Calcutta High Court (Appellete Side)
Sri Kaushik Ghosh vs Smt. Reba Das & Anr on 8 November, 2013
Author: Toufique Uddin
Bench: Toufique Uddin
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8.11.2013
C.O. No. 660 of 2013
and
C.O. No. 661 of 2013
Sri Kaushik Ghosh ......... Petitioner
Vs.
Smt. Reba Das & Anr. ......... Respondent
Mr. Anirudhdha Chatterjee Mr. Rahul Karmakar Ms. Keka Mukherjee ... For the petitioner Mr. Saibalendu Bhowmick Mrs. Manisha Bhowmick ... For the Opposite Party The revision No. C.O. No. 660 of 2013 arose out of order No. 52 dated 15.9.2012 passed by the learned 3rd Bench of the Small Causes Court at Calcutta in Misc. Case No. 216/2007 arising out of Ejectment Execution Case No. 58/2007.
The short background is that the predecessors in interest of the petitioner viz. Renuka Ghosh, since deceased had obtained an ex parte decree of eviction from the learned 3rd Bench, Small Causes Court, Calcutta on 6.11.2006 passed in Ejectment Suit No. 165/04. The petitioner states that the said Renuka Ghosh during her lifetime had put the said decree into execution before the learned Executing Court and the same was registered as Ejectment Execution Case No. 58/07. Being registered, Renuka Ghosh during her lifetime filed an application under Order 21 Rule 97 of 2 the Code of Civil Procedure before the learned Executing Court praying for police help to execute the said decree. The application was registered as Misc. Case No. 216/07. The application was duly contested by one third party/resistant or objector viz. Jyotsna Das wherein she filed written objection denying and disputing the material allegations. During pendency of the Misc. Case No. 216/07 the said Jyotsna Das filed an application under Order 21 Rule 101 of the Code of Civil Procedure praying for adjudication of right. That application was registered as Misc. Case No. 102/08. It was duly contested by Renuka Ghosh during her lifetime denying all material allegations. During pendency of the said two cases the decree- holder died intestate on 8.9.11. Subsequent to the said demise as per the trust deed dated 10.7.72, the rear portion of the building wherein the suit premises is situated devolved upon the estate of the deceased Paresh Chandra Ghosh. Paresh Chandra Ghosh during his lifetime had executed his last Will and testament on 31.12.2005 bequeathing the said property in favour of the petitioner. Paresh Chandra Ghosh pre-deceased the decree-holder. As per the said Will, the petitioner being the sole beneficiary of the estate is to be substituted in place and state of late Renuka Ghosh.
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Accordingly, the petitioner filed an application under Order 22 Rule 3 of the Code of Civil Procedure in Misc. Case No. 216/07. Due to some lacuna in the application the same was withdrawn and a fresh application dated 17.3.12 was filed praying for substitution in place of decree-holder. The objector duly contested the application verbally before the learned Court below disputing all material allegations. On 15.9.12 learned Executing Court on hearing of both the sides rejected the application filed by the petitioner by Order No. 52.
Now, the point for consideration is if the impugned order calls for any interference or not.
The learned Court below erred in law as well as in fact by making out a third case which is neither a case of the petitioner nor the Opposite Party.
The learned Counsel for the Petitioner contended before me that the learned Court below erred in law in not appreciating that the suit property is governed by trust deed and not by law of inheritance. The learned Court below did not consider clause 5 of the trust deed.
On the other hand, the learned Counsel for the Opposite Party supported the impugned order passed by the learned Court below and submitted that the order needs no interference.
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The learned Counsel for the Petitioner have also submitted written notes of argument. It was contended by them that the instant application for substitution is not required under law as per provisions of Order 22 Rule 12 of the Code of Civil Procedure. The execution shall proceed as if the decree-holder is alive.
The petitioner is the only legal heir upon whom the entire state of the said Paresh Ch. Ghosh being the 50% of landed property has devolved as per his Will and as such the learned Executing Court does not have jurisdiction to decide title of parties in any executing proceedings. The Opposite Party No. 3/third party cannot raise any objection as to the title of the petitioner. The tenant has already vacated the premises and the third party cannot challenge the title of the co-sharer of the property.
Hence, assuming but not admitting that the petitioner is not the only heir upon whom the property is devolved but even then the petitioner being a co- sharer can proceed with the proceedings and the tenant cannot raise any objection. The petitioner is the only legal heir to pursue the instant application.
The petitioner's claim as argued by the learned Counsel for the Opposite Party banks upon the provision of Order 21 Rule 16 of the Code of Civil 5 Procedure which has no legal basis inasmuch as the said provision palpably declares that where the application for execution had already filed by the deceased decree-holder in the executing court, and legal representative of the deceased decree-holder wants only to continue with the execution proceedings, then there is no scope of application of the said provision of Order 21 Rule 16 of the Code of Civil Procedure. Order 21 Rule 16 provision can only apply in a case where an application for execution is made by a transferee/legal representative in the court which passed the decree. This principle was dealt in the decision reported in 1986 (2) Civil Law Journal 646. Other contention of the petitioner for establishing his sole right to represent the deceased decree-holder on the basis of alleged Will left by his predeceased father with respect to the suit property has also no legs to stand, inasmuch as admittedly the said Will left by the deceased Paresh Chandra Ghosh being one of the trustees in succession and also one of the beneficiaries of the said trust estate created by Renuka Ghosh i.e. the original decree-holder. Sole trustee is neither probated nor any application for granting probate was ever made by the said executors before any court of law till date and as such no right over the said Will is ever legally created under Section 213 of the Indian Succession Act, 1925.
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Secondly, the said Will dated 31.12.2005 was created only in respect of the property which the predeceased beneficiary got through the trust deed from his mother Renuka Ghosh created on 10th July, 1972 but not in respect of the ex parte decree itself, obtained by the said sole trustee on 6th November, 2006 in Ejectment Suit No. 165/2004.
The language of Order 21 Rule 16 is clear that there should be a transfer of interest of the decree to the petitioner either by any assignment or by operation of law in writing within the meaning of the rule, to enable the assignee, transferee to execute the said decree itself. The said principle was explained by the Hon'ble Apex Court by a majority view of Three Bench Division in the case of Jugal Kishore Saraf vs. M/s. Raw Cotton Co. Ltd. reported in AIR 1955 Supreme Court 376. Apart from that, it is admitted position that the father of the petitioner died on 23.3.10 and during the life time of sole trustee who died on the 8th September, 2011 leaving behind Dilip Kumar Ghosh as trustee in succession. Neither there was any discharge of the said trustee nor any suit was filed by the beneficiaries for execution of the said trust under Indian Trust Act and the property remains trust estate and all the legal representatives became joint trustees in the absence of any provisions of appointment of trustee in succession in the so-called trust deed. 7
Apart from the above it is clear from the recitals of the trust deed dated 10th July, 1972 that the original owner of the said premises No. 14B, Santi Ghosh Street was Gopal Chandra Ghosh who created the original trust in respect of the said property by a registered deed being No. 3872 of 1968 for the benefit of his youngest son. Now, after raising obstruction by this Opposite Party No. 3 in the execution proceedings with her independent right over the possession of the suit property, filed an application under Order 21 Rule 101 of the Code of Civil Procedure for adjudication of all connected issues related to right, title and interest of both the parties i.e. both of the decree-holder as well as of the obstructionist applicant in Misc. Case No. 102/2008 over the said property which is to be disposed of before taking any steps in the execution case filed by the original decree-holder. The possession of this Opposite Party No. 3 herein cannot be disturbed except in accordance with law and unless and until the said proceedings terminate in favour of the decree-holder, the decree- holder and/or her legal representatives cannot take possession of the said suit property and this Opposite Party No. 3/obstructionist is entitled to retain possession. Since right, title and interest of the decree-holder and after her death of all legal representatives of the deceased decree-holder have to 8 be adjudicated by the learned Executing Court in the pending proceedings under Order No. 21 Rule 101 of the Code of Civil Procedure, there would be no scope of interference by this Hon'ble court at this stage.
I have heard the submissions made by both the parties and perused the materials on record.
It was argued by the Opposite Party No. 3 that the petitioner himself made out a new case that the suit property is a trust property and the general rule of succession would not come into play in the instant case and as such he became the sole representative of the deceased decree-holder by virtue of Will left by his predecessor father.
Shorn of unnecessary details the position runs that Renuka Ghosh executed the trust deed on 10.7.72 by making arrangement to the effect that after her demise her property in equal share will go to Paresh Chandra Ghosh and Dilip Kumar Ghosh and Dilip Kumar Ghosh will get the front portion while Paresh Chandra Ghosh will get the back portion of the premises. The present petitioner claims right, title and interest through Paresh Chandra Ghosh.
A careful scrutiny of the record shows that Paresh Chandra Ghosh died on 23.3.10 and Renuka Ghosh died on 8.9.11. Further, it appears from the copy of the last Will executed by Paresh Chandra Ghosh on 9.1.06 that he appointed Kaushik Ghosh 9 and his wife Smt. Jui Ghosh being the wife of Kaushik Ghosh as executor and executrix to the last Will of testament dated 31.12.05. Also it appears that Paresh Chandra Ghosh and other sons and his wife at that time was alive. The petitioner took the plea that he is the executor of the said Will of his father and the suit property devolved by virtue of the said Will.
Therefore, it is clear that before acquiring the property by Paresh Chandra Ghosh on the basis of the deed of trust executed by his mother, Renuka Ghosh, he died on 23.3.10 whereas Renuka Ghosh died on 8.9.11.
Therefore, the spirit of force of the trust deed lost its sanctity so far as the claim of the present petitioner is concerned. Since Paresh Chandra Ghosh pre-deceased late Renuka Ghosh, so, the suit property did not devolve according to the Will upon Paresh Chandra and he is not the owner of the suit property and, accordingly, the same cannot devolve upon his son.
Thus, the learned Court below appeared to have rightly felt that all the legal heirs of Renuka Ghosh are required to be substituted in respect of the portion which Renuka Ghosh prior to her death kept apart for bequeathing to Paresh Chandra Ghosh.
The impugned order passed by the learned Court below appears to be a speaking one. 10
This being the position, there is no merit in the revision.
Accordingly, the revision stands dismissed. Urgent certified copies, if applied for, to be issued according to rules.
This judgment also covers C.O. No. 661 of 2013 being identical in nature.
(Toufique Uddin, J.)