Somnath Sarkar vs Ms. Atasi Saha And Another
2021 Latest Caselaw 4157 Cal

                       In the High Court at Calcutta
                        Civil Revisional Jurisdiction
                               Appellate Side

The Hon'ble Justice Sabyasachi Bhattacharyya

                              C.O. No.423 of 2021

                                Somnath Sarkar
                                       Vs.
                           Ms. Atasi Saha and another




For the petitioner                    :     Mr. Saktinath Mukherjee,
                                            Mr. Aniruddha Chatterjee,
                                            Mr. Rahul Karmakar,
                                            Mr. Debabrata Roy


For the opposite parties              :     Mr. Kushal Paul


Hearing concluded on                  :     03.08.2021


Judgment on                           :     09.08.2021




Sabyasachi Bhattacharyya, J:-



1.

The plaintiff in a suit for recovery of Khas possession by evicting the

defendants and for ancillary reliefs has preferred the instant revisional

application against an order whereby the plaintiff's application under

Order XII Rule 6 of the Code of Civil Procedure, for judgment on

admission, was rejected by the trial court.

2. The plaintiff claims title to the property by virtue of a deed of

settlement executed by the original owner, Kali Kanta Sarkar (since

deceased) on May 11, 1963. The learned senior advocate for the

petitioner argues that, on the basis of certain admissions made by the

opposite parties in their written statements, the trial refused to

exercise jurisdiction vested in it by law in not passing a judgment on

admission.

3. The learned senior advocate places reliance on the statement made by

the defendants in paragraph no.7 of the written statement to the effect

that Rekha Sarkar and Sondhya Sarkar had the right to mortgage, sell

or devise or in any way dispose of the said premises after the death of

Saroju Bala Sarkar and their respective husbands.

4. It is further stated by the defendants in paragraph no.9 of the written

statement that the defendant no.1 has no full blooded brother. It was

also stated in the said paragraph that the plaintiff is the only male

child of Nilmoni and Sondhya Sarkar. In paragraph no.18 of the

written statement, the defendants have admitted that the plaintiff is

the son of Nilmoni Sarkar and Sondhya Sarkar.

5. The learned senior advocate for the petitioner hands up a genealogical

table of the family of the parties which is as follows:

Kali Kanta Sarkar (Settlor) Died on 15.06.1965 (Trust Deed Executed on 11th May 1963)

Saroju Bala Nemai Sarkar Nilmoni Sarkar Sarkar (Wife) (Son) (Died on (Son) (Died on (Died on 21.02.2012) 08.10.2018) 22.03.1982)

Rekha Sarkar Atashi Sarkar Sarkar (Wife) Sarkar (Died on (Daughter) (Born 26.09.2012) on 1958)

..Defendant

Sandhya Tapashi Sarkar Somnath Sarkar Sovon Sarkar Sarkar (Wife) (Daughter) (Son) (Born on (Son) (Died on 2018) (Born on 1958) 11.03.1963) Lost From 1995 ...Plaintiff

6. It is argued on behalf of the petitioner that, as per the deed of

settlement as annexed at pages 43 to 49 of the revisional application,

only the male heirs in the family were to inherit the property. Such

qualification was not restricted to the sons of the settlor but operated

across future generations.

7. In the trust deed, the expression "the daughters or their heirs" has

been used to qualify the right of inheritance and it has been

specifically stipulated that the property-in-question, being premises

No.149/B, Vivekananda Road, may not vest in any way in the said

daughters or their heirs. It is further stated in the deed of settlement

that the settlor was desirous of the said premises being enjoyed by the

male heirs of the said respective sons, thereby meaning that the male

heirs in the family, in successive generations, would be entitled to the

property as opposed to the female heirs.

8. Although, as per the deed of settlement, the right of Rekha Sarkar (the

widow of the settlor's son Nemai Sarkar) and Sondhya Sarkar (the wife

of late Nilmoni Sarkar, another son of the settlor), were restricted from

mortgaging, selling or dispose of the premises during the lifetime of

the settlor and her wife Smt. Saraju Bala Sarkar and the lifetime of

the respective husbands of Rekha and Sondya, such right did not

automatically ripen into absolute title after the demise of the said life

interest-holders as per the terms of the deed.

9. Learned counsel argues that, as per the deed, the two equally

partitioned shares as shown in Schedules 'B' and 'C' and as portions

marked 'A' and 'B' in the plan annexed to the deed was to devolve on

Rekha and Sondhya, for their absolute use and benefit and their

respective male heirs to be begotten by their respective husbands, as

well as possession shall be handed over to Rekha and Sondhya

according to the division on the death of the settlor and his wife. Such

conferment, it is contended, was only restricted to possession and

user and did not pertain to title.

10. It is contended by the learned senior advocate for the petitioner that

the aforesaid admissions contained in the written statement, read in

conjunction with the provisions of the deed of settlement, clearly

indicate that the plaintiff is the only male child of Nilmoni Sarkar and

Sondhya Sarkar and thus the absolute owner in respect of premises

no.149C, Vivekananda Road, Kolkata- 700 006. However, as far as

the defendants are concerned, they are not entitled to any right, title

and/or interest in the property since they are female descendants in

the family.

11. Learned counsel appearing for the opposite parties, in controverting

the above arguments, submits that a complete and meaningful

reading of the deed of trust would clearly indicate that the restriction

regarding vesting of the property was limited to the wife and the

daughters of the settler and the heirs of the latter. The expression

"the daughters" cannot be applicable across generations but only

referred to the daughters of the settlor.

12. That apart, it is clearly indicated in the deed of settlement that Rekha

Sarkar and Nemai Sarkar and their respective male heirs to be

begotten by their husbands would derive the absolute use and benefit

of the property subject to the life interest created in favour of the

settlor and his wife and their husbands. The said clause in the deed

could not be construed to be an absolute bar on the devolution of the

property on all female descendants in the family.

13. Upon hearing learned counsel appearing for both the parties and

perusing the plaint, written statement as well as the deed of

settlement-in-question, it is clearly evident that the defendant no.1

has no full blooded brother. However, it is denied that the defendants

have no right to use and occupy the premises but that the plaintiff is

the absolute owner in respect of premises no.149C, Vivekananda

Road, Kolkata- 700 006, since the plaintiff is the only male child of

Nilmoni and Sondhya. However, a glance at the genealogical table will

reveal that the defendant/opposite party no.1, namely, Atashi Saha is

the daughter of Nemai Sarkar, the son of the settlor. The plaintiff,

namely, Somnath Sarkar is one of the sons of Nilmoni Sarkar, the

latter being a son of the deceased settlor.

14. The relevant clauses of the deed of settlement have to be read as a

whole and in proper perspective and cannot be read out of context, by

culling out stray phrases in isolation.

15. It is clearly mentioned in the deed that the settlor had two (02) sons

who were the trustees and also five (05) daughters, apart from his

wife, Smt. Saraju Bala Sarkar.

16. By subsequent reference to "the daughters" in the second page of the

deed of settlement, the daughters of the settlor have been clearly

referred to. Hence, it is only the daughters of the settlor and their

heirs who have been denied of the title to the property-in-question.

The expression "the daughters" cannot be construed to be generic in

nature but specifically qualifies the expression "five daughters" of the

settlor, who have been specifically mention in the earlier part of the

deed of settlement.

17. Thus, the said bar cannot he held to be applicable to all the

subsequent female heirs of the family for all posterity to come. In fact,

in the deed of settlement itself, the settlor explained that the said five

daughters were married and living with their respective husbands and

they were married at an enormous expense and that the settlor was

anxious to settle the premises no. 149/B, Vivekananda Road, to avoid

all disputes and differences among the sons, daughters and wife of the

settlor. Life interest was reserved in respect of the settlor and his

wife. However, subsequent to the demise of the settlor and his wife as

well as the sons of the settlor, namely, Nemai and Nilmoni, the

property would devolve on Sondhya and Atashi, their respective wives,

and their heirs.

18. The limited restrictions imposed on transfer of the property by Rekha

and Sondhya during the lifetimes of the settlor, his wife and sons

cannot be attributed omnibus connotation, as a restriction on all

female descendants in the family for successive generations.

19. Hence, although the five daughters of the settlor and their heirs were

deprived from the property, the rest of the heirs of the settlor were to

be taken care of. His wife Saraju Bala Sarkar was to have life interest

in the property, along with Nemai and Nilmoni, the sons of the settlor.

20. However, subsequent to the demise of the settlor, his wife and his two

sons, the property was to devolve on the heirs of the said sons.

21. It is evident from the genealogical table handed over by the petitioner

that Rekha and Atashi were respectively the wife and daughter of

Nemai, one of the sons of the settlor. Upon the demise of Nilmoni's

wife Sondhya (who died in the year 2018) and Nemai's wife Rekha

(who died on September 26, 2012), the other heirs of the said sons of

the settlor would inherit the property.

22. Thus, Atashi Saha, who was the daughter of Nemai, inherited the

property after the demise of her parents. On the other hand, the

plaintiff Somnath was one of the sons of Nilmoni (the other son of the

settlor). Hence, upon the death of Nilmoni, his share ought to have

devolved upon his wife Sondhya, daughter Tapashi and sons Somnath

and Sovon. Since Sovon was lost from the year 1995, presumption of

death of the said Sovon ought to be drawn in terms of Section 108 of

the Evidence Act, subject to the conditions stipulated therein being

satisfied.

23. Sondhya, the wife of Nilmoni, also died in the year 2018. Hence,

upon the demise of Nilmoni and Sondhya, their daughter Tapashi and

son Somnath were to inherit the share of Nilmoni. The share of Nemai

would devolve on Atashi, the opposite party no.1, upon the death of

his wife Rekha.

24. Thus, Somnath is only a co-sharer with Atashi and others, such share

of Somnath being restricted only to that on Nilmoni's. The opposite

party no.1, in any event, would inherit the share of Nemai and

thereafter Rekha, her parents and, hence, could not be labelled as a

licensee or trespasser in respect of the suit property.

25. As such, upon perusal of the deed of settlement, it is clear that there

is sufficient scope of doubt as to the construction of the same, vis-à-

vis the respective titles of the parties. Hence, the statements made in

the written statement, relied on by the plaintiff/petitioner, ipso facto

do not amount to unqualified admissions, sufficient to entitle the

plaintiff to a judgment on admission.

26. Although it is submitted on behalf of the petitioner that this court,

while considering the legality of an order refusing to reject the plaint

of a different suit, had observed that the plaint of the said suit ought

to be rejected since the relevant clauses in the same deed of

settlement were clearly decipherable on a plain reading thereof and

ultimately rejected the plaint, such order cannot be held to be a

precedent insofar as the matter before this court was rejection of

plaint under Order VII Rule 11 of the Code of Civil Procedure, which is

confined merely to an enquiry on a plain and meaningful reading of

the plaint. However, in case of Order XII Rule 6 of the Code, the

alleged admission relied on by the plaintiff, for getting a judgment on

admission, has to be unqualified and clear for the court to pass a

judgment under Order XII Rule 6 of the Code.

27. On the other hand, the order of this court dated September 23, 2019

passed in C.O. No. 3191 of 2019 cannot also operate as res judicata,

since the same was passed in respect of a different suit, where the

present opposite parties had not been impleaded and which arose in

connection with an interpretation of Order VII Rule 11 of the Code and

not Order XII Rule 6 thereof.

28. Thus, no clear admission has been disclosed in the present case to

have been made by the defendants/opposite parties in their pleadings,

sufficient to grant a judgment on admission in favour of the plaintiff.

The question of construction of the deed of settlement cannot be gone

into in detail while deciding an application under Order XII Rule 6 of

the Code of Civil Procedure, merely on the basis of the admitted

relationships between the parties, since the devolution of interest as

per the deed of settlement has scope of interpretation at the time of

hearing of the suit. Since an arguable case has been made out by the

parties in respect of such devolution of title upon a proper

interpretation of the deed, it cannot be said that there was any

unequivocal, clear and unambiguous admission on the part of the

opposite parties in their written statement, sufficient to satisfy the

tests of Order XII Rule 6 of the Code of Civil Procedure.

29. Accordingly, the trial court was justified in passing the impugned

order, rejecting the application of the petitioner under Order XII Rule

6 of the Code and relegating the issue to be decided at the time of

trial.

30. In such view of the matter, C.O. No.423 of 2021 is dismissed on

contest without any order as to costs, thereby affirming the order

impugned in the present revisional application.

31. Urgent certified copies of this order shall be supplied to the parties

applying for the same, upon due compliance of all requisite

formalities.

( Sabyasachi Bhattacharyya, J. )