Calcutta High Court
A Bequest. He Has vs Unknown on 10 December, 2010
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
1
AORC No. 1 of 2010
AORC No. 2 of 2010
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
IN THE GOODS OF:
SHUBH KARAN JALAN & ANANDI DEVI JALAN
For the Petitioner in AORC 1/10
& the Respondent in AORC 2/10: Mr S.P. Sarkar, Sr Adv.,
Mr D.N. Sharma, Adv., Ms Debosmita Nandy, Adv.
For the Petitioner in AORC 2/10 & the Respondent in AORC 1/10: Mr S.N. Mookerjee, Sr Adv., Mr Joy Saha, Adv., Mr Joyjit Ganguly, Adv., Mr Sayantan Bose, Adv., Mr Jai Surana, Adv., Mr Aasish Chowdhury, Adv.
Hearing concluded on: December 8, 2010 BEFORE The Hon'ble Justice SANJIB BANERJEE Date: December 10, 2010 SANJIB BANERJEE, J. : -
The stand taken by the executor conjures up visions of a forlorn figure clasping the staff of justice on a burning deck of righteousness. This apparently disinterested executor has travelled from Alipore to New Delhi with a brief stop- over in this Court in his altruistic endeavour to uphold the cause of law. He is 2 indignant at the attempt by a beneficiary under the Will to dislodge him from his high office of executor that, he believes, confers on him the authority to undo an act of illegality committed by the testator in the matter of a bequest. He has carried an independent cause to vindicate the stand that he has taken on a question of law and steadfastly holds his ground.
The executor is a son of the executants of a joint and mutual Will of July 30, 2001. The subject-matter the present proceedings is the bequest therein relating to the tenancy rights in respect of the north-west ground floor flat at premises no. 10, Lower Rawdon Street, Calcutta - 700 020 which the father of the executor held as a monthly tenant under a trust. The Will stipulates that such tenancy is to go to a grandson of the testators through another son. Probate of the joint and mutual Will was granted by this Court on September 6, 2007.
The grandson legatee complains in AORC No. 1 of 2010 of the insolent refusal by his uncle, the executor, to implement the relevant provision of the Will. This legatee has prayed for removal of the executor and even for the impounding of the legacy to the executor and the executor's share in the residuary bequest. The Will is clear as to the relevant bequest. Clause 4.3 thereof instructs as follows:
"4.3. The tenancy right in the said Flat at No. 10 Lower Rawdon Street, Calcutta, shall stand bequeathed to our grand-son Pramod Kumar Jalan, son of our son Shree Gopal Jalan, subject to the condition that in case our younger son Om Prakash Jalan and his family consisting of his wife, son, daughter-in-law, daughter or his any other relative etc., who are presently residing at Hyderabad or elsewhere come to visit Calcutta on business or for any other work then they shall be entitled to stay in the said Flat without any hindrance or obstruction on the part of Pramod Kumar Jalan or any other person/persons occupying the said Flat."3
The grandson says that despite demands made by him on the executor, the latter has refused to give assent to such legacy in favour of the rightful legatee or make over possession of the said flat to the legatee. The grandson claims that the executor in his other role as one of the trustees of the landlord trust is seeking to surrender the tenancy to the landlord with a view to frustrate the bequest.
The grandson instituted a suit before the Alipore Court in 2009 against the executor and the trustees of the landlord trust seeking a declaration that he was entitled to the tenancy rights in respect of the flat; perpetual injunction restraining the defendants and their agents from effecting surrender of the said flat to the landlord or preventing the plaintiff from taking possession thereof; a further injunction restraining the second, third and fourth defendants in that suit from acting in a manner inconsistent with the plaintiff's entitlement to the tenancy right; a decree for recovery of possession from the landlord trust in the event possession of the flat had already been made over to it; a decree for delivery up of the instruments which may have been prepared for surrendering the tenancy in respect of the flat in favour of the trust; and, the other usual reliefs. The grandson emphasises that the executor was impleaded in the Alipore suit twice over; as the first defendant in his capacity as executor and as the fourth defendant as one of the trustees of the landlord trust.
Apart from the legal question that the grandson raises - of the obligation of an executor to give effect to the wishes of the testators unless impossible - he insists that the conduct of the executor has been so reprehensible that it would merit his disqualification from further continuing in that office. Towards such end, the grandson has relied on the executor's written statement in the Alipore suit, filed on behalf of both the first and fourth defendants therein, where the executor has claimed that he was "bound to deliver possession of the said flat to the said Trust" (paragraph XVI) and that he had "made over vacant possession of 4 the said ground flood flat, which is the suit property, to the said Trust"
(paragraph XVII). The grandson asserts that not only is such stand of the executor of having allegedly made over possession of the flat to the landlord belied by the contrary statements made in the written statements filed by the two other trustees of the landlord trust, the subsequent stand of the executor as recorded in an order passed by this Court was that the tenancy had not been surrendered.
On an interlocutory application in the Alipore suit an order was made on May 4, 2009 directing the parties to maintain status quo in respect of the nature, character and possession of the suit property for certain duration. The legatee says that the interim order has subsequently been extended and is subsisting. The executor applied in the Alipore suit, on behalf of the first and fourth defendants therein, for permission to appoint security guards at the suit premises to protect his possession thereof. Such application was made under Section 151 of the Code of Civil Procedure. Upon the dismissal of the application, the executor carried the order dated February 8, 2010 to this Court by way of a revisional petition under Article 227 of the Constitution of India. Such effort of the executor to have security guards posted at the flat to protect his possession failed in this Court and a special leave petition from the resultant order stood dismissed on May 4, 2010. The revisional order of April 21, 2010 directed the executor to make over possession of the flat to the grandson legatee as the beneficiary in respect thereof under the Will and directed the beneficiary to hold the same as special officer for protecting and preserving the possession of the flat. Such direction in the revisional order has apparently not been complied with by the executor, which has prompted the legatee to institute contempt proceedings. The executor has applied for review or modification or recalling of the revisional order of April 21, 2010, but the legatee complains that no 5 meaningful steps have been taken to prosecute what is described as a misconceived application.
The sheet-anchor of the executor's stand is a legal opinion obtained from counsel that advocates that the husband in the husband-wife duo of executants of the joint and mutual Will was not entitled to bequeath his tenancy right in the flat. In further justification on facts as to the stand adopted by the executor, it is submitted that at a meeting of the trust held on August 22, 2003, whereat two trustees were present and the to-be executor was invited, the trust resolved first, to induct the to-be executor as a trustee and later, to stipulate that the testator would be entitled to use the flat till his death and for a month thereafter till his rites and religious functions were completed.
The executor says that since the provisions of the West Bengal Premises Tenancy Act prohibit the transfer or assignment of any tenancy and further since he was a party to the resolution whereat the tenure of the tenancy was fixed by the landlord, it would be illegal for him to give effect to the relevant bequest as such bequest has become impossible to be effected within the meaning of Section 87 of Indian Succession Act, 1925.
The grandson legatee has referred to a judgment reported at (1981) 2 MLJ 158 (P.B. Srinivasan v. T.P.S. Varadhan) for the proposition that if an executor puts forth a right conflicting with the rights of the beneficiaries under the Will, the court can remove such executor in exercise of the authority available under Section 301 of the Act. At paragraphs 6 to 8 of the report, the ambivalent stand taken by the executor in that case was noticed. The executor was removed.6
The grandson legatee says that the point canvassed by the executor that in view of the bar on assignment or transfer of tenancy under Section 5(6) of the West Bengal Premises Act, 1997 the bequest is void, is absurd. The beneficiary says that as to whether a particular prohibition in any statutory provision amounts to a complete bar or as to whether an act in derogation of any statutory prohibition leads to any consequence specified in the statute has to be assessed. Reliance is placed, in such context, on a judgment reported at (1956) 3 All ER 683 (ST. John Shipping Corporation v. Joseph Rank Ltd) for the principle that the dominant purpose of the provision has to be ascertained to assess whether an apparent prohibition would render any act in contravention thereof illegal in the sense it being void or whether the act in contravention of the prohibition would invite some specified consequence.
The grandson legatee has relied on a judgment reported at 85 CWN 594 (Debabrata Mukherjee v. Kalyan Kumar Roy) for the recognition therein that notwithstanding the prohibition in the West Bengal Premises Tenancy Act, 1956 on the sub-letting of the tenanted premises or any part thereof by the tenant, it did not make sub-letting illegal. The following passage from paragraph 20 of the report is instructive:
"20. ...
Landlords under section 14(2) were prohibited from claiming, demanding or receiving any premium or other considerations for giving his consent to the sub-letting. It is noted that these provisions are nearly similar to those of section (2) of section 11 of the West Bengal Premises (Rent Control) Act, 1948. I have already referred to the decision of P. B. Mukherjee, J. in Monoranjan Bhattacharya v. Satya Charan Law (supra) which held that the said provision did not make sub-letting illegal but only a penal provision preventing the person who had committed breach by such provisions from claiming the protection of the benefits conferred under section 11 of the Rent Control Act, 1940. In my view, similar interpretation should be put upon section 14 (1) of the West Bengal Premises Tenancy Act. Section 14 (1) has not expressly laid down that a 7 sub-letting in violation of section 14 (1) shall create no legal relationship as between him and his subtenant. The effect of section 14 (1) is that a sub- letting after the commencement of the Act without previous consent in writing of the landlord is not binding upon the superior landlord. The superior landlord has a right under section 13 (1) (a) to recover possession by evicting his tenant who has sub-let, transferred or assigned in whole or any part of the premises held by him. The sub-section (3) of section 13 has further laid down that except as provided in sub-section (2) and (4) a decree or order for delivery of possession of the premises shall be binding on every sub-tenant. Under section 13 (2) only those sub-tenants who have given notices under section 16 are required to be made parties to any suit or proceeding for recovery of possession by the landlord. When a sub- tenancy is created after the commencement of the 1956 Act without prior consent of the landlord, the landlord is not required to make such a sub- tenant a defendant in a suit for recovery of possession filed against his tenant and an ejectment decree passed against the tenant of the first degree would be binding such a sub-tenant. In other words, such a subtenant has no independent legal status and is not entitled to the benefits of protection against eviction. A tenant who sublets in violation of section 14 (1) of the West Bengal Premises Tenancy Act is also liable to be punished with fine under section 30(3) of the West Bengal Premises Tenancy Act."
The executor suggests that if the statute prohibits a particular thing, the contravention of such provision would render the commission of the thing a nullity. He refers to the obligations of a tenant under the 1997 Act as recognised in Section 5 thereof:
"5. Obligations of tenant. -(1) Every tenant shall pay rent to the landlord or his authorised agent within the prescribed period.
(2) Every tenant shall use the premises for the purpose for which it was let out to him.
(3) Every tenant shall allow the landlord or his authorised agent to enter upon the premises and inspect the condition thereof after the service of a notice on him by the landlord or his authorised agent in this behalf.
(4) No tenant shall make any addition to, or alteration in, the premises without the written consent of the landlord.8
(5) No tenant shall sublet the premises without consent of the landlord in writing.
(6) No tenant shall, without the previous consent in writing of the landlord, transfer or assign his right in the tenancy or any part thereof.
(7) Every tenant shall pay the charges relating to the maintenance and amenities of the premises at the rate of ten per cent of the fair rent or agreed rent, as the case may be.
(8) Every tenant shall pay his share of municipal tax as an occupier of the premises in accordance with the provisions of the Kolkata Municipal Corporation Act, 1980 (West Bengal Act LIX of 1980) or the West Bengal Municipal Act, 1993 (West Bengal Act XXII of 1993).
Explanation.-For the purposes of this sub-section, the term 'occupier' means an occupier as defined in clause (60) of section 2 of the Kolkata Municipal Corporation Act, 1980 or clause (43) of section 2 of the West Bengal Municipal Act 1993."
In support of the argument, the executor first refers to a judgment reported at (1998) 7 SCC 294 (Sangappa Kalyanappa Bangi v. Land Tribunal, Jamkhandi). The appellant before the Supreme Court (represented in the Supreme Court by his legal representatives) had made a claim asserting occupancy rights in respect of the land in question. During the pendency of the relevant application under the Karnataka Land Reforms Act, 1961, he made a Will bequeathing his tenancy rights in the land in favour of a person who would not have been an heir in intestacy upon his death. Such applicant died before the application could be considered. The land tribunal examined the question whether the right to tenancy could have been the subject-matter of a bequest under a Will. On a construction of Section 21 of the relevant Act (which is not quoted in the report), the Supreme Court held that the provision did not permit any sub-division or sub-letting of the land by a tenant or the assignment of any interest thereunder. The court concluded that assignment of any interest in the tenanted land was invalid under the provisions of the relevant statute and a device or a bequest under a Will could not be said to fall outside the scope of the enactment; a 9 bequest under a Will would amount to an assignment and fall foul of the relevant provision.
The next judgment cited by the executor is reported at AIR 2009 Cal 41 (Asansol Durgapur Development Authority v. Tapas Banerjee). In the context of the West Bengal Government Land (Regulation of Transfer) Act, 1993, a Division Bench, drawing inspiration from the judgment in Sangappa Kalyanappa Bangi, held at paragraph 22 of the report that a device or a bequest under a Will amounted to assignment of the interest which was prohibited both by the deed of lease in that case and by the provisions of the Act of 1993. The grandson legatee says that paragraph 23 of the report refers to a bequest under a Will being hit by Section 2(1) of the relevant Act and also refers to the object and purpose of Section 2(1) of the Act, though Section 2(1) of the said Act only defines the word "relation."
In the judgment reported at 79 CWN 632 (Satyabrata Banerjee v. Ushaprobha Sarkar) placed by the executor it was held that a bequest by a Will amounted to transfer within the meaning of Section 13(1)(a) of the 1956 Act and also amounted to assignment. The matter in issue was as to whether a notice to quit issued by the landlord to the heirs of the deceased tenant and the executors appointed by the Will which had not been probated at the time of the notice, was valid. It was in such circumstances that a Division Bench noticed the object and purpose of the legislation being to protect tenants from eviction by clandestine means. The court expressed the view that the word "transfer" in the relevant provision had been used in the wider connotation and embraced a bequest by a Will.
The executor also refers to the celebrated judgment of Mannalal Khetan v. Kedar Nath Khetan reported at (1977) 2 SCC 424. The Supreme Court was 10 concerned with the implication of the word "shall" in the expression "shall not register" in Section 108 of the Companies Act, 1956 to assess whether the "shall" was mandatory or directory. The court held that the negative form of the language in the provision and the penalty for acting in derogation thereof were indicative of the legislative intent that the command was mandatory.
In his opening submission, the executor asserted that the tenancy right of the testator had vested in the executor by operation of law and the executor, both by reason of the mandate in Section 5(6) of the 1997 Act and on account of his being aware of the extent of the right by virtue of his presence at the relevant meeting of the landlord trust, was duty-bound to surrender the tenancy to the landlord. Towards the later stage of the hearing, the executor has claimed that the tenancy did not vest in him at all as it was incapable of vesting by reason of the bar under the 1997 Act. This contradiction is not of much legal consequence since the interpretation of the provision will not depend on the stand taken by a party; but it may be of some relevance in assessing the conduct of the executor. It may be remembered that the executor had suggested in the written statement that the tenancy had been surrendered in favour of the landlord, another stand that he later resiled from as is recorded in the revisional order. The opinion on which the executor relies speaks of the executor's obligation to deliver possession of the premises to the landlord. If it is the final stand of the executor that the tenancy did not vest in him by operation of law, it is difficult to envisage that he would be in a position to deliver possession of the premises to the landlord.
The impact of a statutory provision cannot be seen in isolation of the other provisions of the statute. Rent Control Acts were introduced in many States almost simultaneously with Land Reforms Acts within a few years after Independence. The stringent provisions in the Rent Control Acts were diluted in many States in the 1990s, in the sense that what was once heavily loaded in favour of tenants was sought to be balanced by giving certain additional benefits 11 to landlords. The purpose of Rent Control Acts was to regulate certain incidents of tenancy and to ensure that the largely less-privileged tenants were not rendered homeless (the statutes were not restricted to residential premises) by the whims of the comparably better-off landlords. The 1997 Act, in its statement of objects and reasons, recognises that the interests of both classes were sought to be better balanced on the basis of recommendations and reports.
While Section 5 of the 1997 Act lays down certain obligations of tenants covered thereby, Section 6 of the Act provides for protection of tenants against eviction. Section 6 limits the instances where a landlord may seek and obtain recovery of possession of the tenanted premises. Section 6(1) of the Act enumerates the grounds and the wording of such sub-section is that the eviction of tenants cannot be obtained on any ground not falling within those spelt out therein. The grounds are the exceptions to the general rule in the sub-section that no order or decree for the recovery of possession of any premises shall be made in favour of the landlord against the tenant. The first clause recognises sub-letting or assignment or otherwise parting with possession of the whole or any part of the premises without obtaining the written consent of the landlord as a ground for obtaining eviction of the tenant.
What comes through from the relevant provisions of the 1997 Act is that upon a tenant acting in breach of any obligation stipulated in Section 5 thereof, it entitles the landlord to seek and obtain recovery of the possession of the relevant premises. The central purpose of the 1997 Act is to protect tenants from eviction. The immunity that the Act affords to tenants is not extended to such tenants who act in breach of the obligations imposed on tenants by the statute. The consequence of the breach by a tenant of his statutory obligation is the removal of the protective statutory umbrella against his eviction. It is possible that a tenant under the 1997 Act acts in breach of any of the statutory obligations, but the landlord does not take advantage thereof. The intent of the stipulations in 12 Section 5 of the 1997 Act is not to make the act of the tenant in contravention thereof void or illegal; the purpose is to bind the tenant to some rules for the tenant to be entitled to the continued protection against eviction under the Act.
The interest in a tenancy is capable of being bequeathed and notwithstanding Section 5(6) of the 1997 Act the bequest is not void. The consequence of such bequest is that it exposes the beneficiary to likely eviction.
An executor of a Will is duty-bound to honour the wishes of the testator to the extent possible. This executor is obliged to give effect to the relevant bequest without unduly concerning himself with the consequence thereof. If the interest of an executor is in conflict with his duties as an executor, he has to keep the interest at bay and facilitate the bequest. On his failure to do so, the executor makes him liable to be removed from the position under Section 301 of the Succession Act. The personal interest of an executor cannot influence him in the discharge of his obligation under the Will. This mandate of law appears to have been lost on the executor. There is no prohibition in law for the executor to fulfil the relevant desire of the testator as embodied in the Will.
Though the conduct of the executor would warrant his immediate removal, AORC No. 1 of 2010 and AORC No. 2 of 2010 are disposed of by directing the executor to carry out the mandate of the testator in respect of the relevant bequest within a period of four weeks from date. In default, it will be open to the grandson legatee to seek his immediate removal and repeat the other prayers found in the legatee's petition. For the intransigence shown by him, the executor will pay costs assessed at 1000 GM to the grandson legatee.
Urgent certified photocopies of this judgment, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
13(Sanjib Banerjee, J.)