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2006 Supreme(Cal) 362
High Court Of Calcutta
Jyotirmay Bhattacharya
MAHADEB GHOSH - Appellant
Versus
STATE OF WEST BENGAL - Respondent
W. P. 21264 (W) Of 2005
Decided On : 06/21/2006
ALOK KUMAR GHOSH, NILANJAN CHNTTERJEE, SHIV SHANKAR BANERJI
A bequeath of different portions of a leasehold property by will in favor of different sons by the testatrix does not amount to a subdivision of the property if the testatrix did not create separate independent units that could be physically separated from each other, and if the lease deed recognizes the right of the lessee to bequeath the leasehold property by will in favor of more than one person.
Headnote:
URBAN LAND (CEILING AND REGULATION) ACT, 1976 - S. 12 - LEASE DEED - VALIDITY - BEQUEATH OF LEASEHOLD PROPERTY BY WILL - SUBDIVISION OF PROPERTY - INTERPRETATION OF CLAUSES 7 AND 12 OF THE LEASE DEED - LEGALITY OF MUTATION OF NAMES OF BENEFICIARIES UNDER THE WILL.
Fact of the Case:
The petitioner's mother, Amiyabala Ghosh, was a lessee of a property under the State of West Bengal. After her death, the petitioner, as an executor of her will, applied for probate and mutation of his name in respect of the allotment he received under the will. The concerned authorities directed the petitioner to submit affidavits under the Urban Land (Ceiling and Regulation) Act, 1976, from all the beneficiaries of the will. The petitioner expressed his inability to obtain such affidavits and requested the authorities to apportion the premises and mutate his name in respect of the apportioned portion.
Finding of the Court:
The court held that the bequeath of different portions of the property in favor of different sons by the testatrix did not amount to a subdivision of the property. The court further held that the right to bequeath such leasehold property by will in favor of more than one person by the lessee was recognized in Clause 12 of the lease deed.
Issues: 1. Whether the bequeath of different portions of the property in favor of different sons by the testatrix amounted to a subdivision of the property. 2. Whether the right to bequeath such leasehold property by will in favor of more than one person by the lessee was recognized in the lease deed.
Ratio Decidendi: 1. The court interpreted Clause 7 of the lease deed, which put an embargo on the right of the lessee to subdivide or sublet the demised land or the building thereon without the consent of the government. The court held that the bequeath of different portions of the property in favor of different sons by the testatrix did not amount to a subdivision of the property, as the testatrix did not create separate independent units that could be physically separated from each other. 2. The court also interpreted Clause 12 of the lease deed, which provided that in case of a bequeath in favor of more than one person, all the beneficiaries shall hold the property jointly without having any right to partition the same by metes and bounds. The court held that this clause recognized the right of the lessee to bequeath the leasehold property by will in favor of more than one person.
Final Decision: The court directed the concerned authority to mutate the names of the beneficiaries as per the will in respect of the said premises upon notice to all the beneficiaries under the will.
( 1 ) ADMITTEDLY Amiyabala Ghosh, since deceased, was a lessee in respect of 5. 7407 cottahs of land lying at Plot No. 199 in Block- BF in Sector-l of the northern Salt Lake City extension area in the district of 24 Paraganas under the state of West Bengal. The said lease was granted by the State of West Bengal in favour of Amiyabala Ghosh, the mother of the petitioner by a registered indenture of lease dated 28th April 1982.
( 2 ) SUBSEQUENTLY, by a deed of rectification dated 14th April, 1983 executed between the parties it was clarified that rent-free land measuring 5. 2803 cottahs was leased out to the said lessee.
( 3 ) AFTER obtaining the said lease, a two-storied building was constructed in the said premises.
( 4 ) THE said Amiyabala Ghosh died testate on 12th January 2003 leaving a registered Will dated 18th May, 1999 bequeathing different portions of the said property in favour of her sons. The petitioner was appointed as an executor in the said Will.
( 5 ) AFTER the death of Amiyabala Ghosh, the petitioner being an executor appointed in the said Will, applied for grant of probate of the said Will before the learned Additional District Judge, Fast Track 3rd Court, Barrackpore, North 24 paraganas. Pursuant to the said application, probate was granted to the said will by the Learned Additional District Judge, Fast Track 3rd Court at Barrackpore on 21st June 2005.
( 6 ) AFTER obtaining probate to the said Will, the petitioner, on 27th July, 2005, submitted an application before the Joint Secretary, Urban Development department, Salt Lake branch for mutation of his name in respect of the allotment which he got from her mother by the said Will.
( 7 ) IN reply to the petitioner's said application, the Land Manager bidhannagore, Urban Development Department, Salt Lake Branch, by his letter dated 7th September, 2005 directed the petitioner to submit affidavits under the urban Land (Ceiling and Regulation) Act 1976 to be affirmed by all the beneficiaries of the Will of the deceased separately as per the prof orma enclosed thereto.
( 8 ) ON receipt of the said letter the petitioner by his letter dated 30th september, 2005 intimated the said Land Manager, Bidhannagore that the petitioner is unable to produce,such affidavit from his other co-owners individually. The petitioner, however, intimated the said Land Manager that the petitioner himself can submit the said affidavit before the said Land Manager. The petitioner once again requested the said authority to apportion the said premises in terms of the Will and to mutate the name of the petitioner in respect of the apportioned portion which was given to the petitioner by his mother in the said Will.
( 9 ) IN spite of receipt of the said letter on 30th September, 2005 the concerned respondents had neither taken any step to mutate the name of the petitioner as lessee nor cared to reply to the petitioner's said letter intimating him about the fate of the petitioner's said application.
( 10 ) UNDER such circumstances, the petitioner filed this writ petition seeking appropriate reliefs.
( 11 ) MR. Ghosh, learned Advocate appearing for the State respondents, opposed the petitioner's prayer by contending, inter alia, that Amiyabala Ghosh was not the absolute owner of the said property. Mr. Ghosh contended that amiyabala was a lessee in respect of the aforesaid premises under the State of west Bengal. By producing the lease deed dated 28th April, 1982, Mr. Ghosh pointed out from Clause 7 thereof that the lessee had no right to subdivide or sublet the demised land or the building to be constructed without the consent in writing of the Government first had and obtained. Mr. Ghosh further pointed out from the said clause that the Government reserved its right to refuse its consent at its absolute discretion.
( 12 ) MR. Ghosh, thus, contended that in view of such restriction regarding sub-division of the property, the lessee had no right to bequeath d
