Calcutta High Court (Appellete Side)

Smt. Chhabi Chowdhury vs The State Of West Bengal & Ors on 12 December, 2023

Author: Debangsu Basak

Bench: Debangsu Basak

                    IN THE HIGH COURT AT CALCUTTA
                     CIVIL APPELLATE JURISDICTION
                            APPELLATE SIDE

Present:
The Hon'ble Justice Debangsu Basak
              And
The Hon'ble Justice Md. Shabbar Rashidi
                          M.A.T. 1456 of 2023

                        Smt. Chhabi Chowdhury
                                   VS.
                     The State of West Bengal & Ors.

For the Appellant        : Mr. Debasish Chattopadhyay
                           Mr. Loknath Paul
                           Mr. Tirthankar Basu


For the State            : Mr. S. Bandopadhyay
                           Mr. Arka Kumar Nag



Heard on                 : December 12, 2023

Judgment on              : December 12, 2023


DEBANGSU BASAK, J.:-

1.    The appeal is directed against an order dated April 12, 2023

      passed by the learned Single Judge in W.P.A. 8152 of 2016. By

      the impugned order, the learned Single Judge dismissed the writ

      petition.

2.    Appellant before us is the writ petitioner. Appellant claims right,

      title and interest in respect of an immovable property which is a

      subject matter of a Lease obtained from the State Government, by
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     virtue of a probate granted in respect of the Will of the original

     allottee.

3.   Learned advocate appearing for the appellant submits that an

     immovable property was allotted in favour of the original allottee

     and that an agreement for Lease was entered into by and between

     the State and original allottee on July 12, 1953.       He refers to

     Clause 9(h) of the agreement and submits that such Clause

     permits transfer of the Lease by way of a Will. The original allottee

     executed a Will dated December 26, 2003 in respect of which, an

     application for grant of Probate was made. Probate was granted on

     April 28, 2014.     Subsequent thereto, the appellant applied for

     mutation.    The authorities did not allow the application for

     mutation.   Consequently, the appellant filed the writ petition in

     which the impugned order was passed.

4.   Relying upon (1997) 2 SCC 387 (State of West Bengal & Anr. Vs.

     Kailash Chandra Kapur & Ors.), he submits that the Lease Deed

     does not prohibit a transfer of the lease-hold property by a Will.

5.   Learned advocate appearing for the appellant submits that similar

     Clauses as that of subject lease were considered by the Supreme

     Court in Kailash Chandra Kapur & Ors. (supra) and it was held

     that there was no impediment in the original allottee transferring

     land allotted by way of a Will.
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6.    Learned Advocate appearing for the State submits that he is not in

      a position to dispute the proposition of law as laid down in Kailash

      Chandra Kapur & Ors.

7.    State of West Bengal issued a Notification inviting the public to

      apply for allotment of plots at Kalyani, Nadia on lease for 999

      years, subject to payment of premium. Gouri Dutta, original

      allottee applied for the same in 1963. Being satisfied, State agreed

      to allot the original allottee the plot bearing Plot No. B-4/28 at

      Kalayani, Nadia.

8.    The original allottee paid the amount required in terms of the

      allotment. An agreement for Lease for a period of 999 years was

      entered into between the original allottee and State of West Bengal

      on July 12, 1963.

9.    Clause 9(h) of such Lease Deed is as follows:-

            "9......(h) Should the Lessee/Lessees die after having made a
            bequest of the leasehold premises and the building to be
            erected thereon in favour of more than one person or die
            intestate having more then in such case the persons to
            whom leasehold premises with the buildings thereon be so
            bequeathed or the heirs of the deceased Lessee, as the case
            may be, shall hold the said property jointly without having
            any right to have a partition of the same by metes and
            bounds or they shall nominate one person amongst their
            member in whom the same shall vest."


10.   The original allottee left behind then a Will dated December 26,

      2003. The appellant before us applied for grant of Probate of such
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      Will and Probate in respect thereof was granted by the High Court

      on April 28, 2014 in PLA No. 291 of 2001.           Thereafter, the

      appellant applied before the authorities for mutation.        Such

      application was submitted on May 15, 2014 followed by a reminder

      on August 22, 2014. The respondent authorities, however, did not

process the application for mutation. Being aggrieved by the

silence of the respondent authorities, the appellant filed a writ

petition being W.P.A. 11567 (W) of 2015 which was disposed of by

the High Court on June 15, 2015 directing the Estate Manager to

consider and decide the request for mutation of the appellant, in

accordance with law, within a period of four weeks from the date of

communication of the order.

11. Pursuant to such direction, the Estate Manager passed an order

dated August 21, 2015 where he rejected the request for mutation.

Being aggrieved, appellant filed the writ petition in which the

impugned order was passed.

12. Similar Clause as that of 9(h) appearing in the Deed of Lease came

up for consideration before the Supreme Court in Kailash

Chandra Kapur & Ors. (supra). There, the Supreme Court held as

follows:-

"12. In view of the above-settled legal position, the question is whether the Governor is bound to recognise him. It is seen that clauses (7), (8) and (12) are independent and each deals with separate situation. Clause (7) prohibits sub-lease of the

demised land or the building erected thereon without prior consent in writing of the Government. Similarly, clause (8) deals with transfer of the demised premises or the building erected thereon without prior permission in writing of the Government. Thereunder, the restricted covenants have been incorporated by granting or refusing to grant permission with right of pre-emption. Similarly, clause (12) deals with the case of lessee dying after executing a Will. Thereunder, there is no such restrictive covenant contained for bequeath in favour of a stranger. The word "person" has not been expressly specified whether it relates to the heirs of the lessee. On the other hand, it postulates that if the bequest is in favour of more than one person, then such persons to whom the leasehold right has been bequeathed or the heirs of the deceased lessee, as the case may be, shall hold the said property jointly without having any right to have a partition of the same and one among them should alone be answerable to and the Government would recognise only one such person. In the light of the language used therein, it is difficult to accept the contention of Shri V.R. Reddy, that the word "person" should be construed with reference to the heirs or bequest should be considered to be a transfer. Transfer connotes, normally, between two living persons during life. Will takes effect after demise of the testator and transfer in that perspective becomes incongruous. Though, as indicated earlier, the assignment may be prohibited and the Government intended to be so, a bequest in favour of a stranger by way of testamentary disposition does not appear to be intended, in view of the permissive language used in clause (12) of the covenants. We find no express prohibition as at present under the terms of the lease. Unless the Government amends the rules or imposes appropriate

restrictive covenants prohibiting the bequest in favour of the strangers or by enacting appropriate law, there would be no statutory power to impose such restrictions prohibiting such bequest in favour of the strangers. It is seen that the object of assignment of the government land in favour of the lessee is to provide him right to residence. If any such transfer is made contrary to the policy, obviously, it would be defeating the public purpose. But it would be open to the Government to regulate by appropriate covenants in the lease deed or appropriate statutory orders as per law or to make a law in this behalf. But so long as that is not done and in the light of the permissive language used is clause (12) of the lease deed, it cannot be said that the bequest in favour of strangers inducting a stranger into the demised premises or the building erected thereon is not governed by the provisions of the regulation or that prior permission should be required in that behalf. However, the stranger legatee should be bound by all the covenants or any new covenants or statutory base so as to bind all the existing lessees".

13. Subject Deed of Lease is for a period of 999 years. It vests the

original allottee with various rights. The period of lease is such

that it would obviously outlast the natural lifetime, by today's

standards of the original allottee. Clause 9(h) of the Lease Deed for

the situation of devolvement of interest in the lease upon the death

of the original allottee. Since rights to property can be transferred,

on death, either by a Will or by the law of succession which

governs the allottee. Clause 9(h) deals with both of such

situations. It acknowledges that devolution of interest is possible

both by succession or by testament.

14. Clause 9(h) of the Deed of Lease under consideration also does not

prohibit the making of Will by the original allottee and the original