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Calcutta High Court
ANIL K. SEN AND B. C. CHAKRABARTI, JJ.
Maya Basak - Appellant
Versus
Kalidasi Dassi - Respondents
A.F.O.O. No. 377 of 1974
Decided On : 18 September 1979
TRANSFER OF PROPERTY ACT - SECTION 19 - VESTED INTEREST - CONTINGENT INTEREST - SPECIFIC RELIEF ACT - SECTION 34 - DECLARATION OF CONTINGENT INTEREST - MAINTENANCE GRANT - POWER TO SELL PROPERTY FOR MAINTENANCE - INTERPRETATION OF DEED OF SETTLEMENT.
Fact of the Case:
The plaintiff, daughter of the settlor, filed a suit for declaration that she is the ultimate beneficiary of the suit property and for an injunction restraining the defendant, widow of the settlor's brother, from alienating or encumbering the property. The suit property was inherited in equal shares by two brothers, Baidya Nath and Asutosh. Baidya Nath died leaving behind the defendant as a child widow. By his Will, Baidya Nath bequeathed all his properties to Asutosh subject to a provision that the widow would have a right of residence in the dwelling house during her lifetime and a monthly allowance of Rs. 20/-. Asutosh executed a deed of settlement in favor of the defendant, granting her the undivided one-third share in the suit property for her lifetime, with the condition that upon her death, the plaintiff would be entitled to the said share. Asutosh died shortly after the execution of the deed of settlement. The defendant sold the suit property to one of the other co-sharers of the dwelling house. The plaintiff claimed that she is the ultimate beneficiary under the deed of settlement and is entitled to the property.
Finding of the Court:
The court held that the interest created in favor of the plaintiff under the deed of settlement was a contingent interest, as it was dependent upon an uncertain event of her surviving the defendant. The court further held that the plaintiff was not entitled to any declaration or injunction as prayed for, as no such prayer can be granted in view of the provisions of Sections 34 and 39 of the Specific Relief Act.
Issues: 1. Whether the interest created in favor of the plaintiff under the deed of settlement was a vested interest or a contingent interest? 2. Whether the plaintiff was entitled to a declaration that she is the ultimate beneficiary of the suit property? 3. Whether the plaintiff was entitled to an injunction restraining the defendant from alienating or encumbering the suit property?
Ratio Decidendi: 1. The court interpreted the deed of settlement as a whole and held that the grant in favor of the defendant was a maintenance grant. The court further held that the power vested in the defendant to sell off the undivided 1/3rd share in the suit property and spend the corpus was only for the purpose of providing her own maintenance and not otherwise. 2. The court held that the interest created in favor of the plaintiff under the deed of settlement was a contingent interest, as it was dependent upon an uncertain event of her surviving the defendant. The court relied on the Explanation to Section 19 of the Transfer of Property Act and the decision in Mohitai v. S. Sundaram AIR 1636 PC 131. 3. The court held that the plaintiff was not entitled to any declaration or injunction as prayed for, as no such prayer can be granted in view of the provisions of Sections 34 and 39 of the Specific Relief Act. The court relied on the decision in Tarak v. Anukul, (1945) 49 Cal WN 716.
Final Decision: The appeal was dismissed.
ANIL K. SEN, J. :- This is an appeal from an original decree. The plaintiff in a suit for declaration that she is the ultimate beneficiary in respect of the suit property and for an injunction restraining the defendant from alienating or encumbering the said property, is the appellant in this appeal. The suit was dismissed by the learned Judge, 4th Bench, City Civil Court at Calcutta and the decree of dismissal dated February 28, 1974, in Title Suit No. 707 of 1972 is the subject-matter of challenge in this appeal. The suit property is the undivided 1/3rd share in premises No. 23, Ram Mohan Saha Lane, P.S. Burtolla, Calcutta. That premises is the dwelling house of the co-sharer owners.
2. Certain facts are not in dispute and those may be set out briefly as follows :-
The suit property that is the 1/3rd share in the aforesaid dwelling house was inherited in equal shares by two brothers Baidya Nath and Asutosh. In or about the year 1920 Baidya Nath died very young leaving behind the defendant Kalidasi Dassi as a child widow. By the Will executed by Baidya Nath, he bequeathed all his properties including his 1/6th share in the aforesaid dwelling house in favour of his brother Asutosh but subject to a provision that his widow Kalidasi would have a right of residence in the dwelling house, as aforesaid, during her lifetime. The Will further provided that apart from being properly maintained by Asutosh, the widow will get a monthly allowance of Rs. 20/- out of the estate and in the event the widow does not live with Asutosh in the dwelling house she would be entitled to a sum of Rs. 40/- per month towards her maintenance. There was a direction in the Will to the effect that Asutosh must set apart a sum of Rs. 12,000/- invested in Government securities for the purpose of meeting the expenses for the widows maintenance and monthly allowance out of the income thereof. The widow, the defendant in the present suit had been living in the dwelling house and Asutosh throughout his lifetime maintained her. Asutosh, however, failed to set apart the above sum of Rs. 12,000/- or any sum out of which the widow could be maintained. Towards the end of his life Asutosh became apprehensive and repentant and on January 18, 1972, executed a deed of settlement in favour of the defendant Kalidasi Dassi, inter alia, providing :
"AND WHEREAS the Settlor is now desirous of making some arrangement whereby his obligations under the aforesaid terms of settlement and the last Will and Testament of Baidya Nath Bhar deceased aforesaid can be carried out to some extent after his death. NOW THIS DEED WITNESSETH that in consideration of the reservations of the premises stated above the Settlor doth hereby grant assign and convey unto the Trustee all that the undivided one-third share vested in the Settlor in premises No. 23, Ram Mohan Saha Lane ........ TO HOLD the same for the same for the benefit of herself. the trustee during her lifetime who shall be the sole beneficiary also under this Deed of Settlement on condition that upon the death of the Trustee the only daughter of the Settlor, namely Maya Rani Basak or her heirs shall be entitled to the said undivided one-third share in the said premises No, 23, Ram Mohan Saha Lane, Calcutta-6 PROVIDED HOWEVER that in the event of the said premises No. 23, Ram Mohan Saha Lane, Calcutta-6 or the undivided one-third share thereof hereby conveyed to the trustee is sold under orders of Court or is acquired by any public authority the proceed shall be held by the Trustee for her maintenance and she shall be entitled to spend the income as well as the corpus for her own maintenance and after her death if any residue is left thereof the same shall belong to Srimati Maya Basak the daughter of the Settlor or her heirs PROVIDED FURTHER HOWEVER that in case the Trustee finds that incumbent and imperative to sell the said undivided one-third share which is hereby conveyed to the Trustee for her own maintenance during her li
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