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Apurba Chandra Sen Vs. Kamal Kumar Dutta - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberSecond Appeal No. 295 of 1974
Judge
Reported inAIR1976Cal62
ActsSuccesion Act, 1925 - Section 333
AppellantApurba Chandra Sen;kamal Kumar Dutta
RespondentKamal Kumar Dutta;apurba Chandra Sen
Appellant AdvocateRanjit Kumar Banerjee and ;Abhijit Kumar Banerjee, Advs.
Respondent AdvocateAnil Kumar Sett and ;Bhaskar Ghose, Advs.
DispositionAppeal dismissed
Excerpt:
- .....obtained a degree for eviction of the defendant an the ground of reasonable requirement for the suit premises for his own use and occupation.2. in the original suit the plaintiff, kamal kumar dutta alleged that the defendant. apurba chandra sen was a monthly tenant in respect of the suit premises under him. the suit premises is 16/1b, prince golam mohammed road which the plaintiff got as a legatee by virtue of a will executed by his mother, the owner of the said house and other ones. the plaintiff's mother bequeathed another house which is premises no. 51, lansdowne terrace to two other sons, sudhir and salil. the plaintiff an unmarried person was living in the said premises no. 51. lansdowne terrace belonging to sudhir and salil as their licensee occupying only one room. it has been.....
Judgment:

R. Bhattacharya, J.

1. This second appeal is by the defendant against the decision of the Additional District Judge in a Title Appeal, affirming the judgment and the decree passed in the original Title suit in the Court of Munsif at Alipore where the plaintiff-respondant obtained a degree for eviction of the defendant an the ground of reasonable requirement for the suit premises for his own use and occupation.

2. In the original suit the plaintiff, Kamal Kumar Dutta alleged that the defendant. Apurba Chandra Sen was a monthly tenant in respect of the suit premises under him. The suit premises is 16/1B, Prince Golam Mohammed Road which the plaintiff got as a legatee by virtue of a will executed by his mother, the owner of the said house and other ones. The plaintiff's mother bequeathed another house which is premises no. 51, Lansdowne Terrace to two other sons, Sudhir and Salil. The plaintiff an unmarried person was living in the said premises No. 51. Lansdowne Terrace belonging to Sudhir and Salil as their licensee occupying only one room. It has been further alleged that the plaintiff wants to be married, but for want of accommodation he cannot marry. There is ill feeling between the plaintiff and his brothers, the owners of the premises at Lansdowne Terrace and they want him to vacate the house. The suit premises is the only house of the plaintiff where he wants to shift for his own use and occupation in the first floor and for his business on the ground floor. The plaintiff served an ejectment notice upon the defendant but as the defendant did not vacate the suit premises, he filed the suit for eviction and mesne profits. The defendant appeared in the suit and filed written statement alleging that the plaintiff had no requirement as alleged either for his own use and occupation or for his business. The trial Court accepted the plaintiff's story of use and occupation of the first floor of the suit premises but he was not inclined to believe the allegation that the plaintiff required the ground floor for his business. The learned Munsif was inclined to allow a partial decree for the eviction of the defendant from the first floor of the suit premises, but as the defendant was not willing to the proposal for partial eviction, the learned Munsif allowed a decree for eviction from the entire suit premises. Against that decision, an appeal was preferred and the learned Additional District Judge also accepted the findings of the learned Munsif and dismissed the appeal.

3. I have heard Mr. Banerjee, the learned Advocate appearing on behalf of the appellant and Mr. Sett for the respondent. It has been contended by Mr. Banerjee for the appellant that in view of Section 333 of the Indian Succession Act as there fe no evidence of assent of the executor, the specific bequest to the plaintiff has not been, completed and that no perfect title to the suit property has been acquired by the plaintiff. Mr. Banerjee's argument is that in the absence of such assent of the executor and in the absence of a perfect title to the suit property, the plaintiff was not entitled to file the suit against the defendant Mr. Banerjee has contended that for the assent of the executors for the passing of the complete title 'to the legatee, a registered document of transfer ought to have been executed by the executors named in the will and without that registered document, no valid title could come to the plaintiff. It has been argued that although one of the executors has been examined in this case by the plaintiff, the said executor has not in his evidence stated that the executors had given assent to the bequest made in favour of the plaintiff.

4. Section 333 says that the assent of the executor to a specific bequest shall be sufficient to divest oneself of one's interest as executor therein and to transfer the subject of the bequest to the legatee unless 'the nature or circumstances of the property requires that it shall be transferred in a particular way'. In Sub-section (2) it has been further stated that the assent may be verbal and it may be either express or implied from the conduct of the executor. Mr. Sett has argued that nowhere in Indian Succession Act or in any other Act is there any provision suggesting that for assent of the executor, registered deed is necessary. In this connexion my attention has been drawn to Section 335 of the Indian Succession Act. In the present case, there is no dispute that the mother of the plaintiff had several houses and by her will she gave away different houses to different sons. The suit premises was given to the plaintiff and the evidence is that after the death of the plaintiffs mother, the brothers of the plaintiff wanted the latter to vacate their house where he was staying as a licensee. There are four executors who took the probate and one of them Saritbindu Ghosh gave evidence in favour of the plaintiff. His clear evidence is that by virtue of the will the plaintiff has acquired the suit premises. He has further stated that Sudhir and Salil have also acquired the house at 51, Lansdowne Terrace. Certain orders have been marked exhibits in this case which show that the executors filed a petition in connexion with the will before the Court of the District Delicate (sic) for recording the administration of the estate left by the testatrix Sushila Bala Dutta and also tor recording due satisfaction of the. respective legatees. The said Order No. 13 dated 4-5-1966 also shows that the executors wanted to be released from further obligations to administrate the estate. The Order No. 14 dated 6-5-1966 evidences that the legatees under the will prayed that the executors may be discharged from all liabilities and that they may be allowed to enjoy the legacies in terms of the will. From Order No. 16 dated 21-5-1966 we also get that inventory was filed. Prom the evidence of P. W. 1 declaring that the plaintiff had already acquired the suit premises read along with the orders already mentioned and further coupled with the' evidence that the plaintiff got the suit premises recorded in his own name in the Corporation of Calcutta as the owner within the knowledge of the executors and without their objection in any manner, it must be held that the executors gave their assent as required under Section 333 of the Indian Succession Act. In Sub-section (2) of that section it is also stated that the assent may be verbal and it may also be either express or implied from the conduct of the executor. In the instant case the facts and circumstances clearly indicate that the executors gave assent and the legatees started enjoying the properties as given in the will with full title and that there was nothing else to be administered. The executors prayed for being discharged from their duties as there was nothing left to be administered and the legatees gave their consent before the Court. Nowhere has it been indicated that for assent referred to in Section 333 of the Indian Succession Act, any registered deed is required. On the contrary the assent may be express or implied appearing from the conduct of the parties and the facts and circumstances. No specific law or statute has been brought to my notice which says that any registered deed is to be executed for the assent of the executor mentioned in Section 333 of the Indian Succession Act. I cannot accept the contention of Mr. Banerjee as indicated above. The argument that 'the circumstances of the property require that it shall be transferred in a particular way' in Section 333(1) means that house being immovable property required registration is not acceptable as the words do not mean registration and had there been any question of transfer by registered deed, there would have been no necessity to use the word 'assent'. Moreover, the executor is but a trustee for the legatee and he has no independent title to transfer to the legatee, the real owner requiring any registered deed of conveyance, which is again not necessary for the divesting of one self of one's interest as an executor.

5. No other question of law has been urged before me. This is a case of requirement of the plaintiff for his own use and occupation and both the courts below have accepted that the plaintiff requires the first floor of the suit premises for his own use and occupation. There has been no challenge about this fact in this second appeal. It has also been found by the courts below that the plaintiff's plea of requirement of the ground floor for Ms business has been unacceptable. Before the trial court the defendant did not want that there should be any decree of partial eviction from the first floor of the suit premises and therefore, he did not agree to any decree for partial eviction. In the circumstance the trial court allowed a full decree in respect of the entire suit premises for eviction of the defendant therefrom and for mesne profits. In the first appeal there was no canvass for partial eviction from the side of the appellant. Before this Court also there was no prayer for partial eviction. The question of partial eviction, therefore, cannot be considered.

6. There is, however, one prayer from the side of the appellant for consideration of the 'changed corcumstances' as they are called by the appellant, to see if the decree for eviction can be maintained. It has been alleged by the appellant through a petition supported by his affidavit filed in Court on 27-6-1975 that he has come to know from one Gour Gopal Dutta that the plaintiff-respondent is now residing in a tenanted house. The prayer on behalf of the appellant is that when the plaintiff is now residing in a tenanted house without any discomfort, this Court should consider this changed circumstance and set aside the decree for ejectment passed on ground of reasonable requirement of the plaintiff's own use and occupation. In reply to the petition filed by the appellant Gour Gopal Dutta referred to by the appellant in his petition has sworn an affidavit saying that he never said to the appellant that the opposite party was residing in any tenanted house. Another affidavit has been filed on the side of the respondent-plaintiff. One Eanjit Kumar Nag has stated on oath that he is an intimate friend of Anil Dutta, the eldest brother of the plaintiff, that he has permitted the plaintiff with the consent of his mother who is the owner of premises No. 46-A/1. S.N. Roy Road, Behala, to occupy two rooms on the ground floor of that house and a narrow passage adjacent thereto as a licensee. The allegation of the plaintiff's occupying any tenanted house subsequent to the decree passed by the trial court, is clearly unacceptable. The plaintiff has been given accommodation as a licensee as a matter of grace during the pendency of the suit. The stay of the plaintiff in another's house practically on charity is not only precarious but uncertain and risky. This changed circumstance will, rather, prove that the plaintiff's requirement of the suit premises for his own use and occupation is an utter necessity. The changed circumstances as alleged by the appellant cannot be considered here to reopen the decision of the trial court on merit. This is not a case wherein the merits of the case will be reconsidered specially when the allegation of the appellant is denied. In this case there is no doubt that the allegation of the appellant is unacceptable. The petition of the appellant for reconsideration of the merits of the case is rejected.

7. In view of my findings above the appeal is dismissed with costs. The appellant is allowed time to vacate the premises till the end of October. 1975 as prayed for.

8. Let the lower court records be sent down as early as possible.

9. Mr. Banerjee for the appellant prays for leave to appeal under the Letters Patent but I find no ground for the leave. It is refused.


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