Calcutta High Court (Appellete Side)
Sri Benoy Prasad Singh vs Sri Ajit Kumar Sen And Others on 25 September, 2024
Author: Rajasekhar Mantha
Bench: Rajasekhar Mantha
25-09-2024
ct no. 13
sl. no. 37
pk
F. M. A. 282 of 2007
Sri Benoy Prasad Singh
Vs.
Sri Ajit Kumar Sen and others
Mr. Saunak Bhattacharya,
Mr. Manik Lal Poddar
... for the appellant.
Ms. Shetparna Ray
Mr. Tirtharaj Ghoshal
... for the respondent nos. 1-4.
1. The instant appeal arises out of an order
dated 30th September, 2005 which constituted
a judgment and decree passed by the learned
6th Bench of the City Civil Court at Calcutta in
Misc. Case No. 2148 of 2003. The said
judgment and decree were passed under the
provisions of the Order XXI, Rules 97 to 101
of the Code of Civil Procedure, 1908.
2. The subject matter of the proceedings was
premises 96C, Beniatala Street, Kolkata. The
said property was carved out of premises No.
96B, Beniatala Street, Kolkata.
3. Premises being 96B, Beniatala Street, Kolkata
originally stood in the name of one Sankar Lal
Sen. Pursuant to a partition deed dated 16th
February, 1945, the said property came to be
distributed between two sons of Sankar Lal
Sen, namely, Shhib Kisto Sen and Sambhu
Nath Sen i.e. 96B, Beniatala Street, Kolkata
came into the share of Shhib Kisto Sen and
96C, Beniatala Street, Kolkata fell into the
share of Sambhu Nath Sen.
4. In the said very partition deed, the mother of
Sambhu Nath Sen, namely, Promodini Dasi
was reserved a life interest in the property
under the provisions of the then existing
Hindu Women Right to Property Act, 1937.
She also became entitled to a sum of Rs.15/-
per month towards her maintenance.
5. On 15th June, 1955, Sambhu Nath Sen
entered into an agreement for sale with one
Gobardhan Prosad Singh, the father of the
appellant for sale of the said premises No.
96C, Beniatala Street, Kolkata for valuable
consideration. A part payment of Rs.2253/-
was made. The balance payment was to be
made upon execution of conveyance by
Sambhu Nath Sen.
6. On the failure of Sambhu Nath Sen to execute
conveyance, Gobardhan Prosad Singh filed
Title Suit No. 129 of 1956, which was decreed
in his favour on 8th March, 1957. The
Registrar, Original Side of this Court executed
conveyance of the said property in favour of
Gobardhan Prosad Singh.
7. The said Sambhu Nath Sen did not part with
possession of the suit property whereupon the
appellant's father Gobardhan Prosad Singh
filed a suit for eviction being Title Suit No. 134
of 1986.
8. The said suit was decreed on 9th April, 1997
by the 6th Bench of the City Civil Court at
Calcutta. Against the said decree, Sambhu
Nath Sen preferred the first appeal before the
High Court which was numbered as F.A. 79 of
1998. During the pendency of the appeal,
some of the present respondents being four
sons of Sambhu Nath Sen, namely, Anil Sen,
Susil Sen, Ajit Sen and Asit Sen were
substituted as appellants.
9. In addition thereto, Sambhu Nath Sen had
three daughters, namely, Tapasi Das, Malati
Pal and Bharati Mallick. They were not
substituted in course of the appeal.
10. The said appeal was dismissed by a judgment
and order dated 11th March, 2003 by a Co-
ordinate Bench of this Court.
11. It was decided in the said appeal that the
substituted appellants therein, who are also
inter alia, respondents herein, were disentitled
to raise any claim on the basis of any right
flowing from their grandmother, Promodini
Dasi.
12. It was held by the Division Bench that to allow
such a claim and/or right to be raised for the
first time in the appeal would amount to
reopening of the suit and a new defence being
taken by the substituted appellants. The
defense was also otherwise held not tenable.
13. The decree came to be put into execution by
the appellant herein. In course of the
execution proceedings, when the bailiff sought
to take possession of the property to deliver
the same to the appellant, the respondents
resisted him. The appellant applied for police
help in the court below.
14. Two sets of applications came to be made to
resist the execution of the decree for eviction.
One by the same substituted appellant's sons
of late Sambhu Nath Sen, namely, Anil Sen,
Susil Sen, Ajit Sen and Asit Sen and another
by his three daughters, namely, Tapasi Das,
Malati Das and Bharati Mallick.
15. The Court below despite referring the
judgment of the Division Bench dated 11th
March, 2003 (supra) went on to hold that the
respondents have a right, title and interest of
50% share in the property derived from their
grandmother Promodini Dasi's share therein.
Based on the said right, it was held that the
decree could not be executed against the
respondents.
16. Learned counsel Ms. Shetparna Roy,
appearing for the respondents has taken great
pains and has very ably argued the defence of
the respondents in the instant appeal. It is
submitted by Ms. Roy that since after coming
into force of the Hindu Succession Act, 1956,
the life interest and maintenance that was the
subject matter of the original partition deed
dated 16th February 1945, in favour of
Promodini Dasi stood converted to a 50%
share in premises No. 96C, Beniatala Street,
Calcutta, such right being inherited by the
respondents. It is also argued that since after
coming into force of the Act of 1956, Sambhu
Nath Sen had lost the right to convey the 50%
share of Promodini Dasi in favour of
Gobardhan Prasad Singh. It is therefore
submitted that the Trial Judge was right in
disallowing execution of the decree against
them.
17. This Court appreciates the arguments
advanced on behalf the respondents by Ms.
Shetparna Roy, Advocate.
18. The law, however, on the subject would stand
on a different footing. It must be borne in
mind that when the agreement of sale dated
15th June 1955 was executed the 1956 Act
was not in force. The execution of the
conveyance dated 24th April, 1958 by the
Registrar, Original Side was, in fact, pursuant
to a decree dated 8th March, 1957 passed in
T.S. No. 129 of 1956. Promodini Dasi who was
alive and well at the relevant point of time did
not intervene in the suit to assert any right
either in the 1956 Act or in derogation of the
partition deed dated 16th February 1945,
between her two sons and herself.
19. The execution of the conveyance in the year
1958 albeit after coming into force of the 1956
act would not create any new rights in favour
of Promodini Dasi. All her rights stood
restricted to and crystallized in a right of
residence/life interest and that too only
against her sons. Such right, cannot in any
way affect the claims and entitlement under
the decree dated 8th March 1957 obtained by
the father of the appellant.
20. Reference in this regard is made to the
decision of State of West Bengal Vs. Hemant
Kr Bhattacharjee reported in AIR 1966 SC
1061.
21. In addition thereto, the assertion by the
respondents resistors, even otherwise stood
negated by the decision of a Co-ordinate bench
of this Court dated 11th March, 2003.
22. The arguments of Ms. Roy that the daughters
of late Sambhu Nath Sen being
granddaughters of Promodini Dasi were not
substituted in the appeal being F.A. No. 79 of
1998 and hence the said judgment could not
bind the daughters, cannot be accepted either.
23. This Court finds that it is the right, title
and interest of Promodini Dasi in the suit
property that was determined, irrespective of
which legal heirs had challenged the same.
The said decision would be binding on all the
legal heirs of Promodini Dasi. In fact, the
decision rendered hereinabove is in respect of
the rights of Promodini Dasi. Reference in this
regard is made to the decision of Daya Ram
Vs. Shyam Sundar reported in AIR 1965 SC
1049, particularly, paragraph 11.
24. In the backdrop of the aforesaid, the trial
Court could not have entertained any rights
asserted by the respondents in resistance to
the execution of the decree in Misc. Case No.
2148 of 2003.
25. For, inter alia, the reasons stated herein
above, the impugned judgment and decree dated
30th September, 2005 is not sustainable in law
and the same is set aside.
26. Accordingly, the instant appeal is
allowed.
27. In view of disposal of the appeal,
connected applications, if any, are also disposed
of.
28. The respondents shall deliver
possession of the property to the appellant within
a period of 3 months from date. In default
whereof the executing court shall direct police
assistance to the bailiff to deliver such
possession.
29. Let the Trial Court Records, if any, be
returned. The Registry shall communicate this
order to the Trial Court.
30. All parties shall act on the server copy of
this order duly downloaded from the official
website of this Court.
(Rajasekhar Mantha, J.)
(Ajay Kumar Gupta, J.)
