Calcutta High Court
Pankaj Madhogarhia vs State Of W.B. And Ors. on 4 May, 2007
Equivalent citations: 2007(4)CHN215, AIR 2007 (NOC) 2223 (CAL.)
Author: Debasish Kar Gupta
Bench: Debasish Kar Gupta
JUDGMENT Debasish Kar Gupta, J.
1. The petitioner files this writ application for a direction upon the respondent to mutate his name as lessee in respect of Plot No. 44 Block-C/D, Sector-I, Salt Lake City, Kolkata-700 064. Since a point of law is involved in this matter, this matter is taken up for final disposal. The aforesaid plot of land was allotted in favour of one Dhirendra Nath Mondal (since deceased) by executing a deed of lease dated June 9th, 1982 for 999 years by the State Government. The aforesaid Dhirendra Nath Mondal made his last Will and testament dated October 11th, 2005. The petitioner was made sole beneficiary in respect of the unexpired period of lease-hold interest in respect of the aforesaid land by virtue of the above Will. After the expiry of the aforesaid Dhirendra Nath Mondal on November 16th, 2005, the executor of his last Will and testament dated October 11th, 2005 obtained probate in respect of the above Will. Thereafter the petitioner deposited all requisite fees on February 15th, 2006 for mutation of his name in respect of the plot of land in question for the unexpired period of lease-hold interest in the above plot. Since the respondent authority was sitting tight over the matter a demand for justice dated February 7th, 2007 was submitted to the respondent No.2 by the learned Advocate for the petitioner. But the respondent authority did not pay any heed to the same. Hence, the petitioner files this writ application.
2. Appearing on behalf of the petitioner, Mr. L.C. Bihani, the learned senior Advocate submits that in view of the provisions of Sub-clause (12) of Clause 2 of the deed of lease dated June 9th, 1982 there is no bar and/or impediment to transfer the lease-hold right over the property for the unexpired period by the original lessee in favour of an stranger to the family of the original allottee. Mr. Bihani draws attention of this Court towards the decision of the State of West Bengal and Anr. v. Kailash Chandra Kapur and Ors. submits that this issue has been decided in the matter. Mr. Bihani further drawn attention of this Court towards decision of Kanta Devi Agarwal and Ors. v. State of West Bengal and Ors. 1999(1) Cal. L.T. HC 345 submits that the identical issue was decided by this Court also relying upon the aforesaid decision of the Hon'ble Supreme Court.
3. Mr. Amitava Chaudhuri, learned Advocate appearing on behalf of the State respondents submits in his usual fairness that the issue may be decided by this Court in accordance with law taking into consideration settled principles of law. Having heard the learned Counsels for the parties and after taking into consideration and materials on records I find that this is admitted position that the plot in question was allotted in favour of one Dhirendra Nath Mondal (since deceased) by virtue of a deed of lease dated June 9th, 1982 for a period of 999 years. It is also admitted position that aforesaid late Dhirendra Nath Mondal made his last Will and testament dated October 11th, 2005 and the petitioner was the sole beneficiary in respect of unexpired period of lease-hold interest in respect of the property in question by virtue of that Will. It is also admitted that the executor of the above Will obtained probate in respect of the above last Will and testament dated October 11th, 2005 of late Dhirendra Nath Mondal. It appears from Annexure 'P-4' at page 39 of this writ application that the petitioner deposited the requisite fee on February 15th, 2006 for mutation of his name in respect of the aforesaid land in question for the unexpired period of lease-hold interest on the same.
4. For proper adjudication of this provision of Sub-clause (12) of Clause 2 of the deed of lease dated June 9th, 1982 are quoted below:
If the lessee dies after having made a bequest of the lease-hold premises and the building thereon, if any, in favour of more than one person or die intestate having more than one heir, then in such case the persons to whom the lease-hold premises with the building thereon be so bequeathed or the heirs of the deceased lessee, as the case may be, shall hold the said property jointly without having any right to have a partition of the same by metes and bounds or they shall nominate one person amongst their number in whom the same shall vest.
5. From the above provision it appears that there is no restrictive covenant in this lease to bequeath in favour of a stranger. So there is no bar and/or impediment to mutate the name of the petitioner by the respondent authority in respect of the land in question.
6. I fully agree with Mr. L.C. Bihani, learned Counsel appearing for the petitioner that this issue has been settled in the decision of the State of West Bengal and Anr. v. Kailash Chandra Kapur and Ors. (supra), the relevant portions of the above decisions are quoted below:
In view of the above-settled legal position, the question is whether the bequest made by Mr. Mullick in favour of the respondent is valid in law and whether the Governor is bound to recognize him. It is seen that Clauses (7), (8) and (12) are independent and each deals with separate situation. Clause (7) prohibits sub-lease of the demised land or the building erected thereon without prior consent in writing of the Government. Similarly, Clause (8) deals with transfer of the demised premises or the building erected thereon without prior permission in writing of the Government. Thereunder, the restricted covenants have been incorporated by granting or refusing to grant permission with right of pre-emption. Similarly, Clause (12) deals with the case of lessee dying after executing a Will. Thereunder, there is no such restrictive covenant contained for bequeathed in favour of a stranger. The word "person" has not been expressly specified whether it relates to the heirs of the lessee. On the other hand, it postulates that if the bequest is in favour of more than one person, then such persons to whom the lease-hold right has been bequeathed or the heirs of the deceased lessee, as the case may be, shall hold the said property jointly without having any right to have a partition of the same and one among them should alone be answerable to and the Government would recognize only one such person. In the light of the language used therein, it is difficult to accept the contention of Shri V.R. Reddy, that the word "person" should be construed with reference to the heirs or bequest should be considered to be a transfer. Transfer connotes, normally, between two living persons during life; Will takes effect after demise of the testator and transfer in that perspective becomes incongruous. Though, as indicated earlier, the assignment may be prohibited and the Government intended to be so, a bequest in favour of a stranger by way of testamentary disposition does not appear to be intended, in view of the permissive language used in Clause (12) of the covenants. We find no express prohibition as at present under the terms of the lease. Unless the Government amends the rules or imposes appropriate restrictive covenants prohibiting the bequest in favour of the strangers or by enacting appropriate law, there would be no statutory power to impose such restrictions prohibiting such bequest in favour of the strangers. It is seen that the object of assignment of the Government land in favour of the lessee is to provide him right to residence. If any such transfer is made contrary to the policy, obviously, it would be defeating the public purpose. But it would be open to the Government to regulate by appropriate covenants in the lease deed or appropriate statutory order as per law or to make a law in this behalf. But so long as that is not done and in the light of the permissive language used in Clause (12) of the lease deed, it cannot be said that the bequest in favour of strangers inducting a stranger into the demised premises or the building erected thereon is not governed by the provisions of the regulation or that prior permission should be required in that behalf. However, the stranger legatee should be bound by all the covenants or any new covenants or statutory base so as to bind all the existing lessees.
7. In view of the aforesaid settled principles of law I direct the respondent authority to mutate the name of the petitioner is respect of the plot in question being Plot No. 44, Block C/D, Sector-I, Salt Lake City Kolkata -700 064 on the strength of the last Will and testament of late Dhirendra Nath Mondal dated October 11th, 2005 for unexpired period of lease-hold interest within a period of eight weeks from the date of communication of this order.
8. Thus, the writ application is disposed of. However, there shall be no order as to costs.
Urgent certified xerox copy of this order, if applied for, shall be supplied to the parties.