel for the plaintiffs, to which I have referred to are also for the same proposition of law, which appears to have emerged originally from a Full Bench decision of this Court in the case of Monohar v. Bhupendra Nath 1993 ILR Cal 452.
27. The property in question, however, stands vested in the defendant as of now. This deed of trust has also been acted upon, as it appears from Exhibit 13 series, comprising of the original receipts. I am also satisfied from the evidence that Lalitmohan Chakraborty was the priest of a temple, the construction of which was referred to in the deed of trust. Though the plaintiff witness has stated in answer to question No. 64 in her cross-examination that she used to bear the expenses of shebapuja, though not regularly as her father used to bear the expenses, in absence of any corroborative evidence her statement relating to her contribution towards shebapuja is not a reliable piece of evidence. Thus I find that the deed of trust was acted upon. I am also of the opinion that the beneficiaries specified in the deed of trust have been defined with reasonable certainty.
28. As per the deed of trust, the father of the plaintiff was divested of ownership of the Harinbari Lane property in the year 1949 itself. The plaintiffs have not prayed for cancellation of this deed. At present, the defendant is acting as the trustee as well as the shebait. In this factual context, the authorities relied upon by the plaintiffs do not assist their claim. Thus, I hold that though Harinbari Lane property may not in its strict sense be held to be debuttar property, as the dedication of the property was not to the deity, it is no doubt a trust property and cannot come within the purview of this suit. This disposes of the issue No. 6.
29. Issue Nos. 7 and 8, I propose to deal with simultaneously, as both these issues are interlinked, relating to the business of M. L. Shaw & Co. The admitted position is that Samarendrajit Shaw was the proprietor of a business of sale of foreign liquor under the name and style of M. L. Shaw & Co. The place of business was 15, Ashutosh Mukherjee Road, Kolkata - 700 025 and some part of the business was being carried on from No. 2, Dr. Rajendra Road. During his lifetime, the licence granted under the Bengal Excise Act was in his name. The licence in the name of Samarendrajit Shaw is not an exhibit, but it appears so from various contemporaneous documents which have been exhibited, including "Exhbit 11" (being the application of Samarendrajit Shaw dated 21" July, 1982 for inclusion of the defendant's name in the licence) and "Exhibit 12" (the deed of partnership).
30. The defendant has contested heritability of this business, contending that business of M.L. Shaw & Co. was a partnership business uptil October 6, 1982, of which the defendant and his father, Samarendrajit Shaw were partners and on his death, the defendant has become the sole owner thereof.
31. In support thereof, a deed of partnership dated 17"* August, 1982 has been relied upon, being "Exhibit 12". This partnership has been registered with the Registrar of Firms, Societies and Non-trading Corporation. West Bengal. This has been established by the evidence of one Gopal Chandra Mukherjee, the Head Clerk working with the Registrar of Firms, Societies and Non-trading Corporation, who deposed in pursuance of a subpoena issued by this Court. Clause 19 of this deed of partnership provides:
On the death of any partner the surviving partner shall become the sole and absolute owner of the said partnership business.
32. It is the further contention of the defendant that by a letter dated 21st July, 1982 ("Exhibit 11"), Samarendrajit Shaw had brought to the notice of the Collector of Excise the fact of constitution of the said partnership business and requested him to issue the license in the joint names of Samarendrajit Shaw and Dipendralal Shaw. On the death of his father, it appears that the first and the second plaintiff had made a petition for registration of their names as vendors of the said shop, but this was rejected, and the defendant was allowed to run the shop temporarily. Thereafter, the excise license in favour of the defendant has been extended temporarily from time to time, and in support of this contention the defendant has relied on several communications issued by the Excise authorities, being Exhibit "16" (which includes a series of such communications).
33. So far as the premises No. 15, Ashutosh Mukherjee Road and No. 2, Rajendra Road are concerned, the defendant's case is that he Ins been acknowledged as the sole tenant in respect of these premises. Four rent receipts in original have been tendered as exhibits on this aspect, two of them for the months of March, 1982 for the respective premises, bearing the names of Samarendrajit Shaw and Dipendralal Shaw, and two of them for the month of January, 1983, in the name of the defendant only. These have been marked "Exhibit 7" collectively. Also tendered as "Exhibit 8" collectively are copies of two challans showing deposit of rent with the Rent Controller for the months of November, 2004 in respect of the above two premises. The rent appears to have been deposited in the names of Dipendralal Shaw and Ayetri Shaw. Through such exhibits, the defendant has sought to establish his exclusive tenancy of the premises in question.
34. On these two issues, the plaintiffs' case is that on the death of their father, the partnership firm stood automatically dissolved under the provisions of Section 42 of the Partnership Act, 1932, and they are entitled to have the assets of the firm distributed among themselves, being the heirs of Samarendrajit Shaw. Mr. Saha has argued that no benefit can be taken by the defendant on the strength of the excise license issued in his favour, as these were being granted as per an interim direction of this Court. In this regard, a copy of the signed copy of the minutes of an order passed by an Hon'ble Single Judge of this Court on 1st March, 1983 in a proceeding arising out of this suit has been referred to. In this order, the Hon'ble Single Judge, inter alia, was pleased to direct:
Interim order in terms of prayer (b) is vacated, but the licensing authority who is represented in Court is directed to act in accordance with law in issuing necessary license to the defendant No. 1 but the same will not be issued in the name of the partnership concern M.L. Shaw & Co. Such licence, if issued, will be in the name of the defendant No. 1 on a temporary basis until final disposal of the suit.
35. The plaintiff witness, in answer to question No. 93 in course of cross-examination has admitted that she had on no occasion paid any rent in respect of the premises bearing No. 15, Ashutosh Mukherjee Road.
36. So far as the business of M. L. Shaw & Co. is concerned, which admittedly is a business solely for sale of foreign liquor is comprised of three components. Because of peculiarity and special features of this trade, these three components cannot be dealt with in a composite manner. The first is the business itself, being M.L. Shaw & Co. which essentially involves conducting transactions under this trading style, its stock-in-trade, cash and bank balance, debts, credits, assets etc.
37. The second component is the place or location from which the business is run. The tenancy admittedly is not in the name of the firm, but in the name of an individual, which is regulated by specific tenancy regulation statute.
38. The third component is excise license, without which this business cannot be operated, and this again, under the provisions of the Bengal Excise Act, 1909, and rules thereof, is in the nature of a personal privilege, and not a mere incidence of the business.
39. Of these three components, I shall deal with the business of M.L. Shaw & Co. first.
40. The main thrust of the plaintiffs' argument on this count is that a partnership business comprising of only two partners automatically dissolves on the death of one partner, and Clause 19, which has been reproduced in the earlier part of this judgment, cannot transform the business into a proprietary concern. Mr. Saha has first drawn my attention to Clause 18 of the deed of partnership, which stipulates:
Upon determination of the partnership business the assets including goodwill, stock-in-trade, fixtures, articles of furnitures shall be sold and all outstandings of the partnership and applied FIRST in payment of the debts and liabilities of the firm and LASTLY the balance shall be divided and distributed among the partners in equal shares and in case of death of any partner his share will go to his heirs according to law.
41. The contradiction between this clause and Clause 19 is apparent, as Clause 19 specifically provides that on the death of either of the partners, his share would go to his heirs. The plaintiffs' Counsel has submitted that in case of ambiguity, the former clause ought to prevail over the latter clause, and relied on the decision of the Hon'ble Supreme Court in the case of Md. Kamgarh Shah v. Jagdish Chandra . In this judgment, the Hon'ble Supreme Court held:
If and when the parties have first expressed themselves in one way and then go on saying something, which is irreconcilable with what has gone before, the Courts have evolved the principle on the theory that what once had been granted cannot next be taken away, that the clear disposition by an earlier clause will not be allowed to be cut down by a later clause....
42. On the aspect of invalidity of transformation of the partnership to a proprietary business, as projected by the defendant, the authorities relied upon by the plaintiffs are (i) Commissioner of income Tax, Patiala v. Rangila Ram and Ors. 2001(9) SCC 333, (ii) Beharilal Jaiswal v. C.I.T , (iii) Commissioner of Income Tax v. C.S. Mills , (iv) Rahipada Saha v. State of West Bengal, Calcutta Law Times 1989(1) HC 191 and In Re: Kedarnath Prasad 89 CWN 779. The cases relied on by the defendant relating to this point as also on the point that the rented premises belonged to the firm are (i) Narayanappa v. Bhaskara Krishnappa (ii) Dwijendra v. Rabindra Nath (iii) Chunnu Meah v. Tnanda Mean 49 CWN 799. Addressing the provisions of Section 42 of the Partnership Act, Mr. Chatterjee has submitted that the provision of dissolution of a firm by the death of a partner "is subject to contract between the partners", as contained in the opening sentence of Section 42 of the Act. It is his argument that since there is a specific clause in the deed for the surviving partner to become sole owner of the business, Sub-clause (c) of this section would not operate in the instant case.
45. I shall briefly analyse the ratios of the large body of authorities relied on by the respective parties for determining as to whether the firm has dissolved or the business of the firm has vested in the defendant as proprietorship business.
46. The decision of the Hon'ble Supreme Court in the case of Commissioner of income Tax, Patiala v. Rangila Ram (supra) related to the question of partnership in liquor business. It has been held in this case:
The basic principle, as it seems to us, is that the liquor business is res extra commercium. No one may deal in liquor without express permission. It is only the licensee who is granted such permission. If he enters into a partnership to deal in liquor, all other partners would, as partners, also be dealing in liquor and holding the same. This would be contrary to the basic principle and illegal.
45. The controversy in the case of Beharilal Jaiswal (supra,) arose on rejection by the income-tax authorities and application for registration of partnership firm under Section 185 of the Income-tax Act for carrying on liquor business. It was held in this case that the constitution of the firm without permission from the State Excise authorities was illegal. The Hon'ble Supreme Court found such partnership agreement, in the absence of permission from excise authorities, would be illegal.
46. The case of Commissioner of Income Tax v. G.S. Mills (supra) also dealt with this point, and the business involved there did not relate to liquor. This is how Section 42(c) of the Partnership Act has been construed in this authority:
Section 42(c) of the Partnership Act can appropriately be applied to a partnership where there are more than two partners. If one of them dies, the firm is dissolved; but if there is a contract to the contrary, the surviving partner will continue the firm. On the other hand, if one of the two partners of a firm dies, the firm automatically comes to an end and, thereafter there is no partnership for third party to be introduced therein and, therefore, there is no scope for applying clause (c) of Section 42 to such a situation. It may be that pursuant to the wishes or the directions of the deceased partner the surviving partner may enter into a new partnership with the heir of the deceased partner, but that would constitute a new partnership. In this light Section 31 of the Partnership Act falls in line with Section 42 thereof that section only recognizes the validity of a contract between the partners to introduce a third party without the consent of all the existing partners: it presupposes the subsistence of a partnership: it does not apply to a partnership of two partners which is dissolved by the death of one of them, for in that event there is not partnership at all for any new partner to be inducted into it without the consent of others.
47. The two decisions of this Court, being the cases of Rahipada Saha (supra) and In re: Kedarnath Prasad broadly are for the same principle laid down by the above-referred two decisions of the Hon'ble Supreme Court construing the legality of partnership business in liquor trade.
48. The three decisions relied on by the learned Counsels for the defendant are for the proposition that whatever is brought into the business of partnership during its subsistence becomes property of the firm, and on this basis every partner would have an interest in the property. These authorities would be relevant when I shall deal with the issue of tenancy, but having regard to the ratio of the decision of the Hon'ble Supreme Court in the case of Commissioner of Income Tax v. G.S. Mills (supra), I am satisfied that the partnership between Samarendrajit Shaw and the defendant stood dissolved on the death of the former.
49. Moreover, having regard to the nature of the business, Constitution of such a partnership would have been illegal in view of the provisions of Rules 207 and 208 of the Bengal Excise Rules framed under the provisions of Section 86 of the Bengal Excise Act. These rules prohibit transfer of a licence for running business of liquor without previous permission of the Collector and the approval of the Commissioner, (Rule 207) and further postulates that admission of any person to partnership after settlement shall be deemed to be partial transfer, and attract the restrictions of Rule 207. There being such clear prohibition of law, M.L. Shaw & Co. under no circumstances could get transformed as a proprietary concern with the defendant as its sole proprietor.
50. Accordingly, I hold that the firm M.L. Shaw & Co. had dissolved on the death of Samarendrajit Shaw and the assets thereof are liable to be disbursed among the plaintiff Nos. 1 and 2 and the defendant in their respective shares, so far as share of Samarendrajit Shaw in the said partnership is concerned.
51. I further hold that the liquor licence and the tenancy would not constitute part of the assets of M.L. Shaw & Co. Rule 209 of the Bengal Excise Rules, lays down a procedure as regards transfer of licence on the death of a licensee. This is not a heritable property forming part of the estate of Samarendrajit Shaw, (since deceased). Thus, in the present case, the Collector shall be entitled to transfer the licence in favour of a representative of the deceased if applied for, in accordance with the provisions of the Bengal Excise Act, and the rules made thereunder.
52. So far as the tenancy is concerned, on the basis of evidence produced before me, I am satisfied that Dipendralal Shaw, the defendant herein had been acknowledged as a tenant by the landlady. The tenancy did not form part of M.L. Shaw & Co., the partnership firm and the ratios of decisions of the Hon'ble Supreme Court in the case of Narayanappa v. Bhaskara Krishnappa (supra) and of this Court in the cases of Dwijendra Nath v. Rabindra Nath (supra) and Chunnu Meah v. Thanda Meah (supra) cannot have any application in the tenancy of the two premises which have been described in the earlier part of this judgment. The tenancy in the present case, on the basis of evidence before me, cannot be held to have been converted into the property of the firm. There is no evidence to the effect that the tenanted premises had become the property of the firm. I do not consider it necessary to revert to the authorities cited on this point, as I am satisfied on the basis of evidence led before me that the defendant has already been recognized as a tenant by the landlady. The plaintiffs have not contested the action of the landlady in this respect. On considering these factors, I am of the opinion that the plaintiffs cannot have any right over such tenancy. The issue Nos. 7 and 8 thus stand disposed of.
53. The issue No. 9 relates to partition of the dwelling house situated at 83, Lenin Sarani. It is the admitted position that the plaintiff Nos. 1 and 2 are entitled to partition of the dwelling house. This issue, thus, is answered in the affirmative.
54. So far as the movable properties are concerned, none of the parties to the suit has proved the actual quantum of the jewellery or other movable properties left behind by either Samarendrajit Shaw or Jashoda Shaw, by leading cogent evidence. It has been submitted, however, that an inventory was made in respect thereof. The properties so listed in the inventory are liable to the partitioned in the same proportion.
55. Accordingly, I hold that the following properties are heritable and are liable to be partitioned:
(a) Dhiren's land and pond in the name of Samarendrajit Shaw in dag Nos. 3418, 3419, 3419, 3416, Hedo's land and pond in the name of Samarendrajit Shaw in dag Nos. 3289 and 3293, as specified in schedule "A" to the plaint.
(b) Dwelling House, being premises No. 83, Lenin Sarani, Calcutta-700 013.
(c) Business and assets of M.L. Shaw & Co. excluding the tenanted premises at 15, Ashutosh Mukherjee Road and 2, Rajendra Road Calcutta-700 020 and the excise licence.
(d) The property including the premises known as "Provash Kanan", situated in holding No. 234, Bhuban Chandra Bhar Road, Chandannagore, District-Hooghly.
(e) Movable properties as inventorised by the learned Receiver.
56. The share of the plaintiff Nos. 1, 2 and defendant would be one-third each, and the plaintiff No. 3 would not be entitled to any part of the estates of which partition is sought, having renounced the world and abandoned his claim over the estates of his father and mother.
57. The learned Advocates-on-record of the plaintiffs and defendant are jointly appointed as the Commissioners of Partition. They shall physically partition and allot by metes and bounds in accordance with the shares declared as above amongst the parties if possible. The Commissioners of Partition shall obtain accounts of M.L. Shaw & Co. since the date of death of Samarendrajit Shaw, and disburse the proceeds thereof, in respect of the share of Samarendrajit Shaw to the parties in their respective share.
58. The Commissioner of Partition shall return the commission after six months upon sale of existing assets and stock-in-trade of the share of Samarendrajit Shaw in the partnership firm. The Commissioner of Partition shall effect in particular valuation of the goodwill of the firm M.L. Shaw & Co. after deducting the legitimate expenses debts and also the sum already paid to the plaintiffs, and pay the two-third of the surplus sum out of the shares of Samarendrajit Shaw to the plaintiff Nos. 1 and 2, and the defendant shall retain one-third of this amount, along with the proceeds arising out of his share in the firm.
59. The temporary licence issued by the Collector of Excise in favour of the defendant shall remain operative for a period of sixteen weeks from date. In the meantime, parties shall be entitled to apply for licence from the said authority, if so advised. All other interim orders, if any shall stand vacated.
60. It has been submitted by the learned Counsels of the parties that the learned Receiver already appointed in this matter was not required to perform any effective function. By consent of parties, he shall stand discharged and no account would be required to be filed by him.
61. The remuneration of the Commissioner of Partition, at the initial stage would be 1000 gms. The Commissioner of Partition shall also be entitled to appoint valuers or Chartered Accountants as may be necessary for this purpose. The remuneration and charges for the same shall be paid by the plaintiff Nos. 1 and 2 and the defendant in equal shares, of one-third each.
64. There shall be a preliminary decree in the above terms.