Calcutta High Court (Appellete Side)
1521/2011 on 10 August, 2011
Author: Dipankar Datta
Bench: Dipankar Datta
1 10.8.2011
C.O. 1521 of 2011 Mr. Probal Mukherjee, Advocate Mr. Rajdeep Bhattacharya, Advocate ..for the petitioner Mr. Kaushik Dey, Advocate .. for the opposite parties The learned Additional District Judge, 6th Court, Alipore, 24 Parganas (South) by judgment and order dated March 16, 2011 has dismissed Misc. Appeal No.362/09 filed by the plaintiff (the petitioner herein), which was directed against order dated July 13, 2009 passed by the learned Civil Judge (Junior Division), 3rd Court, Alipore. By the order under appeal, the learned trial Judge had refused to pass ex-parte ad-interim order of injunction and had directed issuance of notice upon the defendants (the opposite parties herein) to show cause why the prayer for temporary injunction made by the plaintiff shall not be allowed.
2In this revisional application dated May 6, 2011, the plaintiff has challenged propriety of the orders passed by the trial Court and the lower appellate Court.
The plaintiff is the son of the opposite party no.1 and the brother of the opposite party no.2. He instituted Title Suit No.2210 of 2009 in the Court of the trial Judge seeking, inter alia, declaration of his right, title and interest in respect of the property in the suit as well as for permanent injunction restraining the defendant no.1 from taking possession of a portion of the suit property for the purpose of inducting a tenant/licensee and/or to collect rent as well as interfering with and obstructing the plaintiff in peaceful enjoyment thereof.
The suit property originally belonged to Sudhir Kumar Bose (since deceased), being the father of the plaintiff and the opposite party no.2 and the husband of the opposite party no.1. The said Sudhir Kumar Bose acquired right, title and interest in respect of the suit property by virtue of a deed of gift executed in his favour by his father Bhupendra Nath Bose (since deceased). 3
The said Sudhir Kumar Bose, prior to execution of the deed of gift as aforesaid, had executed a will dated October 15, 1972, whereby the suit property was bequeathed in favour of the plaintiff. The terms and conditions of the will were, inter alia, that after the death of the testator, the opposite party no.1 would have life interest in the property and would also be entitled to widow pension; that the opposite party no.1 would look after and maintain the suit property till such time the plaintiff attains majority; and that out of collected rent, family expenses as well as property tax would be met. Also, it was stipulated that whatever is standing to the credit of the testator in a nationalised bank would be spent for family expenses as well as for education of the plaintiff and the opposite party no.2. The testator appointed his brother-in-law as the executor of the will.
Probate of the will was granted on January 12, 1996, by the competent court of law after the plaintiff attained majority. He has been residing in the suit property along with his family. A portion of the suit property is also being occupied by the opposite party no.1.
4
Disputes and differences arose between the plaintiff and the opposite party no.1 in respect of induction of tenant in the suit property, leading to institution of the suit. As has been noted above, the trial Court and the lower appellate Court have declined the prayer for ad-interim temporary injunction made by the plaintiff.
Mr. Mukherjee, learned advocate appearing in support of this application contended that the opposite party no.1 has only life interest in the suit property and in terms of the will does not have any right to induct a tenant. He further contended that the opposite party no.1 has been receiving Rs.4,500/- towards pension and Rs.2,000/- from the plaintiff, who has been paying such amount in compliance with an order passed in proceedings initiated against him under the Protection of Women from Domestic Violence Act. According to him, Rs.6,500/- is sufficient and adequate for the maintenance and support of the opposite party no.1 and, therefore, there can be no necessity on her part to induct a tenant in the suit property for collection of rent, to which she is otherwise not entitled in terms of the will. 5
Mr. Mukherjee further contended that in the event Rs. 6,500/- was not considered by the opposite party no.1 to be sufficient and adequate for her maintenance and support, the plaintiff being the owner of the suit property may be allowed to induct a tenant on the specific undertaking that the entire amount of rent that might be fixed and collected by him, less the proportionate amount of property tax that would be required to be spent, would be made over to the opposite party no.1. It was his specific submission that in the event the opposite party no.1 is allowed to induct a tenant and after some time the opposite party no.1 passes away, complications would arise and to obviate the same the opposite party no.1 may be directed to agree to the suggestion. In this connection, he further submitted that undertaking of the plaintiff to the effect that the sum of money to which the opposite party no.1 would be entitled after defraying expenses towards property tax would be deposited in the bank account of the opposite party no.1 through electronic clearing service be recorded and urged the Court to pass necessary orders in this behalf.
6
The application was heard by this Court from time to time. Hearing was adjourned to enable Mr. Dey, learned advocate for the opposite parties to obtain instructions as to whether the opposite party no.1 is agreeable to accept the proposal of the plaintiff or not. After several adjournments were granted, Mr. Dey submitted before the Court that having regard to the past conduct of the plaintiff, the opposite party no.1 has no faith and trust in him and, therefore, the application ought to be decided on merits.
Mr. Dey contended that it is one of the specific terms of the will that the rent would be collected by the opposite party no.1. According to him, this condition implies that the opposite party no.1 has the right to induct a tenant and, therefore, the plaintiff cannot seek any order from the Court allowing him to induct a tenant, since that would run contrary to the will of the testator.
It was thereafter contended that the suit property was all along tenanted and it was the opposite party no.1 who used to induct the tenants; therefore, there is no reason for the plaintiff to carry an impression that 7 induction of a tenant this time would result in complications.
Mr. Dey next contended that the will was executed on September 5, 1972 whereas the gift deed by virtue whereof the said Sudhir Kumar Bose acquired the suit property was executed on October 13, 1972. Provisions of Section 22 of the Hindu Adoptions and Maintenance Act, 1956 were referred to in this connection in support of the plea that a duty is cast on the plaintiff to maintain the opposite party no.1, since she was one of the dependants of the said Sudhir Kumar Bose whose estate devolved on the plaintiff by testamentary succession.
It was also contended that permitting the opposite party no.1 to induct a tenant would not run contrary to the provisions of the West Bengal Premises Tenancy Act, 1997, for, in terms thereof, the landlord need not be the owner.
Lastly, it was assiduously contended that the subordinate Courts had rejected the prayer for ad- interim injunction and since the temporary injunction application was pending before the trial Court, the plaintiff ought to be relegated to the trial Court to seek injunction restraining the opposite party no.1 from 8 inducting a tenant. Elaborating on this point, he contended that the subordinate courts had not acted beyond the bounds of their authority or in flagrant abuse of the fundamental principles of law or in a perverse manner and, therefore, this Court, exercising power under Article 227 of the Constitution, ought not to disturb the discretion exercised while declining the prayer for ad-interim injunction.
He, accordingly, prayed for dismissal of the revisional application.
In reply, Mr. Mukherjee submitted that although right of the opposite party no.1 to collect the rent is not disputed, the title of the plaintiff in respect of the suit property has also not been disputed by the opposite party no.1 and, therefore, the plaintiff is entitled to deny any one the right to induct a tenant in his property on the principle that a lawful owner cannot be denuded of his right to enter into a contract in respect of his own property. He hastened to add that as per conditions of the will, the opposite party no.1 would definitely be entitled to reap the fruits of such induction and a pragmatic approach ought to be adopted by the Court for protecting the interest of both the parties and from 9 preventing miscarriage of justice, which has ensued as a result of the orders of the subordinate Courts.
This Court has heard learned advocates for the parties and perused the orders passed by the trial Court and the lower appellate Court while refusing ad-interim injunction. The trial Court expressed that in view of the will of the father of the plaintiff, he "has no prima facie case to go for trial". The learned Judge of the lower appellate Court did not support such finding of the trial Court and proceeded to consider the prayer of the plaintiff on merits. The learned Judge was of the view that the true intention of the maker of the will was to be found from the terms of the will, which required interpretation. The learned Judge was further of the view that the right of the opposite party no.1 to collect rent, on consideration of the terms and conditions of the will, would play an important role for determining whether the injunction as prayed for ought to be granted or not. The finding of the trial Court that no such urgency was involved calling for an ex-parte order of injunction was accepted and consequently the appeal was dismissed with a request to the trial Court to dispose of the 10 injunction application as early as possible without being influenced by any of the observations made therein.
This Court had requested the learned advocates for the parties to persuade them to arrive at a workable solution since it is not befitting for a son and his mother to be involved in litigation, particularly when they belong to a respectable family. However, unfortunately, no such solution could be reached for the opposite party no.1 is unable to repose trust and faith in her son. An apprehension has been expressed that in the event the plaintiff stops crediting her bank account with the rent that is collected from the tenant, it would result in immense prejudice and hardship to her.
It is rather unfortunate that the situation has come to such a passe that a mother is unable to repose trust and faith in her son whom she had carried in her womb for 9 (nine) months and the son is also reluctant to let her induct a tenant citing future complications. The Court cannot remain a mute spectator and refuse to interfere in such a situation on technicalities. While the wish of the testator has to be respected by all means, the right that the plaintiff derived once probate of the will was granted cannot also be overlooked. The will is silent 11 as to who is entitled to induct a tenant. It was executed at a time when the plaintiff was a minor. It is, therefore, obvious that it could not have been the will of the testator that the plaintiff would have the right to induct a tenant. What the will ordained is that right to collect rent would remain with the opposite party no.1 and necessary expenses would be defrayed by her out of such rent. A reasonable construction of the terms of the will leads one to the conclusion that till such time the plaintiff attained majority, it is an implied term of the will that the opposite party no.1 would have the right to induct a tenant. This Court agrees with the submission of Mr. Dey in this respect, but at the same time, once the plaintiff attained majority and probate of the will was also granted whereby he acquired right, title and interest in respect of the suit property, could it be said that the right to induct a tenant still continued to be exercisable by the opposite party no.1? The answer cannot but be in the negative.
This Court considers it necessary, in the interest of justice, to interfere since it is of the view that this is a peculiar case, which if allowed to be dragged on, would give rise to further complications. Progress of the suit in 12 the trial Court would result in unnecessary harassment and inconvenience for the octogenarian opposite party no.1, which is not at all desirable.
Bearing in mind the apprehension of the opposite party no.1, i.e. the plaintiff may not provide funds necessary for her support and to maintain her and may even go to the extent of stopping deposit of rent, even if ordered by this Court, necessary directions are called for to ensure that the apprehension of the opposite party no.1 does take a turn for the worse and result in reality.
It is, therefore, directed as follows:
(i) Having regard to the location of the suit property (it is in South Kolkata near Rabindra Sarobar), the portion wherein a tenant is intended to be inducted could reasonably be expected to fetch a rent of approximately Rs.5,000/- per month. The plaintiff shall, till such time a tenant is inducted in the suit property, make arrangements for credit of a sum of Rs.5,000/- each month in the bank account of the opposite party no.1 through electronic clearing service. The first of such credit shall 13 be made by August 16, 2011 and by the 16th of each succeeding month till such time as indicated hereafter;
(ii) Once an agreement is reached between the plaintiff and the tenant, the former shall make over a copy of such agreement to the opposite party no.1. In the event the rent payable by such tenant is either less or more than Rs.5,000/-, the opposite party no.1 shall be entitled to the equivalent sum of rent as may be agreed upon by and between the plaintiff and such tenant less proportionate amount towards property tax, and the resultant sum shall be credited to the bank account of the opposite party no.1 by the 7th of each month in the manner as indicated above;
(iii) The opposite party no.1 shall provide the details of her bank account to the plaintiff by the 11th of this month for facilitating credit of the aforesaid sum of Rs.5,000/- by August 16, 2011 and the sums for the subsequent months;14
(iv) Till June 30, 2012 or until further orders, whichever is earlier, the suit instituted by the plaintiff shall not proceed.
The revisional application shall be listed in June, 2012 once again for reporting developments and for obtaining further orders.
Liberty of the parties to mention the revisional application, if the necessity for obtaining any further order as the circumstances might warrant is, however, reserved.
Urgent photostat certified copy of this order, if applied for, may be furnished to the applicant at an early date.
(DIPANKAR DATTA, J.)