A bequest of a leasehold interest by way of will is valid and does not require the permission of the State Authority or the payment of transfer fees if the lease deed does not prohibit such bequest.

1. A plot of rent-free land measuring about 5.1834 Cottah being identified as plot No.54 in Block-CA, Salt Lake City, Kolkata-700064 was leased out by the State of West Bengal in favour of 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.

2. Here is the case where the said lessee namely, Anil Kumar Kundu, died after having made a bequest of his leasehold interest in the demised property in favour of the petitioners herein. After the demise of the said testator, the petitioner No.1 applied for grant of probate to the last testamentary will left by the said testator before this Hon’ble court, in its testamentary and intestate jurisdiction, on 11th February, 1991. The said proceeding was registered as PLA No.141 of 2012. Probate was granted by the court to the said will in favour of the petitioner No. 1, viz., Shri Pawan Kumar Agarwal who applied for grant of probate as an executor appointed in the said will. After obtaining probate, the petitioners herein submitted an application before the land Manager, Bidhannagar Urban Development Department, Government of West Bengal seeking mutation of their names as lessees in respect of the said plot No. 54, Block-CA, Salt Lake City. The petitioners’ said application for mutation remains unattended. Hence the instant writ petition was filed by the petitioners, seeking issuance of direction upon the State Authority for mutating their names as joint lessees in respect of the said plot of land on the basis of the said probated will.

3. The State respondents contested the said writ petition by filing an affidavit in opposition, alleging therein that the transfer of the said premises by way of will left by Anil Kumar Kundu is nothing but a fraudulent transfer and as such the names of the petitioners cannot be mutated unless a fresh deed of transfer is executed by the heirs of the original lessee in favour of the petitioners after obtaining permission from the Government and on payment of permission fees as provided in the notification dated 22nd June, 2012. In fact, the State Respondents made their stand very clear in their said affidavit that they would not process the petitioners’ application for mutation unless transfer fees as provided in the notification dated 22nd June, 2012 is paid by them.

4. In this context, this court is required to consider as to how far the State Respondents were justified in taking such a stand for refusing to mutate the petitioners’ name as lessee in place of original lessee viz., Anil Kumar Kundu, in their official records. Mr. Bihani, Learned Senior counsel appearing for the petitioner, submitted that the issue regarding th