Calcutta High Court (Appellete Side)
Amit Sen & Ors vs Asish Roy And Ors on 28 April, 2025
28.04.2025
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Ct. no. 29
P.A
SA 325 of 2009
With
IA No. CAN 7 of 2022
IA No. CAN 8 of 2022
Amit Sen & Ors.
Vs.
Asish Roy and Ors.
Mr. Probal Kumar Mukherjee
Ms. Shebatee Datta
........for the Petitioner
Mr. Mr. Aniruddha Chatterjee
Mr. A.S. Tarafdar
Mr. Iftikar Munshi
........for the Petitioner
Being aggrieved by and dissatisfied with
the judgment and decree dated 30th August, 2006
passed by learned 3rd Additional Civil Judge
(Junior Division) Alipore in Title Suit no. 1 of 2005
the opposite parties herein preferred Title Appeal
no. 23 of 2007 before learned Civil judge (Senior
Division) 5th court, Alipore, who by the impugned
judgment and decree dated January, 14, 2009 has
allowed the appeal on contest, thereby set aside the
judgment and decree passed by the trial court.
The brief background of the present case
is that plaintiff/appellant herein claiming
themselves as sole land lords filed the aforesaid
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ejectment suit against the defendants/respondents
herein, on the ground of reasonable requirement and as per plaint case the original owner who is the predecessor of the plaintiff, Sri Manmatha Nath Sen during his lifetime executed a trust deed on 30.01.1956. Said settlor of the trust named his wife Smt. Pramila Bala Sen as the trustee and clause 7 of the said trust deed states that Rs. 100/- would be drawn by the said trustee Pramila Bala towards her monthly maintenance from the income of the trust properties. She was also given the right to act as a trustee to collect rent and to induct tenants in the trust property. The distribution of other portion of the income from the trust property has also been mentioned in the trust deed. As per clause 13 and 14 of the trust deed, the trust would come to an end with the death of smt. Pramila Bala and with the death of trustee, the trust properties will be vested upon his five sons as follows:
(a) Chandi charan Sen: 27 A Chakraberia Road
(b) Bibhuti Bhusan Sen: 27 B Chakraberia Road
(c) Gopal Chandra Sen: 27 C Chakraberia Road
(d) Santosh Kumar Sen: 32 D Sarat Bose Raod
(e) Deb Kishore Sen: 32E Sarat Bose According to plaint case by the said trust deed, the predecessor of the present appellant Bibhuti Bhusan Sen became absolute owner of the 3 suit premises namely 27 B Chakraberia Road where the respondents herein were inducted as tenant and against whom the plaintiff filed the aforesaid eviction suit.
The plaintiffs further case is that they are at present residing as licensee in the above mentioned 32 E Sarat Bose Road, under the owner of said premises Santosh Kishore Sen and Deb Kishore Sen. Plaintiffs further case is his family consists of himself, his wife, four sons, married daughters and two unmarried daughters and that the suit property consists of two rooms in the ground floor two rooms in the first floor and two small tiles sheded rooms in the second floor. Plaintiff requires the entire suit property for his personal use and occupation as plaintiff's licensee has already revoked the license.
Defence contention on the other hand is that though a trust deed was executed by Manmatho but the same was not acted upon and Pramila used to collect rent from the defendant not as a trustee but in her individual capacity. Upon the enactment of Hindu Succession Act w.e.f. 17.06.1956 and upon Promulgation of section 14(1) of the Hindu Succession Act. 1956, the limited interest of Pramila Bala Sen created by virtue of the trust deed, in lieu of maintenance ripened into 4 full ownership and she became the absolute owner of the property of late Manmatho nath Sen. Therefore, after the death of Pramila Bala on 09.02.1976, all her sons and daughters including the original plaintiff Bibhuti Bhusan Sen became the joint owners in respect of all the above- mentioned properties mentioned in the alleged trust deed, each having 1/8th share in all those properties. Therefore, since the plaintiff has alternative suitable accommodation, they do not reasonably require the suit property and as such plaintiff's suit for eviction is not sustainable.
The Trial court decreed the suit on the ground of reasonable requirement observing that after demise of Pramila Bala, in terms of the deed of settlement, the suit property was mutated in the name of plaintiff Bibhuti Bhusan only, as appearing from exhibit 3 to 3(f) and that the defendant having paid rent to Bibhuti Bhusan after demise of Pramila Bala and that the other properties mentioned in the trust deed are not the properties of the plaintiffs and in view of the fact that plaintiff is residing elsewhere along with his family, as licensee, plaintiff has succeeded in proving reasonableness of his requirement.
However, when the defendants preferred first appeal the appellate court reversed the 5 eviction decree upon coming to a conclusion that the trust deed conferred upon Pramila, a monthly maintenance of Rs. 100/- which is a pre-existing right and as such the limited interest conferred upon her by virtue of the trust deed being in lieu of maintenance and recognition of her pre-existing right, transformed into absolute right under section 14(1) of Hindu Succession Act and section 14(2) of the said Act has no application. Thus, Pramila bala during her life time became full owner of all the aforesaid five properties owned by her husband Manmatho Sen on and from 17.07.1956 and after her death all her legal heirs became owner of all the properties mentioned in the trust deed and therefore plaintiff failed to prove bonafideness of his requirement and as such plaintiff is not entitled to get decree as prayed for.
Being aggrieved by the said judgment passed by the first appellate court, the present second appeal has been preferred by the plaintiff/ appellant. At the time of admission of this second appeal a Division Bench of this Court vide order dated 21.08.2009 framed following substantial questions of law for adjudication
(i) Whether the learned judge of the First Appellate Court below was right in coming to the conclusion that Late Bibhuti Bhusan Sen cannot be a licensee of 32E, Sarat Bose Road and he is the co- sharer of the same and also Co-sharer of the other property left by Manmatha Sen?
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(ii) whether the learned Judge of the First Appellate Court was right in coming to the conclusion that the provisions contained in sub-section (2) of section 14 of the Hindu Succession Act, 1956 has no application in the Instant Case?
(iii) Whether the learned Judge of the First Appellate Court committed substantial error in law in not holding that the plaintiffs reasonably require the suit premises for their own use and occupation and also for the use of their family members as they have no other alternative accommodation save and except the suit premises?
On the basis of the prayer made on behalf of learned Counsel representing Respondents herein and as agreed by learned counsel for the appellant, the first two substantial questions as stated above is taken up for determination as preliminary issue. Accordingly at present I am only two consider whether with the introduction of 14(1) of Hindu Succession Act, Promila Bala i.e. mother of plaintiff became absolute owner of all the trust mentioned properties or not.
Mr. Probal Mukherjee learned Counsel appearing on behalf of appellants submits that the trust deed dated 20th January, 1956 was executed by the settor with the objectivity that upon the demise of the settlor the trustee i.e. his wife would have life estate in the trust properties and she would receive an amount of Rs. 100/- towards monthly maintenance from the income of the estate and the other income of the estate is to be distributed in the manner as prescribed in clause 7 of the trust deed. He further contended that section 7 14(2) of the Hindu Succession Act, 1956 is an exception to the rule provided under sub section (1). It clearly indicates that if a Hindu female has obtained a restricted estate, then the provisions of sub section (1) would not apply upon her. Accordingly he contended that in the present case Manmatha by executing the trust deed had categorically given life estate to the wife in respect of the trust properties and therefore, the provisions of sub section (2) of section 14 would be attracted and therefore her estate in the trust property would still be restricted, even upon the promulgation of Hindu Succession Act, 1956.
Accordingly in the present case by virtue of extinguishment of the trust, Bibhuti Bhusan became the sole owner only in respect of suit premises namely 27B Chakraberia Raod, Kolkata. He does not have any other reasonable suitable accommodation elsewhere and he is residing as licensee under his brothers, who have in the meantime revoked such license and accordingly his occupation in the licensed premises is precarious.
He further contended that Trial Court was of considered view that after demise of Pramila Bala, in terms of deed of settlement, the suit property was mutated in the name of Bibhuti Bhusan Sen only, as appearing in exhibit 3 to 3(f) 8 and the Trial Court further held that the defendant could not have objected to the nature of the settlement deed when all the beneficiaries have accepted the terms of the deed in as much as the defendant paid rent to Bibhuti Bhsuan Sen after demise of Pramila Bala.
Mr. Chatterjee learned counsel appearing on behalf of the respondent argued that said Manmatho Nath sen divested himself from the ownership for all the four premises and appointed Pramila Bala as the sole trustee to use and enjoy rental income of the property. In the trust deed it has been specifically stated that said Pramila Bala shall be entitled to Rs. 100/- per month specifically for her maintenance till her life time and after defraying all the expenses from maintenance and repair of the estate, surplus money will be distributed among the heirs. Accordingly the limited interest created in favour of Pramila by virtue of trust deed dated 30.01.1956, in lieu of maintenance, ripened and blossomed into absolute right of such female Hindu with the introduction of Hindu succession Act, 1956 w.e.f. 17.06.1956 from which date Pramila became the absolute owner of all the properties that were subject matter of trust deed and after her death all her sons and daughters became joint owners of the property 9 each having 1/8th share in the property. Therefore, plaintiff's predecessor also became co sharer of all the properties and as such plaintiff case that he is residing at premises no. 32 E Sarat Bose road as licensee under his brothers does not hold any water.
Mr. Chatterjee strenuously argued that in the facts and circumstances of the present case section 14(1) of the Hindu Successions Act 1956 would apply as said Pramila Bala was possessing the said properties in lieu of maintenance at the rate of Rs. 100/- per month, which was a pre- existing right given by said Manmatho and as such the condition precedent of section 14(1) of the said Act is fulfilled. He further contended that in a catena of judgments it has been held that the limited or life interest in an estate of a female Hindu would ripen and blossoms into absolute right of such female Hindu after coming into force of the Hindu Succession Act, 1956 on and from 17.06.1956. Accordingly Mr. Chatterjee turned down the argument made on behalf of the appellant that section 14(2) of the Act of 1956 is applicable in the present context.
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Decision Before going to further details let me first reproduce section 14 of Hindu Succession Act, 1956:-
14. Property of a female Hindu to be her absolute property.--
(1)Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.
Explanation.--In this sub-section, "property" includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.
(2)Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.
Principles regarding applicability of section 14 of the Act have been laid down in V. Tulasamma and others Vs. Sesha Reddy reported in (1977) 3 SCC 99 and para 61 which laid down the ratio states as follows:-
61. We would now like to summarise the legal conclusions which we have reached after an exhaustive considerations of the authorities mentioned above on the question of law involved in this appeal as to the interpretation of Sections 14(1) and (2) of the Act of 1956. These conclusions may be stated thus:
"(1) The Hindu female's right to maintenance is not an empty formality or an illusory claim being conceded as a matter of grace and generosity, but is a tangible right against property which flows from the spiritual relationship between the husband and the wife and is recognised and enjoined by pure Shastric Hindu law and has been strongly stressed even by the earlier Hindu jurists starting from Yajnavalkya to Manu.
Such a right may not be a right to property but it is a right against property and the husband has a personal obligation to maintain his wife and if he or the family has property, the female has the legal right to be maintained therefrom. If a charge is created for the maintenance of a female, the said right becomes a legally enforceable one. At any rate, even without a charge the claim for maintenance is doubtless a pre- 11 existing right so that any transfer declaring or recognising such a right does not confer any new title but merely endorses or confirms the pre-existing rights.
(2) Section 14(1) and the Explanation thereto have been couched in the widest possible terms and must be liberally construed in favour of the females so as to advance the object of the 1956 Act and promote the socio-economic ends sought to be achieved by this long needed legislation.
(3) Sub-section (2) of Section 14 is in the nature of a proviso and has a field of its own without interfering with the operation of Section 14(1) materially. The proviso should not be construed in a manner so as to destroy the effect of the main provision or the protection granted by Section 14(1) or in a way so as to become totally inconsistent with the main provision.
(4) Sub-section (2) of Section 14 applies to instruments, decrees, awards, gifts, etc. which create independent and new titles in favour of the females for the first time and has no application where the instrument concerned merely seeks to confirm, endorse, declare or recognise pre- existing rights. In such cases a restricted estate in favour of a female is legally permissible and Section 14(1) will not operate in this sphere. Where, however, an instrument merely declares or recognises a pre-existing right, such as a claim to maintenance or partition or share to which the female is entitled, the sub-section has absolutely no application and the female's limited interest would automatically be enlarged into an absolute one by force of Section 14(1) and the restrictions placed, if any, under the document would have to be ignored. Thus where a property is allotted or transferred to a female in lieu of maintenance or a share at partition, the instrument is taken out of the ambit of sub-section (2) and would be governed by Section 14(1) despite any restrictions placed on the powers of the transferee.
(5) The use of express terms like 'property acquired by a female Hindu at a partition', 'or in lieu of maintenance', 'or arrears of maintenance', etc. in the Explanation to Section 14(1) clearly makes sub-section (2) inapplicable to these categories which have been expressly excepted from the operation of sub- section (2).
(6) The words 'possessed by' used by the Legislature in Section 14(1) are of the widest possible amplitude and include the state of owning a property even though the owner is not in actual or physical possession of the same. Thus, where a widow gets a share in the property under a preliminary decree before or at the time when the 1956 Act had been passed but had not been given actual possession under a final decree, the property would be deemed to be possessed by her and by force of Section 14(1) she would get absolute interest in the property. It is equally well settled that the possession of the widow, however, must be under some vestige of a claim, right or title, because the section does not contemplate the possession of any rank trespasser without any right or title.
(7) That the words 'restricted estate' used in Section 14(2) are wider than limited interest as indicated in Section 14(1) and they include not only limited interest, but also any other kind of limitation that may be placed on the transferee." (emphasis Added) Now in the context of aforesaid settled proposition, of law on the question of applicability 12 of section 14(1) and (2), let me consider the present facts and circumstances, of the case in the light of aforesaid observations to adjudicate whether trust extinguished with the introduction of 1956 Act or not.
From the recital of the deed it is clear that the trust was created by the settlor keeping it in mind that there would be possibility of no peaceful co-existence in making partition of the properties left by settlor among his heirs as clearly reflected in the recital of the deed. It is further recited that trust is created for future peaceful partition of the property with a restrictive clause that the beneficiary Promila Bala under no circumstances will be entitled to alienate it to anybody nor would be entitled to create any mortgage over the said property. Section 14 is under the heading 'property of a female Hindu to be her absolute property" and sub-section (1) starts with the words "any property possessed by a female Hindu whether acquired before or after commencement of this Act" clearly pin pointed that the section refers to some property which is under the possession of a female Hindu which she has acquired. There is no quarrel with the proposition of law that possession of property by a female Hindu in such cases also include 13 constructive possession but nevertheless it confined to 'any property'.
Now from the recital of the deed it is very much clear that being appointed as trustee only right to realise all income and to retain a fixed amount of Rs. 100/- towards her monthly expresses from the said income was given to Promila. No specific property was allotted or transferred to Pramila Bala in lieu of her maintenance. It is needless to mention that the intention of the settlor must be given prime importance while interpreting the deed. As I have stated above that intention of creating trust by settler is for future partitioning of property among the trust mentioned heirs to avoid conflict among co-sharers though beneficiary/Pramila was given power to realize fixed amount of Rs. 100/- from the income of trust property for her monthly maintenance during her lifetime and details of the mode of expenditure to be made from the income of the property as mentioned in the deed clearly states that from the income derived out of trust properties at first it is to be used for the payment of municipal tax and other ongoing maintenance cost of the property and so long Pramila will alive she will take monthly fixed amount of Rs. 100/- and thereafter the surplus amount will be paid to the 14 trust and the legal heirs of Manmatha. Accordingly it is clear that no marked or fixed property was acquired by Pramila through that trust deed, to get her fixed amount of monthly expenses of Rs. 100/- and as such acquiring of any property by Pramila or all the properties mentioned in trust deed by her by the trust or after introduction of Act of 1956 transformation of any or all the trust mentioned property as promila's exclusive property is a myth. The pre-condition of section 14(1) is that specific property is to be allotted or transferred to a female Hindu in lieu of her claim to maintenance and the allotment would be in satisfaction of her jus ad rem i.e. the right to be maintained out of the joint property and then only the female Hindu would be getting the property by virtue of her preexisting right. Since the deed creating trust is merely a document effecting mode and manner of incurring expenditure by the trustee from the income of trust properties it does not amount to create a grant of the property. Had the settler any intention to give properties to his wife in lieu of maintenance or arrears of maintenance, then the settlor would not have specified how the total income derived from the properties is to be distributed and that upon the death of his wife, how the trust properties would be distributed among his legal heirs. It is 15 also to be noted in this context that after the death of Promola in 1976, all the beneficiaries have accepted the partition, mentioned in the deed and no beneficiary since 1976 have claimed ownership over other property except as allotted, which also shows trust was extinguished with the death of Promila and partition effected in terms of intention of the settlor and tenant also paid rent to allotee without disputing owner ship. Accordingly it is palpably clear that no specific property of the trust deed was allotted or transferred in favour of Pramila by the trust deed to realize fixed amount of monthly maintenance of Rs. 100/- to attract section 14(1) of the Act.
Moreover, from the recital of the trust deed it is clear that only life interest was given to Pramila with a restriction that she would not be permitted to alienate or mortgage the said property to anyone under any circumstances. In Shivdev kaur Vs. RS grewal reported in (2013) 4 SCC 636 it has been held that if a Hindu female has been given only a 'life interest' through any documents referred to section 14 of the act of 1956 the said right would not stand crystalize into absolute ownership. Paragraph 14 of the said judgment runs as follows:-
14. Thus, in view of the above, the law on the issue can be summarised to the effect that if a Hindu 16 female has been given only a "life interest", through will or gift or any other document referred to in Section 14 of the 1956 Act, the said rights would not stand crystallised into absolute ownership as interpreting the provisions to the effect that she would acquire absolute ownership/title into the property by virtue of the provisions of Section 14(1) of the 1956 Act, the provisions of Sections 14(2) and 30 of the 1956 Act would become otiose. Section 14(2) carves out an exception to the rule provided in sub-section (1) thereof, which clearly provides that if a property has been acquired by a Hindu female by a will or gift, giving her only a "life interest", it would remain the same even after commencement of the 1956 Act, and such a Hindu female cannot acquire absolute title.
In this context it can be stated further that the judgment relied by the respondent in (2005) 5 SCC 390 is distinguishable with the facts circumstances of the present case in as much as in the said case with the introduction of section 14(1) the limited right given to Uttam Dasi under the will got enlarged to an absolute right in the suit property and thereby she became absolute owner of the property. In the said case during the life time of Hriday Ram he made a will bequeathed a part of his property to his daughter and the remaining property was given to his two wives for their maintenance with the condition that they would not have the power to alienate the same as per the will after the death of two wives of Hridoy ram the property was to revert back to his daughter as absolute owner and after the death of Hridoy Ram and his second wife in 1939 the property in question came to be vested with the third wife Uttam Dasi as per the terms of the will. Similarly, the case law referred in (2009) 15 SCC 756 has 17 also got no application in the present case as the property in that case stood in the name of mother in law. Appellant questioned that she had no income to purchase the property and out of income of plaintiffs husband the property was purchased and it stands in the benam of plaintiffs mother-in- law and as such it was held that even if mother in law had limited interest having no independent income still she became absolute owner, which has got no factual similarity with the present case. The case law reported in (1996) 8 SCC 525 has also got no application in the present context as in that case pre-existing right under shastrik law blossom into absolute ownership and right of maintenance did not acquire first time under the will since factually under the will the suit property was bequeathed to wife and his cousin's widow Jana Kathachi who has only got maintenance relationship with the testator. Similarly, in the case law reported in (2022) 17 SCC 434 states that she was in possession of property and got maintenance from rent derived from property. In the present case it is not true that Pramila used to possess all the properties mentioned in the trust deed only in lieu of her monthly fixed amount of maintenance of Rs. 100/- in terms of trust deed. Similarly the case law cited in (1977) 3 SCC 99 the property was 18 acquired by the female Hindu by way of compromise in lieu of maintenance. In AIR 1989 Cal 242 the fact of the case is also clearly distinguishable as in that case suit property was given to female Hindu for the purpose of her maintenance during her life time on the ground that she was the second wife and there was a possibility of no peaceful co-existence with the plaintiff who was the son begotten by his first wife. So from the fact of all aforesaid cases, it is clear that a property or part of the property was given to the female Hindu in lieu of her maintenance which became absolute with the introduction of section 14(1) of the Act of 1956, but in the present context it is Appellant's specific case that no specific property mentioned in the trust deed was given to Pramila for realization of fixed monthly maintenance of Rs. 100/-.
Accordingly both the aforesaid substantial questions of law are answered in favour of plaintiff/appellant with the specific observation that as per trust deed, after the death of Pramila the trust extinguished and in terms of trust deed plaintiff became owner only in respect of the suit property and no other property mentioned in the trust deed.
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Let the matter be listed in the monthly list of June 2025 for hearing the substantial question of law number III namely Whether the learned Judge of the First Appellate Court committed substantial error in law in not holding that the plaintiffs reasonably require the suit premises for their own use and occupation and also for the use of their family members as they have no other alternative accommodation save and except the suit premises?
Urgent Xerox certified photocopies of this Judgment, if applied for, be given to the parties upon compliance of the requisite formalities.
(Dr. Ajoy Kumar Mukherjee, J.)