Calcutta High Court
Sunita Ghosh vs Ranjan Mitra & Ors on 7 November, 2024
IN THE HIGH COURT AT CALCUTTA
(Ordinary Original Civil Jurisdiction)
ORIGINAL SIDE
Present:
The Hon'ble Justice Krishna Rao
C.S.O.S. No. 2 of 2023
Sunita Ghosh
Versus
Ranjan Mitra & Ors.
Mr. Anuj Singh
Mr. Ratul Das
Ms. Anshumala Bansal
Mr. Richik Chowdhury
... For the plaintiff.
Mr. Deepan Kumar Sarkar
Mr. Soumalya Ganguli
Ms. Deepti Priya
... For the defendant nos. 1 and 2
Ms. Sulagna Mukherjee
Mr. Suman Dey
... For the defendant no. 3
Hearing Concluded On : 03.10.2024
Judgment on : 07.11.2024
2
Krishna Rao, J.:
1. The plaintiff has filed the present Originating Summons Suit seeking
clarification/determination of the following questions:
a. Whether, in view of the fact that the Ranjan Mitra
Trust Fund can neither take possession of the said
premises nor get the said premises transferred in
its favour, the Executor/Plaintiff can sell the said
premises to an intending buyer and remit the sale
proceeds thereof in favour the said Trust for the
benefit of the Defendant No.1 during his lifetime,
and thereafter for the benefit of the Defendant no.
2?
b. Whether in order to achieve the ultimate intention of
the said Will which unequivocally provides that the
said premises would go to the Ranjan Mitra Trust
Fund for the personal use of the Defendant no.1,
the said property could be sold pursuant to the
orders of this Hon'ble Court?
c. Whether Clauses 11 to 13 of the said Will which
provides for retention of the said premises forever
with the Ranjan Mitra Trust Fund with no right of
the trustees to sale the same, are void for
remoteness, uncertainty and offend the rule
against perpetuity?
d. Whether in view of the present circumstances, the
Executor/Plaintiff is entitled to enter into an
agreement or execute or join in the conveyance of
the said premises, for the ultimate benefit of
Defendant no.1?
2. Manjula Mitra, was the owner of Flat No. 10A, Naba Kailash, 55/4,
Ballygunge Circular Road, Kolkata - 700 019. By her Last Will and
Testament dated 12th October, 2002, she has bequeathed the said flat
in favour of Ranjan Mitra Trust Fund. In the said Will, the plaintiff is
one of the Executrixes and the defendant nos. 1 and 2 are the
beneficiaries. In the said Will, it is clarified that the Trustees shall not
have power to sell the said flat. Manjula Mitra died on 18th June,
2018. After her death, the plaintiff being one of the joint executrix of
the Last Will and Testament had applied for grant of probate being
PLA No. 39 of 2020 and by an order dated 24th December, 2021, the
Testamentary Court granted probate of the Will in favour of the
plaintiff.
3. The flat constitutes within the defendant no. 3 society and after
obtaining probate, the plaintiff has enquired with the defendant no. 3
for transfer of share of the Testatrix in favour of the Ranjan Mitra
Trust Fund as per the said Will and probate granted by this Court but
it was informed by the defendant no.3 to the plaintiff that transfer of
membership of share in respect of the flat cannot be effected in favour
of Ranjan Mitra Trust Fund in terms of Clause 6 of the bye-laws of the
defendant no.3 society.
4. The plaintiff is settled at United States of America and the defendant
nos. 1 and 2 are settled at United Kingdom and there is no immediate
intent to visit Calcutta and to occupy the said flat permanently. The
defendant no.1 being the nominee of the share of the Testatrix in the
said flat, requested for transfer in the Ranjan Mitra Trust Fund but
the bye-laws of the defendant no.3 would require him to declare that
he has a requirement of residential accommodation in the said flat or
that he would permanently reside in the State of West Bengal or that
he would reside in the State of West Bengal for a period of one year
from the date of application for membership in the defendant no.3
society.
5. Mr. Anuj Singh, Learned Advocate representing the plaintiff submits
that the provisions of bye-laws of the defendant no.3 society directly
impede the plaintiff from discharging her obligations as per the Last
Will and Testament of the Testatrix. Mr. Singh submits that the
provisions of the bye-laws of the defendant no.3 are squarely
inconsistent with the intention of the Testatrix contemplated in the
Last Will and Testament. He submits that the provisions of bye-laws of
the society would render the said Will infructuous to the extent of
discharge of obligations in respect of the flat and further deprive, the
defendant no.1 being one of the sons of the Testatrix and ultimate
beneficiary under the said Will with respect to the flat.
6. Mr. Singh submits that inasmuch as the bye-laws restrict devolution
of the flat in favour of Ranjan Mitra Trust Fund, the ultimate intention
of the Will to take possession of the flat by Ranjan Mitra Trust Fund,
for the personal use of the defendant no.1 shall remain unsatisfied. He
submits that in view of the deadlock, unless the flat is disposed of by
sale and the proceeds therefrom are deposited in the Ranjan Mitra
Trust Fund, the intention of the Testatrix under the Will cannot be
satisfactorily achieved.
7. Mr. Singh also submits that in addition to the restriction imposed by
the bye-laws of the defendant no.3 society, Clause 11 of the Will limits
the Trustees of the Ranjan Mitra Trust Fund, including the plaintiff
from alienating, transferring and selling the flat to any intending
purchaser, due to which the plaintiff cannot take necessary steps to
sell the flat and remit the proceeds in the account of the Trust for the
benefit of the Trust.
8. Mr. Singh submits that as per Clause 11 of the Will, it limits the
plaintiff from selling the flat, and thus the plaintiff has filed the
present Originating Summons Suit for opinion from this Court.
9. The defendant no.1 and defendant no.2 have entered appearance in
the suit and have filed their separate affidavits by giving consent to the
Originating Summons Suit filed by the plaintiff and also prayed for
allowing the prayer made by the plaintiff in the present suit.
10. The Defendant no.3 society has also filed its affidavit-in-opposition by
objecting to the prayers made by the plaintiff.
11. Ms. Sulagna Mukherjee along with Mr. Suman Dey, Learned
Advocates representing defendant no.3 submits that the West Bengal
Co-Operative Societies Act, 2006, is a special enactment which
provides for functioning of all the Co-operative Societies including
housing societies like the defendant no.3. She submits that in Chapter
VIII, certain special provisions governing the functions of the housing
societies. She submits that Section 87 read with Section 63 of the Act
lays down the criteria to become eligible for membership of housing
society.
12. Ms. Mukherjee submits that the Act does not contemplate a trust to be
eligible for membership of a housing co-operative society. She submits
that the sale of the flat, in the manner intended by the plaintiff being
contrary to the Act. She further submits that in the Will itself, the
intention of the testatrix was that the trustees shall have no power to
sell the flat.
13. Heard the Learned Counsel for the respective parties, perused the
materials on record. Manjula Mitra, the testatrix was the owner of the
Flat No. 10A, Naba Kailash, 55/4, Balllygunge Circular Road, Kolkata
- 700 019. The said flat constitutes within the defendant no. 3 society.
The Society is having its own bye-laws registered under the West
Bengal Co-Operative Societies Act, 2006.
14. Manjula Mitra being the member of the defendant no. 3 society owns
Flat No. 10A in the Society. During her life time had executed her Last
Will and Testament dated 12th October, 2002 by appointing the
plaintiff as Executrix of her Last Will. The Testatrix has bequeathed
Flat No. 10A, Naba Kailash, 55/4, Ballygunge Circular Road to the
"Ranjan Mitra Trust Fund" Trustees and empowered the Trust to take
possession of the said flat for the personal use of Ranjan Mitra or to
rent out the property and remit to him, the monthly rental for his use
during his life time. In the said Will, it is clarified that the Trustees
shall not have power to sell the said flat.
15. In the said Will, it is also provided that if Ranjan Mitra dies without
issue, the said flat and the income therefrom will pass on and vest to
her other son Protap Mitra absolutely, or if he predeceased before her
to his child or children in equal share.
16. After the death of the Testatrix, the plaintiff being the Executrix has
obtained probate of the Last Will and Testament dated 12th October,
2002. Now, the following difficulties arose for transfer of the flat in the
name of Ranjan Mitra Trust Fund Trustees as per Will dated 12th
October, 2002 and the probate granted by the Testamentary Court:
a. In the Will in Clause 11, it is mentioned that the Trustees
shall not have power to sell Naba Kailash Property.
b. Clause 6 of the Bye Laws of the Naba Kailash Co-Operative
Housing Societies Ltd. reads as follows:
"Any person permanently residing in the West
Bengal and intend to settle down at 55/4,
Ballygunge Circular Road, permanently joining in
the application for registration of the Society or
subsequently admitted to membership after
registration in accordance with rules and bye-laws
shall be a member of the Society. Provided no
person shall be admitted as member without
permission of the Registrar after registration of the
Society. Provided further that no money in any form
shall be collected from any holding member whose
membership has not been approved by the
Registrar."
c. Clause 7 of the Bye-Laws of the Naba Kailash Co-Operative
Housing Societies Ltd. reads as follows:
"No person shall be admitted as a member of
the society who already owns a house/flat or a
building site within the village, the municipal area
or the city or town, as the case may be, in which
the society has undertaken a project in his own
name or in the name of any of his dependents or
member of his family or whose needs of a house or
a tenement or a plot in the opinion of the Managing
Committee are not considered pressing or
deserving or who has failed to furnish full or
accurate information about the
house/tenement/plot owned by him. No person
shall again be admitted as a member of the society
who does not permanently reside in West Bengal or
who does not settle down in West Bengal
permanently.
Every member and every person intending to
become a member shall file an affidavit, declaring
his address and the particulars of building or
buildings house or houses, flat or flats, tenement or
tenements and land or lands owned by him or by
any member of his family in such form as may be
prescribed."
d. Sections 63 and 87 of the West Bengal Co-operative Societies Act,
2006, reads as follows:
"63. Eligibility for membership of Co-
operative society.
(1) Subject to the by-laws, the following persons
shall be eligible for membership of a Co-operative
society :-
(a) an individual competent to contract under
section 11 of the Indian Contract Act, 1872 (9 of
1872) and a permanent resident of India;
(b)any other Co-operative society;
(c)the State Government;
(d)a self-help group;
(e)any financing bank:
Provided that a student who has not attained the
age of majority according to the law shall be
eligible for membership of Co-operative society
firmed in an education institution to which he
belongs.
(2) An employee of the Co-operative society who is
eligible under sub-section (1) to be its member shall
on an application made by him be admitted as a
member of such Co-operative society but shall have
no right to vote at an election of or for being elected
as a director of the board or delegate to any other
Co-operative society:
Provided that an employee member of an
engineers, labour, industrial, service, transport and
the like Co-operative societies shall have right to
vote at an election of or for being elected as a
director of the board or delegate to any other Co-
operative society.
(3) Notwithstanding anything to the contrary
contained elsewhere in this Act, a Co-operative
society may admit [an application] any person, any
association or body of persons (whether
incorporated or not) as a nominal member who
shall not be entitled to any share in any form in the
assets or profit of the Co-operative society and
shall not be eligible to be elected as director of the
board and shall have no right to attend the general
meeting of the Co-operative society but shall have
such right and privilege and shall be subject to
such liabilities of a member as may be specified in
the by-laws.
(4) Notwithstanding anything to the contrary
contained elsewhere in this Act, a Co-operative
society may admit the joint members and may
issue a single share in their joint names. Such
members shall, except in such cases as may be
prescribed, ordinarily enjoy privilege jointly, but
voting right shall be exercised by the first named
member and in his/her absence by the other
member.
(5) Notwithstanding anything contained in sub-
section (1), no Central Co-operative society shall
have right to admit individuals to its membership
otherwise than as nominal members in terms of
sub-section (3) and the existing individual members
shall be deemed to be nominal members for the
purpose of this Act:
Provided that the existing individual members of a
Central Co-operative society shall have right to
withdraw, after serving three months notice on the
Co-operative society concerned, the share capital
contributed by such members within one month
from the date of acceptance of such withdrawal
and the concerned Co-operative society shall
refund the same to such members after deduction
of the debts, if any, due to the concerned Co-
operative society from such members.
87. Eligibility for membership of housing
Co-operative society.
(1) In addition to the requirements under section
63, an individual shall be eligible for membership
of a housing Co-operative society, if-
(a) he is a citizen of India or a non-resident Indian;
(b) he is no a member of any other housing Co-
operative society in West Bengal;
(c) he or any member of his family does not own
any plot of baste land, house or flat within the local
limits of any municipal corporation or municipality
or town or any gram Panchayat or any notified
area authority where the housing Co-operative
society is situated other than the one in relation to
which the membership of a housing Co-operative
society is applied for by him under this section;
(d) he is a permanent resident of West Bengal or
intends to reside in West Bengal permanently
within a period of one year from the date of
application;
(e) he has genuine need for housing or additional
accommodation from Co-operative society; and
(f) he has not entered into any contract with the
housing Co-operative society in the matter of any
work constructional or otherwise relating to a
project of the Co-operative society.
(2) No person shall be admitted as a member or
function as an organiser of a housing Co-operative
society until he has made a declaration to be sworn
by him before an Executive Magistrate or judicial
Magistrate in accordance with the requirements
specified in clauses (a) to (f) of sub-section (1) :
Provided that if such declaration is
subsequently found to be false in whole or in part,
it shall be an offence punishable under this Act."
17. The defendant no.1 has been residing at London in United Kingdom
and the defendant no.1 intends to continue his residence therein, to
remain close to the defendant no. 2 as his only next of kin. The
defendant no.1 has not visited the said premises since the demise of
the testatrix and has no intention to visit or occupy the same for his
personal use.
18. The Testatrix has empowered and authorized the Ranjan Mitra Trust
Fund Trustees to take possession of the flat for the personal use of
Ranjan Mitra, the defendant no.1 or to rent out the property and remit
to him monthly rental for his use during his life time.
19. The defendant nos.1 and 2 have filed their affidavit which reads as
follows:
"2. The Plaintiff has filed the instant
Originating Summons Suit being C.S. OS No. 2 of
2023 ("originating summons") before this Hon'ble
Court seeking, inter alia, the permission of this
Hon'ble Court to sell Flat no. 10A, Naba Kailash,
55/4, Ballygunge Circular Road, Kolkata 700
019 (hereinafter referred to as the "said premises"),
owned and possessed by the Testatrix during her
lifetime so that the proceeds thereof may be
remitted to the Ranjan Mitra Trust Fund created for
my benefit. I am consenting to the said originating
summons and the reliefs sought therein.
3. 1 say that the said premises was
bequeathed to the Ranjan Mitra Trust Fund vide
the last Will and Testament dated October 12,
2002, of Manjula Mitra, since deceased (hereinafter
referred to as the "Testatrix") so that it could be
utilized for his benefit. The said premises is part of
a co- operative society, namely Naba Kailash Co-
operative Housing Societies Limited, whose Bye-
Laws do not permit Ranjan Mitra Trust Fund to
assume membership thereof since Ranjan Mitra,
my brother, does not intend to reside in the said
premises permanently. It is a fact that at the
material time, Ranjan Mitra used to reside in the
said premises with our mother, the Testatrix during
her lifetime.
4. However, in light of the change in
circumstances, I believe my brother's interests will
be better served if the said premises is permitted to
be sold by this Hon'ble Court and the proceeds
thereof remitted to any account maintained by the
Ranjan Mitra Trust Fund. I believe that if the reliefs
sought in the originating summons are granted, the
object of the last Will and Testament dated October
12, 2002 of the Testatrix will be duly achieved. I
believe that the Ranjan Mitra Trust Fund is being
and shall be operated to Ranjan Mitra's benefit.
5. I humbly pray that the reliefs sought in the
said originating summons may kindly be granted
by this Hon'ble Court."
20. The plaintiff being the executrix and the defendant no.1 and 2 being
the beneficiaries of the Last Will and Testament dated 12th October,
2002 have taken decision to sell the flat and the sale proceeds would
be remitted in the account of Ranjan Mitra Trust Fund for the benefit
of the Trust.
21. The testatrix has bequeathed the flat to the Ranjan Mitra Fund
Trustees. The flat constitutes within the defendant no. 3 society. The
society is governed under its bye-laws. To become member of the
Society, condition of bye-laws of society is to be fulfilled. The bye-laws
relied by the society is registered under the West Bengal Co-operative
Societies Act, 2006. To become a member of society permission of
Registrar is required. It is also provided that no person shall again be
admitted as a member of the society who does not permanently reside
in the West Bengal or who does not settle down in West Bengal
permanently.
22. As per Section 87 (d) of the Act of 2006 "he is a permanent resident of
West Bengal or intends to reside in the West Bengal permanently
within a period of one year from the date of application".
Sub-Section (2) of Section 87 provides that "no person shall be
admitted as a member of function as an organizer of a housing co-
operative society until he has made a declaration to be sworn by him
before an Executive Magistrate or Judicial Magistrate in accordance
with the requirement specified in clauses (a) to (f) of sub-section (1)".
23. The defendant no.1 used to reside in the said flat with his mother
during her life time now neither the plaintiff, being the executrix nor
the defendant nos.1 and 2 being the beneficiaries are residing in the
said flat or in State of West Bengal. It is also not possible for the
defendant no.1 to reside permanently in the West Bengal within a
period of one year from the date of application and thus it is not
possible for the defendant no.1 to affirm an affidavit in terms of sub-
section (2) of Section 87 of the West Bengal Co-Operative Societies Act,
2006.
24. In the case of Damodar Prasad Ganeriwalla and Another Vs.
Dwarka Prasad Ganeriwalla reported in 2014 SCC Online Cal
8430, the Coordinate Bench of this Court held that :
"I must not omit to mention that the trustees,
under the Deed of trust do not have the right to sell
the property. That is why they have come up before
this Court to sell the property.
I am firmly of the opinion that the income from
the property does not match the value of the
property and that the purposes of the trust would
be realized only upon sale of the property. After all,
it is a private trust for the welfare of the
beneficiaries, some of whom are also trustees."
25. In the case of Sayantan Dey and Another Vs. Ruma Ghosh and
Others reported in 2019 SCC Online Cal 9111, another Coordinate
Bench of this Court held that:
5. The Will has created diverse interest in
favour of the legal heirs of the said deceased who
are beneficiaries under the Will. The wife was given
the life estate and after her death to his son. The
son is also having a life estate with regard to the
western portion of the property. The testator under
the Will did not want any of the legal heirs to sell,
mortgage or charge the said property during their
lifetime. It was in the nature of a trust by which the
legal heirs are the beneficiaries. The said trust
would automatically come to an end on the death of
the legal heirs. However, if a legal necessity is
made out then the beneficiaries of the Will can
apply to the Court for an opinion of advice for sale
and/or encumbrance of the property which would
be beneficial for the beneficiaries of the Will and/or
the trust as the case may be. Although in
interpreting a restrictive clause in a trust deed of a
debuttar estate in Hunooman Pershad's
case reported at (1854-57) 6 Moore's LA. 393,
Knight Bruce, L.J., observed that right of alienation
can be exercised rightly in the case of need or for
the benefit of the estate and, in another decision
in Ramchandraji v. Lalji Singh reported in AIR 1959
Pat 305, the Patna High Court construed a clause
against alienation of properties by the Shebait in a
deed of endowment by observing that it would not
be in the interest of the institution to deprive the
Shebait of the power of alienation in case of
necessity or benefit, the same principle can be
safely applied in the instant case as an advice to
the applicant in favour of alienation
notwithstanding the wishes of the testator,
primarily on the ground that it would benefit the
beneficiaries under the Will and the original clause
against alienation in the present context if
construed against the beneficiary, would defeat the
object and purpose of the Will.
26. In the case of Bapuji Rustomji Kerawalla Vs. Haji Esmail Haji
Ahmed reported in 1921 ILR (Bom) Vol XLVI 694, the Bombay High
Court held that:
"This particular case falls exactly between the
two cases in Vesey on the one hand, and the case
in 9 Simons on the other. There was a clear
intention on the part of the testator that his nephew
should not sell or alienate the property during his
life-time. On the other hand there was an equally
clear intention that the nephew should have the
power to appoint by deed or writing as well as by
Will, so that he donee took an absolute estate, and
the restraint on alienation must be considered as
having no effect so as to detract from the gift of the
absolute estate. I think, therefore, in spite of these
words of restraint in Clause 12, the nephew was
empowered to appoint by deed or writing in his life-
time to himself and therefore he has the power to
convey the absolute estate.
The result must be that to the first question the
answer is that the plaintiff can either convey direct
to the defendant and so give him a good title or he
can first appoint to himself and then convey. The
second question is unnecessary in view of the
answer to the first question."
27. In the present case, the testatrix has bequeathed the flat to the Trust
for the personal use of defendant no.1. The testatrix under the Will did
not want any of the trustees to sell the flat. The defendant no.1 is not
in a position to enjoy the property as per Will of the testatrix due to
change of circumstances. The plaintiff being the executrix and the
defendant no.1 and 2 being the beneficiaries are intending to sell the
property and will remit the entire sale proceeds in the account of the
Trust for the benefit of the Trust.
28. Considering the above, this Court is of the opinion that if the
beneficiaries are not in a position to utilize the property and to take
the benefit of the property bequeathed to the Trust, the purpose would
be served if the plaintiff being the executrix of the Will to allow to sell
the property and to remit the total sale consideration in the account of
the Trust for the benefit of the Trust.
29. As regard to the transfer of the flat in the name of the defendant no.1
as per the Will and the provisions of bye-laws of the society and
Sections 87 and 63 of the Act of 2006, the plaintiff has informed this
Court that one of the proposed purchasers, namely, Kushal Patel has
made an offer of Rs.1,67,50,000/- for the said flat. The plaintiff has
also filed a supplementary affidavit wherein it reveals that as per circle
rate the market value of the property is Rs. 1,57,89,233/- and as per
surveyor report, the market value is Rs. 1,60,90,000/-.
30. At the time of hearing of the case, Learned Counsel for the defendant
no.3 also submitted that if this Court allows the plaintiff to sell the
property, the defendant no.3 may also be given liberty to search the
proposed purchaser who may offer best price to purchase the said flat
and the propose purchaser shall also fulfill all the criteria in terms of
bye laws of the Society and Act of 2006.
31. Taking into consideration all the aspect, this Court is of the opinion
that:
i. The plaintiff shall inform the defendant no.3
with regard to the proposed purchaser of the
flat with all details and on receipt of the
details of the proposed purchaser, the
defendant no.3 shall be at liberty to enquire
whether the proposed purchaser full fills all
the provisions of bye laws of the society and
Act of 2006 for transfer the flat in the name of
proposed purchaser.
ii. If the proposed purchaser fulfills all the
provisions of the bye laws and Act of 2006,
the defendant no.3 shall immediately take
appropriate steps for transfer of flat in the
name of proposed purchaser.
iii. The proposed purchaser shall cooperate with
the plaintiff as well as the defendant no.3 for
the purpose of transfer of flat in his/her name.
iv. if any proposed purchaser offers best price to
purchase the flat to the defendant no.3 then
the price offered to the plaintiff by the
proposed purchaser and the said proposed
purchaser fulfills all the criteria, the defendant
no.3 shall informed to the plaintiff and the
plaintiff will offer to sell the said flat to the
proposed purchaser who has approached the
defendant no.3 to purchase the flat subject to
payment of full amount to the plaintiff.
v. The plaintiff and the defendant no.3 shall
finalize the name of proposed purchaser
within four weeks from date. On finalizing the
name of purchaser, the defendant no.3 shall
complete the process for transfer of flat in the
name of the purchaser within four weeks
thereafter.
vi. If the transfer process is completed and the
plaintiff receives the total sale consideration,
the plaintiff shall remit the total sale
consideration in the account of the Trust
namely Ranjan Mitra Trust Fund for the
benefit of the trust."
32. This Court answer to the questions (a), (b), (c) and (d) of paragraph 1
(supra) in affirmative.
33. C.S.O.S. No. 2 of 2023 is thus disposed of. Decree be drawn
accordingly.
(Krishna Rao, J.)
