Calcutta High Court

Bharat Girdhardas Mansata & Ors vs Ashok Ramniklal Mansata on 12 September, 2023

                 IN THE HIGH COURT AT CALCUTTA
                 (Ordinary Original Civil Jurisdiction)
                             ORIGINAL SIDE


Present:

The Hon'ble Justice Krishna Rao



                            IA No: GA 6 of 2022

                            In CS 208 of 2018


                  Bharat Girdhardas Mansata & Ors.
                                  Versus
                       Ashok Ramniklal Mansata




           Mr. Debasish Kundu, Sr. Adv.
           M. Debnath Ghosh
           Mr. A. Kundu
           Mr. Aniket Chaudhury
           Mr. A. Kundu
           Mr. Biswaroop Mukherjee
                                      ... For the plaintiffs/petitioners.


           Mr. Rupak Ghosh
           Mr. Ayan Dutta
           Mr. Abhijit Sarkar
           Mr. Abhik Chitta Kundu
                                      ... For the defendant/respondent.

Hearing Concluded On : 10.08.2023

Judgment on           : 12.09.2023
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Krishna Rao, J.:


1.    The petitioners have filed the present application being G.A 6 of 2022

for appointment of Special Officer or Receiver or some other fit or proper

person with respect of the of the suit scheduled properties.


2.    The Petitioners and the Respondent are all the legal heirs and

representatives of Girdhardas Bhimji Mansata, who died intestate on 7th

July, 1998. Sri Girdhardas Bhimji Mansata died leaving behind his wife

Smt. Hira Girdhardas Mansata, his eldest son Ramniklal Mansata, second

son Chandrakant G. Mansata, third son Bharat G. Mansata and one

daughter Sraddha Mansata as his legal heirs and representatives, each

having share in the properties.


3.    During his lifetime, Girdhardas Bhimji Mansata, since deceased, had

purchased three immovable properties by paying valuable consideration.

The two properties amongst them are situated at 33, Dharamtalla Street

now renamed as "33, Lenin Sarani, Kolkata - 700013" and at 44, Mott Lane,

Kolkata - 700013," both the properties are directly adjoining one another

and were jointly purchased from the same seller vide a Deed of Conveyance

dated 16th November, 1962. The third property mentioned herein is located

at 10, Middleton Street, Western Portion, Kolkata - 700071, now

renumbered as 10B, Middleton Street, Kolkata - 700071, which was bought

via Deed of Conveyance dated 3rd December, 1962.


4.    The wife of Sri Girdhardas Bhimji Mansata, Smt. Hira Girdhardas

Mansata, died intestate on 23rd March, 2000 and upon her death her share
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in the assets and the properties left behind by her husband, Late

Girdhardas Bhimji Mansata devolved equally upon her children, namely

Ramniklal G. Mansata, Chandrakant G. Mansata, Bharat G. Mansata and

Sraddha Mansata.


5.    The said eldest son Ramniklal Mansata died intestate on 19th June,

2012, upon his death, his share in the assets and properties left behind by

his father, Late Girdhardas Bhimji Mansata and his mother Late Hira

Girdhardas Mansata, devolved equally upon his window Chandraprabha

Ramniklal Mansata, and his two sons and two daughters, namely, Upendra

R. Mansata, Ashok R. Mansata Varsha Sheth and Hemakshi Samtaney as

his sole legal heirs and/or representatives.


6.    Widow of the eldest son of Late Girdhardas Bhimji Mansata, Smt.

Chandraprabha Ramniklal Mansata, died on 4th August, 2017. She has left

behind a Will, as per the said Will, her share in the immovable properties

inherited by her after the demise of her late husband, Ramniklala

Girdhardas Mansata, devolved equally upon her two sons, namely, Upendra

R. Mansata and Ashok R. Mansata.


7.    Chandrakant G. Mansata, the second son of Late Girdhardas Bhimji

Mansata, died intestate on 22nd December, 2020 and upon his demise, his

share in the immovable properties inherited from his father, Late

Girdhardas   Bhimji   Mansata,    devolved     equally   upon   his   wife,   Smt.

Kadambari C. Mansata and his daughter Reenie Mansata as his sole legal

heirs and/or representatives.
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8.    The shares of the parties in the suit properties, being the properties

left behind by the Late Girdhardas Bhimji Mansata and wife of the deceased

Late Hira Girdhardas Mansata are described hereinbelow:

                   "The petitioner no. 1 :   25%
                   The petitioner no. 2A :   12.5%
                   The petitioner no. 2B :   12.5%
                   The petitioner no. 3 :    25%
                   The petitioner no. 4 :    7.5%
                   The petitioner no. 5 :    5%
                   The petitioner no. 6 :    5%
                   Respondent :              7.5%
                                             ---------

100%"

9. Pursuant to the issuance of Succession Certificate dated 8th

September, 2003, the bulk of the value of the movable asstes/shares

specified therein was duly transmitted within the lifetime of Ramniklal

Girdhardas Mansata to the legal heirs of Late Girdhardas Bhimji Mansata,

as provided under law. A small part of the value of movable assets/share is

yet to be transferred as a part of the instant proceedings.

10. The aforesaid immoveable properties purchased by Late Girdhardas

Bhimji Mansata had been assessed to tax in the records of the Kolkata

Municipal Corporation. In the year 2009, following the demise of Girdhardas

Bhimji Mansata and his wife, Hira Girdhardas Mansata, their sole legal

heirs and successors have authorised petitioner no. 1 to apply to the

Kolkata Municipal Corporation for the mutation and separation of the

premise at 10, Middleton Street and also the names of Ramniklal

Girdhardas Mansata ,Bharat G. Mansata, Chandrakant G. Mansata and

Sraddha Mansata were to be substituted as the lawful owners of the said

premises in place and stead of their father's name Late Girdhardas Bhimji

Mansata.

11. On 12th May, 1980, the Tax Recovery Officer, the Income Tax

Department, Kolkata, had attached the properties at 44, Mott Lane and 33,

Dharamtalla Street for the payment of certain tax liabilities and on 31st July,

1980, the said Tax Recovery Officer attached the property at 10, Middleton

Street as well. As per orders dated 9th April, 2015, the Income Tax

Department has raised an outstanding demand of Rs. 19,98,686/- as

interest payable under Section 220 (2) of the Income Tax Act, 1961 and Rs.

5,33,192/- as interest payable under Section 31(2) of the Wealth Tax Act,

aggregating to a total sum of Rs. 25,31,878/-.

12. The dispute had arose between the petitioner and the respondent after

the demise of the eldest son of Late Girdhardas Bhimji Mansata, Late

Ramniklal Mansata. The plaintiffs have jointly decided to do partition of the

properties in question and also to sell of any of the inherited immovable

properties for clearance of the statutory dues of Late Girdhardas Bhimji

Mansata. In pursuance of the same, the petitioners have sent various letters

to the Respondent on 11th August, 2017, 30th August, 21st September, 2017

and 26th December, 2017.

13. The respondent had replied to the letters dated 11th August, 2017 and

30th August, 2017, on 25th August, 2017 and on 7th September, 2017, where

the respondent had denied to sell any of the properties inherited by the

respondent after the death of Late Girdhardas Bhimji Mansata. It appears

from the records that the respondent has not replied to the letters of

petitioners' dated 21st September, 2017 and 26th December, 2017.

14. Thereafter at the time of the filing of the plaint, the respondent had

not confirmed his willingness to cooperate in clearing the outstanding tax

liabilities of Late Girdhardas Bhimji Mansata. However, in between

September' 2018 and December' 2018, various emails were exchanged

between the parties, wherein the respondent in his last email dated 10th

December, 2018, stated "I confirm my full cooperation in selling and/or

amicable causing partition of any/all.....". Also in the same email the

Respondent stated "I am fully committed to agreeing to what you all decide

regarding "Dharamtalla Property".

15. There are number of occupants, including unauthorised occupants,

not belonging to the families of either petitioners or the respondent in the

two premises at 44, Mott Lane and at 33, Dharamtalla Street (Lenin Sarani).

16. The property at 10, Middleton Street (renumbered as 10B, Middleton

Street) is entirely in the joint possession of the petitioners and the

respondent. The South-East portion is being used without any payment by

"Drive Inn Restaurant", a partnership firm in which the petitioner No. 4 and

his younger brother, the respondent are the partners holding equal shares.

The ground floor in the North-Eastern portion of the said premises is being

used to run 'Earthcare Books', a publisher and bookstore, which is a

proprietary concern of Vinita Mansata, wife of petitioner No.1 herein. The

entire first floor area in the building on the northern portion of this property

is the residence of petitioner No.1 and his family. About 40-45% of the entire

area of the Middleton Street property is open and common across/driveway

path, common pump house, and common parking space for family members

and customers/clients.

17. On 28th January, 2019, the Plaintiffs have filed a Petition being GA

No. 187 of 2019, wherein they prayed for sale of the properties, situated at,

33, Dharamtalla Street (Lenin Sarani) and 44 Mott Lane for payment of

statutory liabilities and disbursement of the surplus sale proceeds to the

legal heirs as per their respective entitlements.

18. By an order dated 28th January, 2019, this Hon'ble Court allowed the

sale of some properties and also appointed a Special Officer to supervise the

sale of the Premises at 33, Dharamtalla Street (Lenin Sarani) and 44, Mott

Lane on as in where is basis.

19. The respondent, thereafter filed an application being GA No. 472 of

2019, praying for an order of recalling and/or modifying of the order dated

28th January, 2019. In the application the defendant offered payment of the

statutory dues amounted to Rs. 25,21,878/- to the concerned Income Tax

Authorities by way of a demand draft within a fortnight.

20. On 19th March, 2019, the application filed by the respondent being GA

472 of 2019 was heard and vide an order dated 19th March, 2019, the

respondent was allowed to pay a sum of Rs. 17,50,00/- by way of a demand

draft as a part payment towards the income tax dues. It was also submitted

by the Learned Counsel appearing on behalf of the respondent that the

balance amount will be paid within one week from the date of such order.

Therefore the order dated 28th January, 2019 was modified on 19th March,

2019, and the sale of the properties situated at 33, Dharamtalla Street

(Lenin Sarani) and 44, Mott Lane was then stopped.

21. On 23rd March, 2022, the Chief Manager (Revenue) of Kolkata

Municipal Corporation issued a demand notice for a sum of Rs. 8,11,876/-

in respect of the property, namely 10B, Middleton Street. After issuance of

the said demand notice, the petitioner no. 1 found that a substantial part of

the assessed dues was on account of commercial usage of 'Drive Inn' that

was run by the respondent as one of the partners. On 21st May, 2022, the

petitioner on perusal of the said demand notice by KMC, sent an email to

respondent for payment of the said due and it was also pointed out by the

petitioner no. 1 that the premise at 33, Lenin Sarani, was in unused

condition and sale of such property can be of help to pay off the dues to the

KMC.

22. Consequently, the petitioner no.1, had sent another email to the

respondent on 22nd August, 2022, on the same issue but there was no

response from the respondent regarding the emails.

23. It is admitted by the respondent that the premises nos. 33, Lenin

Sarani and 44, Mott lane are occupied by third party outsiders, who all are

occupying the said premises illegally.

24. The respondent stated that he has approached the petitioners several

times to initiate proceedings regarding fixation of rent before the Learned

Rent Controller, to which the petitioners did not respond.

25. It is further submitted by the respondent that two rooms at premise at

44, Mott Lane is under the occupation of the respondent, but the

respondent has no knowledge whether those two rooms have been

encroached or trespassed as on date as the premises has not been visited

for the last few years. The respondent had approached the petitioners to

initiate legal proceedings for recovery of possession and mesne profit/rent,

but the petitioners showed no interest regarding that at all.

26. The respondent pointed out that there had been proceedings initiated

by a third party for indirectly attempting to dispute the title of the parties in

the premises nos. 33, Lenin Sarani and 44, Mott Lane.

27. The respondent submitted that with regard to the premises No.10B

Middleton Stree, the respondent is in part possession of the property and is

running 'Drive Inn' from such premises in partnership with the petitioner

no. 4. The respondent submitted that the wife of the petitioner no. 1 owns a

bookstore, namely "Earthcare", but they have neither paid any rent

regarding the usages of the said part of the property nor they have

contributed for the electricity expenses and/or maintenance and upkeep in

any way.

28. The respondent stated that he had filed a separate plaint being C.S.

No. 212 of 2019, mentioning that, the respondent had been maintaining the

property at Middleton Street for the past 35 years, therefore the respondent

is entitled for higher share in the said premises.

29. Heard the learned Counsels appearing on behalf of both the parties

and perused the documents on record. This Court finds that at this stage

partition of the mentioned properties situated at 33, Dharamtalla Street

(Lenin Sarani), 44, Mott Lane & 10, Middleton Street (which is now

renumbered as 10B, Middleton Street) is not possible since the shares of the

parties have not been decided as yet and no preliminary decree has been

passed to that effect till date.

30. It appears from the suit filed by the respondent being C.S No. 212 of

2019, that the preliminary decree declaring the shares cannot be passed

since the respondent has disputed his shares and the shares of the other

parties in the present suit, where the respondent seeks higher shares of the

property maintained by the respondent at Middleton Street.

31. It is admitted by both the parties that the premises No. 33, Lennin

Sarani and 44, Mott Lane are occupied by the third party outsiders who

have been occupying various portion of the premises without paying any

rent. It is also admitted fact that none of the parties have taken any steps

for collection of rent or initiation of any proceedings against the occupier of

the said properties.

32. It is also admitted that none of the parties have any knowledge about

the encroachers who are in illegal occupation of premises No. 33 Lenin

Sarani and 44, Mott Lane. The respondent in his affidavit also admitted that

in the premises No. 44 Mott Lane which are under the occupation of the

respondent but the respondent had no knowledge whether those have been

encroached or trespassed by the illegal occupier as he has not visited the

said premises from the last few years.

33. It reveals from record that the parties to the suit have not taken any

steps for initiation of any proceeding against the illegal occupier of the

premises No. 33, Lenin Sarani and 44, Mott Lane for their eviction, recovery

of occupational charges or mesne profit but on the other hand the third

parties have initiated proceedings disputing the title of the parties in the

premises No. 33, Lenin Sarani and 44, Mott Lane. None of the parties have

informed this Court what is the stage of the said proceedings and whether

the parties to the suit have taken any steps in the said proceedings.

34. In the premises No. 10B Middleton Street, the respondent is in part

possession of the property and is running the business of 'Drive Inn' from

such premises in partnership with the petitioner no.4. The wife of the

petitioner no.1 owns a bookstore, namely "Earthcare" in the said premises.

35. It also reveals for the record that the Kolkata Municipal Corporation

has also issued demand notice with respect of the suit properties which is

required to be paid by the parties to the suit but the same has not been

paid.

36. Considering the facts and circumstance mentioned above, this Court

is of the view that for proper preservation, maintenance, payment of dues to

the authorities and for collection of occupational charges from the occupier

of the suit property a Special Officer should be appointed.

37. Accordingly, Shri Mukunda Lal Sarkar, Advocate, Bar Association

Room No. 13, Mobile No. 907345013, is appointed as Special Officer to do

the following acts :

"a. To inspect the suit properties and to ascertain the details of the person/persons who are in occupation of the property and whether the occupier/occupiers are paying the monthly rent or not.

b. If the occupier/occupiers are not paying/depositing the monthly rent to collect monthly rent as per present market rate.

c. To ascertain whether any tax/taxes or any other charges is/are due to be paid to any authority.

d. What is the present condition of the suit properties.

e. To collect occupational charges from the occupier regularly and to maintain proper account.

f. To open a bank account in the State Bank of India, High Court Brach and to deposit the monthly occupational charges after deducting if any charges are required to be paid to any authorities.