Calcutta High Court
Debabrata Mondal And Anr. vs State Of West Bengal And Ors. on 21 August, 2007
Equivalent citations: AIR2008CAL13, AIR 2008 CALCUTTA 13, 2008 (1) AJHAR (NOC) 192 (CAL), 2008 AIHC NOC 119, (2007) 60 ALLINDCAS 523 (CAL)
Author: Jayanta Kumar Biswas
Bench: Jayanta Kumar Biswas
ORDER Jayanta Kumar Biswas, J.
1. The two petitioners in this writ petition dated April 15th, 2004 are aggrieved by the decision of Land Manager and Ex-officio Assistant Secretary to the Government of West Bengal, Urban Development Department dated May 26th/28th, 2003, which is:
I am directed to refer to your letter dated 29-1-2003 on the subject noted above and to inform you that the Deptt. regrets its inability to consider your prayer for mutation of the subject plot of land since the stepsons are not to be treated as legal heirs for the purpose of inheritance to the property of Step-mother.
2. By a deed dated September 11th, 1970 the State Government leased the land at plot No. 268 in AB block of sector I of the Salt Lake City to one Jyoti Chowdhury for 999 years. In the recitals of the deed it was stated that the expression 'lessee' would include Jyoti's heirs, executors, administrators, representatives and assigns. In the habendum, Clause 2(12), it was stated that on her dying intestate her heirs would hold the property jointly without having any right to have a partition thereof by meets and bounds or they would nominate one person from among their number in whom the property should vest.
3. In 1972 Jyoti married the petitioners' widowed father, Durgapada, who died on January 8th, 1991. Widowed Jyoti died issueless and intestate on July 25th, 2002. On her death the petitioners, her stepsons, claiming to be her heirs, applied to the appropriate authority of the government for mutating the records showing them as the lessees of the property. By the impugned decision their application was turned down on the ground that as stepsons they were not to be treated as Jyoti's heirs entitling them to inherit her property.
4. In my view, counsel for the petitioners is absolutely right in saying that in view of the provisions of the Hindu Succession Act, 1956, Section 15(1)(b), the petitioners were entitled to seek mutation of the records as only heirs of Jyoti's predeceased husband. Counsel for the State has referred me to Lachman Singh v. Kirpa Singh and Ors. holding that the word 'sons' used in Section 15(1)(a) does not include a stepson of a female Hindu dying intestate. That is not the case here. Here the petitioners are Jyoti's stepsons, and Jyoti died issueless and intestate.
5. Counsel for the State has further said that by a representation dated December 24th, 1991 Jyoti expressed her last desire to the government that on her death her stepsons should not get the property. He, however, does not go to the extent of saying that the representation is to be treated as a will, which it was not, as rightly said by counsel for the petitioners; and hence it has no effect in the eye of law. The provisions in Section 15(1), admittedly Sub-section (2) of Section 15 does not apply to the present case, are absolutely clear that in the absence of persons mentioned in Clause (a) thereof, and that is exactly the case here, the property of a female Hindu dying intestate shall devolve upon the heirs of her husband, i.e., upon the persons mentioned in Clause (b).
Hence there cannot be any doubt that the petitioners were entitled to claim that the property left by Jyoti would devolve on them. There should not be any dispute regarding the question whether Jyoti's heirs were to inherit the property in terms of the provisions of the lease deed. As I have already pointed out her heirs were specifically included in the recitals part and also in the habendum clause, Clause 2(12), of the operative part of the deed making the lease. In Clause 2(12) it was specifically stated that on Jyoti's dying intestate the property should devolve on her heirs.
6. A feeble argument has been made by counsel for the State that in view of Jyoti's last desire expressed in her representation dated December 24th, 1991 the property would devolve on the government by operation of the provision in Section 29 of the Hindu Succession Act, 1956. In response counsel for the petitioners has referred me to State of Punjab v. Balwant Singh and Ors. AIR 1991 SC 2301 holding that question of escheat would arise only in the absence of any heir left by the female Hindu dying intestate.
7. The property of an intestate is to escheat to the government only when the intestate left no heir qualified to succeed to his or her property, in accordance with the provisions of the Hindu Succession Act, 1956. As I have already pointed out that is not the case here. In view of the provisions in Section 15(1)(b), the petitioners are qualified to succeed to Jyoti's property, since, admittedly, she died intestate, and without leaving anyone mentioned in Section 15(1)(a). Hence, I do not see how the government can fall upon the provisions in Section 29.
8. For these reasons, I set aside the impugned decision, allow the writ petition, and order that within a fortnight from the date of communication of this order the authorities, and in particular the authority that gave the impugned decision, shall take necessary steps for mutating the records by incorporating the petitioners' names as lessees of the property, provided they comply with all necessary formalities and pay the requisite charges, if any.
9. There shall be no order for costs in the case.
Urgent certified xerox copy of this order, if applied for, shall be supplied to the parties within three days from the date of receipt of the file by the section concerned.