2013 Supreme(Cal) 651

IN THE HIGH COURT AT CALCUTTA
Jyotirmay Bhattacharya, J.

SRI PAWAN KUMAR AGARWAL & ANR.
VERSUS
THE STATE OF WEST BENGAL & ORS.
W.P No. 17025 (W) of 2013
Decided On: September 27, 2013

Transfer of leasehold property by way of will is not prohibited under the lease deed and the Indian Succession Act, and the State Authority cannot declare such transfer as illegal or demand permission fees for it.

Headnote:

LEASEHOLD PROPERTY - TRANSFER - WILL - RESTRICTION - MUTATION - PROBATE - STAMP DUTY - REGISTRATION FEES - GOVERNMENT PERMISSION - WEST BENGAL GOVERNMENT LAND (REGULATION AND TRANSFER) ACT, 1993 - APPLICABILITY - WEST BENGAL GOVERNMENT LAND (REGULATION OF TRANSFER) ACT, 2009 - APPLICABILITY - INDIAN SUCCESSION ACT - APPLICABILITY - TRANSFER OF PROPERTY ACT - APPLICABILITY - STAMP DUTY ACT - APPLICABILITY - REGISTRATION ACT - APPLICABILITY - GENERAL POWER OF ATTORNEY SALE (GPA SALES) - SALE AGREEMENT/GENERAL POWER OF ATTORNEY SALES/ WILL TRANSFERS - LIVING WILL - DISTINCTION - VALIDITY OF WILL - ENQUIRY BY STATE AUTHORITY - POWER OF STATE AUTHORITY TO DECLARE VESTING OF LEASEHOLD RIGHT AS ILLEGAL - PERMISSION FEES - LEGALITY - CONTRACTUAL RIGHTS OF PARTIES - ALTERATION BY NOTIFICATION - LEGISLATIVE PROCESS - URGENT XEROX CERTIFIED COPY OF JUDGMENT - STAY OF OPERATION OF JUDGMENT - REJECTION OF PRAYER FOR STAY.

Fact of the Case:

The facts of the case are that a plot of land was leased out by the State of West Bengal to one Mr. Anil Kumar Kundu for a period of 999 years on the terms and conditions as mentioned in the registered lease deed dated 8th May, 1997. The said lease deed imposes restriction on the lessee’s right to assign and/or transfer the demised land or any part of it and/or the structure erected thereon, without the previous permission of the Government in writing. The consequence of assignment and/or transfer of the demised property without obtaining the previous permission of the Government in writing, is also provided in the said lease deed. However, bequest of the leasehold property and building thereon by the lessee by way of will in favour of a stranger is not prohibited in the said lease deed. The lease deed does not provide that in case the lessee intends to bequeath his leasehold interest in the demised property in favour of any stranger by will, he is required to obtain prior permission from the Government. On the contrary, it is provided in the said lease deed that if the lessee dies after having made a bequest of the leasehold premises and the building thereon in favour of more than one person, then the persons to whom the leasehold premises with building thereon is so bequeathed, shall hold the said property jointly without having any interest to have a partition of the same by metes and bounds or they shall nominate one person amongst their number in whom the same shall vest.

Finding of the Court:

The court held that the vesting of testator’s right with the legatee on the basis of the probated will cannot be declared invalid by the State and since such vesting is made by operation of law under the Indian Succession Act, the State Authority cannot declare such vesting of leasehold right of the original lessee upon the petitioners, as illegal and as such the court held that no permission of the State authority for such transfer is necessary to legalize such transfer by will inasmuch as such concept of grant of post facto permission by the State to legalize such will is unknown to Indian Succession Act, and for similar reason the court held that State authority cannot demand permission fees in terms of the impugned notification dated 22nd June 2012 for effecting mutation of the names of the petitioners in the official records of the State Authority.

Issues: 1. Whether the State Authority can declare the vesting of the testators’ leasehold interest in the land upon the legatees, as invalid? 2. Whether the State Respondent can demand transfer fees by treating such transaction as irregular and/or for giving a legal safe to it? 3. Whether the State authority can inquire into the real intention of the parties to such transaction? 4. Whether the State Authority can declare such vesting of leasehold right of the original lessee upon the petitioners, as illegal? 5. Whether the State authority can demand permission fees in terms of the impugned notification dated 22nd June 2012 for effecting mutation of the names of the petitioners in the official records of the State Authority?

Ratio Decidendi: 1. The lease deed does not prohibit bequest by will, the vesting of testator’s right with the legatee on the basis of the probated will cannot be declared invalid by the State. 2. Since such vesting is made by operation of law under the Indian Succession Act, the State Authority cannot declare such vesting of leasehold right of the original lessee upon the petitioners, as illegal. 3. No permission of the State authority for such transfer is necessary to legalize such transfer by will inasmuch as such concept of grant of post facto permission by the State to legalize such will is unknown to Indian Succession Act. 4. State authority cannot demand permission fees in terms of the impugned notification dated 22nd June 2012 for effecting mutation of the names of the petitioners in the official records of the State Authority.

Final Decision: The writ petition is disposed of by directing the concerned State respondents to mutate the names of the petitioners as lessees for the said plot of land together with the construction made thereon in respect of the residuary period of the said lease by recognizing the vesting of the lessee’s interest with the petitioners by virtue of such probated will. Such exercise should be completed within 15th November, 2013.