Calcutta High Court (Appellete Side)
Pinaki Roy Choudhury vs Kolkata Municipal Corporation & Ors on 16 May, 2018
Author: Protik Prakash Banerjee
Bench: Protik Prakash Banerjee
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
THE HON'BLE JUSTICE PROTIK PRAKASH BANERJEE
W.P. NO. 5526 (W) OF 2015
Pinaki Roy Choudhury
Vs.
Kolkata Municipal Corporation & Ors.
For the petitioners : Mr. Saptangsu Basu, Sr. Adv.
Mr. Kaushik Dey, Adv.
For the K.M.C. : Mr. Biswajit Mukherjee, Adv.
Mr. Swapan Kumar Debnath, Adv.
For the Private : Mr. R.J. Bhattacharjee, Adv.
respondent
Heard on : May 3, 2018 and May 8, 2018
Judgement on : 16th May, 2018
Protik Prakash Banerjee, J.:
1. The short question raised for decision in this writ petition is who is entitled to have his name recorded in the Municipal Assessment Book of the Kolkata Municipal Corporation on the death of the last recorded Assessee - his legal heir on intestacy or, even pending probate of the will, in a contentious proceeding, the named executor? The consequential question which falls for decision is whether the executor is entitled to obtain an order quashing any recording made in favour of the legal heir on intestacy by the respondent No. 1, in its Municipal Assessment Book, without any order being communicated to the executor dealing with his objections to such recording?
2. The brief facts necessary for answering the questions are all on record, and either cannot be or were not disputed from the bar, which is why no affidavit was called for by the court. These facts are noticed in the two paragraphs which follow.
3. The writ petitioner is the named executor of the will of Late PijushKanti Roy Choudhury. The deceased was his brother. During his lifetime, the said PijushKanti Choudhuri applied for and obtained allotment of Plot No. P-153 in Scheme VII--M, from the Calcutta Improvement Trust (now the Kolkata Improvement Trust). Though he paid the full earnest money and the consideration for it, for reasons best known to him, the deed of conveyance was registered in the name of his wife, the Private Respondent (respondent No. 5). However, he constructed a building on the said plot then numbered P-153/A, pursuant to a sanctioned plan, from his own funds. The marriage was not blessed with any issue. These are no longer res integra and the respondent No. 5 is estopped by judgement and records from challenging these facts. This is because during his lifetime, Pijush Kanti Roy Choudhury sued his wife, inter alia for a declaration that the said property belonged to him and not to his wife. The reason for filing the plaint was averred in the plaint to be an apprehension in the mind of the plaintiff, since deceased, that since he and his wife had not had any children, in the event that she died intestate, according to the principles of Hindu law, he would not inherit any part of the said property. The wife (respondent No. 5) was the defendant in that suit. The suit was decreed ex parte on June 13, 2005 in Title Suit No.113 of 2004 by the competent civil Court. It has not been alleged to have been challenged. Copies of the plaint and the ordersheet including the decree have been enclosed as Annexure "P1" to the writ petition.
4. Subsequently, the said Pijush Kanti Roy Choudhuri allegedly executed his last will and testament on December 14, 2007 giving what amounts to a life-estate to his wife, and leaving the property itself, absolutely, after her death, to his two nephews, who are the sons of the writ petitioner, his brother. The writ petitioner alleges that by the said will he was appointed executor to his estate and of the said will.After the death of Pijush Kanti Roy Choudhuri on January 1, 2008, the writ petitioner applied for probate of the will by way of Probate Case No.4 of 2008 and this was objected to by the private respondent and therefore became a contentious cause and was renumbered as OS No.4 of 2008. The writ petitioner also put the respondent No. 1 on notice through the respondent No. 3 of such death and informed the respondents about the pendency of the contentious probate proceeding aforesaidand requested that no effect be given to any application made by anyone for mutation of such applicant's name in the Municipal Assessment Book in respect of the said property referred to in paragraph 2 above. When a notice of hearing was served on the writ petitioner by the respondent authorities in respect of an application for mutation made by the private respondent, the writ petitioner caused an objection to be made to the authorities of the respondent No. 1 and also participated in the hearing which was held on September 23, 2008. It is the specific case of the writ petitioner, both by a letter dated November 24, 2008 as also by pleading in paragraph 8 of the writ petition, no copy of any order in the said mutation proceedings, dealing with his objections, was served upon him. He came to know of that mutation had been effected in favour of the private respondent, in respect of the said property, in the Municipal Assessment Book, of the respondent no.1, from its website. Copies of the relevant documents are on record. Nothing is disputed whether from the Bar or on the face of the records, by the respondent No. 1 and its learned Advocates, and except for the copy of the will and the probate application nothing is disputed on behalf of the private respondent.
5. Appearing on behalf of the writ petitioner, Mr. Saptangsu Basu, Learned Senior Advocate, ably assisted by Mr. Kaushik Dey, submitted that in terms of Section 211(2) of the Indian Succession Act, 1925, the property of a deceased vests in the executor to his will in every case where there is a named executor. He submits that apart from the Executor no other person is entitled to intermeddle with the estate, or even be recorded as an Assessee in the Municipal Assessment Book since the tax is to be paid from the estate of the deceased and only the Executor can do that. He submits that the acts of the respondent in allowing mutation in favour of the respondent No. 5 in respect of the property which is the subject matter of the will is illegal and furthermore, in violation of the public policy of India, since public policy is expressed by statute, in this case, Section 211 of the Act of 1925. He further says that no copy of the order by which the mutation was allowed has been made available to him till today. The writ petitioner does not know why his objections were not sustained. In short, he submits that it is, therefore, not a speaking order and was thus made in gross violation of the basic principles of natural justice and hence in violation of Article 14 of the Constitution of India and thus a nullity and on that ground alone the order ought to be set aside.
6. Mr. Bhattacharjee, Learned Advocate for the private respondent, on the contrary draws my attention to Section 211(2) of the Act of 1925 and submits that nothing contained in sub-section (1) of Section 211 is competent to vest the property in an executor where the property would have passed by survivorship to some other person. He further submits that since the probate of the will has been opposed by his clients on serious charges of forgery and that there was no genuine will, and that the deceased had, at the relevant time, no testamentary capacity, no effect ought to be given to the said will before it receives probate. He also submits that in view of Section 213 of the Act of 1925 no right as executor can be established in any court of law unless the will has received probate from a competent court and the present will is included under the provisions of Section 213(2)(i) read with Section 57, clauses (a) and (b) of the Act of 1925. The said provisions refer inter alia to wills made after 1870, that is to say, after the commencement of the Hindu Wills Act, 1870. Therefore, the right under which Mr. Basu's client claims, he submits, is yet to be established and so no relief can be granted to him.
7. To this Mr. Basu responds that the said sub-section (2) of Section 211 of the Act of 1925 clearly refers to a coparcenary relationship as existed when the Act of 1925 was enacted and at a time when the coparcenaries of a deceased took as survivors and not as his legal heirs.
8. Mr. Mukherjee, Learned advocate appearing on behalf of the respondents No.1 to 4 submits, in addition, that the position of an executor, prior to grant of probate is that of a mere trustee and not the person in whom the beneficial interest in the estate of the deceased would vest.
9. To answer the questions of law framed in the first paragraph and to assess the relative merits of the submissions both the provisions of Section 211 of the Act of 1925, the relevant provisions of the Kolkata Municipal Corporation Act, 1925 and the evolution of the status of an executor of a will made by a Hindu would have to be considered.
10. The Indian Succession Act, 1925, by way of Section 211, provides as follows: -
"Character and property of executor or administrator as such:
(1)The executor or administrator, as the case may be, of a deceased person is his legal representative for all purposes, and all the property of the deceased person vests in him as such.
(2) When the deceased was a Hindu, Muhammadan, Buddhist, Sikh, Jaina or Parsi or an exempted person, nothing herein contained shall vest in an executor or administrator any property of the deceased person which would otherwise have passed by survivorship to some other person."
11. This provision of law cannot be read in isolation. The evolution of the status of an executor in India would perhaps fascinate only a scholar of law, but for our purposes, a brief summary must be attempted. The appointment of an executor by a Hindu in a will executed before the Hindu Wills Act, 1870 did not vest the property in him. He held the property only as a Manager. He did not have same status as an executor of a will under English law. He did not require probate and probate if obtained would not have vested in him any title to the estate, real or personal, which he administered.The immediate effect of the Act of 1870 was to place a Hindu executor of an Anglo-Indian testator in so far as concerns taking out of probate and the vesting in him of the estate of the deceased. The Probate and Administration Act VI of 1881 applied to the whole of British India. The preamble to the said Act stated that the Act was enacted to provide for the grant of probate and Letters of Administration to the estate of the deceased person to whom the Indian Succession Act, 1865 did not apply. Therefore, the act applies to Hindus, Muslims, Buddhists and exempted persons under s. 332 of the Indian Succession Act, 1865 who died before or after 1st April, 1881. The first part of s. 4 of the Act corresponds to sub-sec (1) of Section 212 of the Act of 1925. It enacts that the executor or administrator of the deceased is his legal representative and all the properties of the deceased vest in him as such and no probate of the will or codicil and no Letter of Administration are essential or compulsory under that Act. Section 211 in fact corresponds to Section 179 of the Indian Succession Act, 1865 subject of course to the proviso in case of survivorship for those classes of persons provided for in Section 4 of the Act of 1861. Together, these constitute the background of Section 211 and both its sub-sections. If any authority is required for above exposition of the history of executors of Hindu wills, I shall refer to the case of Administrator General--v-- Premlal, reported in 28 Calcutta 788 (PC).
12. It is perhaps self-evident, that after the enactment of the said precursors to the Act of 1925, the executor acted under the will, and probate was not essential. That is why the property was deemed to vest in him from the date of death of the testator. He would of course stand in a fiduciary capacity towards the beneficial owners of the estate, and be, to that extent, a trustee, but he represented the estate. In fact, the Judicial Committee of the Privy Council was pleased in the case of Venkata--v--Ramayya reported in 59 Indian Appeals 112, to confirm a decision of the Full Bench of the Madras High Court, in the light of the provisions of the said Act of 1881, wherein it was held that the estate vested in the executor from the date of the death of the testator even though probate had not been obtained. Their Lordships of the Privy Council in fact there was nothing to suggest that the vesting under Section 4 of the Act of 1881 or the power of disposal under Section 90 of that Act was depended upon the grant of probate.
13. As opposed to a grant of administration, the grant of probate does not give title to the executor. It only makes his title certain. The position of the administrator, is however, different from that of an executor. In case of an administrator, title is derived wholly from the court and he has none until the letters of administration are granted and the property of the deceased vests in him only from the time of the grant. An administrator is thus not a legal representative of the deceased until the grant of Letters of Administration. This is the only way of reading the Indian Succession Act, 1925 as a whole, in the light of the legislative history and the interpretation of the different provisions thereof. This finds support also from the glaring difference in the words used in Sections 220 (relating to the effect of the grant of letters of administration) and Section 227 (relating to the effect of grant of probate) in the Act of 1925. Therefore, I am afraid that I cannot agree with Mr. Bhattacharjee that the writ petitioner cannot maintain his objection to the change in the recording of name by the respondent No. 1 in its Municipal Assessment Book until he obtains probate of the will. Such submission made on behalf of the respondent No. 5 is thus rejected.
14. The interests of the caveator/objector to the probate, the respondent No. 5, are, at any rate, sufficiently safeguarded by the scheme of the Act of 1925. The writ petitioner claims upon a will, and not a grant of probate. If the probate proceeding ultimately fails on the ground that the will is a forgery, his intermediate acts will not be validated and he will be liable at law for all that he has done, but if it is granted, it will establish the will from the death of the testator and render valid all his acts.
15. Coming now to the contention of Mr. Bhattacharjee that Section 211(2) of the Act of 1925 would disentitle the writ petitioner from objecting to the mutation, on the ground that the property does not vest in him as putative executor, since the wife, (respondent No. 5) has survived the deceased and she is the legal heir on intestacy, I am afraid that Mr. Bhattacharjee appears to have misconstrued the word "survivorship" used in that sub-section.
16. The law is well settled, that sub-section (2) of Section 211 applies in a case where after the death of the testator, his estate would not have passed to his legal heirs on intestacy, but to his coparceners by survivorship. If authority was needed for this, I will seek sustenance from Bodi--v--Venkataswami reported in 38 Madras 369, and also Kali Kumar and Others--v--Mst. Munabati Kumari reported in AIR 1923 Patna 96 (I). In other words, where a coparcenary dies, and by under the law applicable to him his estate would pass to his surviving coparceners, only in such case would the property not vest in the executor. The reason for this is not far to seek. Such a coparcener as a testator, could not have disposed of his ancestral property at the time of his death and if he tried to do so, the will would itself be invalid. His surviving coparceners did not take as his legal heirs, but they took whole of the ancestral property including his share therein by survivorship. So far as the construction of the word "survivorship" is concerned, Section 212(2) of the Act of 1925 treats both an administrator and an executor at par: the property does not vest in either, in case there is someone to whom the property would pass by survivorship on the death of the testator. In this connection, a Bench decision of this court in the case of In the Goods Of Sew Prasad Saraf, reported in AIR 1954 Cal 444 has authoritatively laid down as follows: -
"Sections 211, 212 and 213 of the Succession Act, 39 of 1925 make it abundantly clear that in case of a member of a joint Mitakshara Hindu family who dies intestate, no grant of letters of administration can clothe the administrator with representative title to any property of the deceased person which would otherwise have passed by survivorship to some other person or persons".
17. Therefore, there being no case made out by anyone that the respondent No. 5 was a coparcenary of the deceased or that the property was jointly held by them in a situation where it would pass to her by survivorship on the intestacy of the deceased, I am afraid that I cannot accept the interpretation of the word "survivorship" offered by Mr. Bhattacharjee and the consequent construction he has attempted to give to Section 212(2) of the Act of 1925.
18. Thus, I have to hold that the exception carved out by Section 211(2) of the Act of 1925 does not apply when the wife claims as the legal heir on intestacy of the husband, to prevent the property vesting in the executor as the legal representative. If the probate is refused on a finding that the will is not genuine, this finding will of course be of no effect. Yet till the probate petition is pending, even as a contentious cause, the executor - writ petitioner herein - alone is entitled to represent the estate, subject of course to the restrictions imposed by the will canvassed by him and any order of the competent civil court about what powers he can exercise in respect of the estate.
19. Travelling lightly over the fertile fields of statutory exegesis, we have to pause for a moment on the marker left by Section 183 of the Kolkata Municipal Corporation Act, 1980, because ultimately it is on this anvil that we have to test the legality of the action of the respondent No.
1. Section 183 of the said Act of 1980 provides as follows: -
"Notice of transfers:
(1) Whenever the title of any person to any land or building is transferred, such person, if primarily liable for the payment of 1[property tax] on such land or building, and the person to whom the title is so transferred shall, within three months after the execution of the instrument of transfer or after its registration, if it is registered, or after the transfer is effected, if no instrument is executed, give notice of such transfer in writing to the Municipal Commissioner. (2) In the event of the death of any person primarily liable as aforesaid, the person on whom the title of such land or building devolves shall, within six months from the date of death of the former, give notice of such devolution in writing to the Municipal Commissioner. (3) The notice under this section shall be in such form as may be prescribed, and the transferee or the person on whom the title devolves shall, if so required, be bound to produce before the Municipal Commissioner any documents evidencing the transfer of devolution. (4) If any person, who transfers his title to any land or building, fails to give any notice under this section to the Municipal Commissioner, he shall, in addition to any penalty to which he may be subject under this Act, continue to be liable for payment of the1[property tax] on such land or building until he gives such notice but nothing in this section shall be deemed to affect the liability of the transferee for payment of the1[property tax] on such land or building.
(5) The Municipal Commissioner shall, on receipt of a notice of transfer or devolution of title under this section2and upon payment of such fee as may be determined by regulations], record such transfer or devolution in a bookand also in the Municipal Assessment Book :
[Provided that nothing in this sub-section shall derogate from the power of the Corporation to refuse mutation in a case where there is arrear of any dues to the Corporation on account of the transfer or the predecessor-in-interest of the applicant.
(6) On a written request by the Municipal Commissioner, the Registrar of Assurances, Kolkata, or the District Registrar, 24 Parganas, shall furnish such particulars regarding registration of instruments of transfer of immovable properties in Kolkata as the Municipal Commissioner may, from time to time, require.
(7) Notwithstanding anything contained in sub-section (6), the Registrar of Assurances, Kolkata, or the District Registrar, 24 Parganas, shall furnish to the Municipal Commissioner such particulars soon after the registration of an instrument of transfer is effected, or, if the Municipal Commissioner so requests, such periodical returns at such intervals as the Municipal Commissioner may fix.
20. The scheme of this provision, when considered in the backdrop of the Act of 1980 as a whole, appears to be very clear: a person's name is recorded in the municipal assessment book as one primarily liable to pay taxes, and that is the reason for recording it; so that the respondent No. 1 can have some definite person to identify as one from whom it can realize taxes. In other parts of the statute, the person on whom the incidence of property tax lies, has been explained, and Section 193 provides that the incidence is on the person who has the right to let the property where it is unlet. Section 183 of the Act of 1980, on the other hand, is quite specific that the person who is entitled to give notice of the death of the person primarily liable to pay property tax, is the person on whom the title to the land or building devolves upon the death of the person primarily liable. Only thereafter, would the rest of the process of mutation be effected by recording the devolution as intimated. This makes it very specific that the person giving the notice and applying for mutation must be able to show that the title to the property - land or building - has devolved upon him or her as on the date he or she has given such notice.
21. However, the title to the property has not devolved upon the respondent No. 5. It will not do so until her objection to the probate of the will succeeds. Until the will is proved not to be genuine, she is a holder of a mere life-estate in the property with the right of residence only, without title the property. Even if the probate is granted, the beneficiaries do not automatically become persons on whom the title devolves - for that an assent to the legacy by the executor (the writ petitioner) is required. So, neither the respondent No. 5 nor the beneficiaries under the will are entitled to have mutation of the properties in their name at present.
22. Applying this rather straight-forward test, therefore, I am forced to conclude that the private respondent, during the pendency of the probate proceedings cannot show that the title to the property which is the subject matter of the will, has devolved upon her. She can at best show that if the will is proved not to be genuine, then she would inherit the property and only upon that contingency occurring, the property would devolve upon her. It does not devolve upon her upon the death of her husband. The notice she therefore gave of the death or her application for mutation, was not pursuant to any right she had in praesenti for obtaining such mutation since the property has not yet devolved upon her.
23. As such, the respondent No. 1 and its officers acted wholly without jurisdiction and in violation of the procedure prescribed by law and in blatant contravention of Section 183 of the Act of 1985 in entertaining the notice of death from the respondent No. 5 and in proceeding with her application for mutation and allowing it. They were acting as creatures of statute and it is trite that they could only act in the manner prescribed or not at all. Therefore, the act of granting mutation to the respondent No. 5 in respect of the concerned property was procedurally ultra vires and a nullity. It has no consequence.
24. Furthermore, admittedly, the respondent No. 1 and its officers were in seisin of not one but two objections made on behalf of the writ petitioner, against the grant of mutation in favour of the respondent No.
5. Before granting the mutation, they were required to not only decide this objection but also pass a reasoned order - however brief - showing on what considerations and materials they were rejecting the objection and granting the mutation and were further required to communicate this order to the writ petitioner at the latest alongwith the order granting mutation. They have admittedly not done so and no reason is assigned for this culpable inaction. I, therefore, further hold that the respondent authorities were grossly in violation of the basic principles of natural justice in the matter of passing and communicating to the writ petitioner a speaking order showing how the objections of the writ petitioner to mutation were dealt with, and I hold that this is a violation of Article 14 of the Constitution of India since there is a denial of equality before the law and equal protection of the laws and arbitrariness in action every time there is such a gross violation of the basic principles of natural justice.
25. Accordingly, I am constrained to hold that the entire proceeding for mutation initiated on the notice and application of the respondent No. 5 is a nullity and cannot be given effect to and since the consequence of a nullity, is a nullity neither can the order for mutation be given effect to by the respondents or any of them.
26. The questions framed in the first paragraph are therefore answered accordingly, as appears from the foregoing paragraphs of this judgement.
27. Unfortunately, I cannot issue any writ of or in the nature of Certiorari since the order of mutation impugned, has not been annexed to the writ petition and the records were not called for, and it is a settled principle of law that Certiorari will not issue for quashing an order where the order is not before the court. However, since the case of the writ petitioner is that no order - whether of mutation or rejecting his objection - was ever served upon him, I will not penalize the writ petitioner for not doing that which it was impossible for him to do. I would, instead mold the prayers for mandamus as in prayers (a) and (b) of the petition.
28. Accordingly, I direct as follows: -
a. The proceedings for mutation initiated on any notice sent or application made by the respondent No. 5 intimating the death of Pijush Kanti Roy Choudhury in respect of Plot No.P-153/A, Scheme VII-M, VIP Road, Kolkata - 700 054 are held to be nullities and are cancelled and set aside together with any and all orders passed thereon. Any entry made in the Municipal Assessment Book in favour of the respondent No. 5 in respect of the said property and/or land and/or building thereat shall be struck off and deleted by the respondents and each of them concerned. No effect shall be given thereto.
b. The writ petitioner, who has already given notice of the death of Pijush Kanti Roy Choudhury on May 5, 2008 to the respondents through the respondent No. 3, shall give a further notice and apply in prescribed form to the respondent No. 2 for mutation of the name of the writ petitioner as executor to the estate of the Late Pijush Kanti Roy Choudhury in respect of the property (being land and building) at Plot No.P-153/A, Scheme VII-M, VIP Road, Kolkata - 700 054 in such name and style.
c. As and when such notice is sent and application is made the respondents shall immediately, and without prejudice to the respective rights and contentions of the parties, record the name of the writ petitioner in his capacity as executor as the "person responsible" for paying property tax in respect of the said property, till disposal of the application before the respondent No. 3.
d. The respondent No. 3 shall thereafter, after giving all parties and any other person concerned, a reasonable opportunity of being heard, dispose of the application of the writ petitioner for mutation by a reasoned order in the light of my judgment and the observations made therein, within a period of 3 months from the date of any application as in direction (2) made by the writ petitioner and communicate the decision to the writ petitioner, the respondent No. 5 and all other concerned persons. Such decision shall be made without prejudice to the respective rights and contentions of the parties relating to the genuineness and validity of the will dated December 14, 2007 and any decision made therein shall be subject to the result of the probate proceedings referred to in paragraph 4 of this Judgement may be revisited by the respondent No. 3 on the basis of the result of the probate proceedings as and when an application is made in this behalf by any concerned party disclosing the result of the probate proceedings.
29. The writ petition is allowed on the above terms. There shall be no order as to costs.
(Protik Praskash Banerjee, J.)