Back
2015 Supreme(Cal) 327
IN THE HIGH COURT OF CALCUTTA
DEBANGSU BASAK, J.
Smt. Madhuri Agarwal & Anr.
Vs.
Sri Ved Prakash Taneja & Ors.
C.S. No. 307 of 2006
Decided on : 29-7-2015
Advocate Appeared:
For the Plaintiff s :Mr. Ravi Kapur, Advocate Mr. Rishad Medora, Advocate Mrs. Ahana Sikdar, Advocate Ms. Brinda Sen Gupta, Advocate
For the Defendants :Mr. S. Mitra, Sr. Advocate Ms. Suparna Mukherjee, Advocate Mr. David Mantosh, Advocate Mr. Pradeep Kumar, Advocate Ms. Smruti Rekha Das, Advocate
A tenancy agreement executed by a person who does not have the authority to grant such tenancy is void, and the tenants do not acquire any right, title, or interest in the property.
Headnote:
PROBATE - WILL - TENANCY - VALIDITY - REVOCATION - POSSESSION - DAMAGES - MESNE PROFITS - INDIAN SUCCESSION ACT, 1925 - SECTIONS 211, 213, 221, 227, 297 - TRANSFER OF PROPERTY ACT, 1882 - SECTION 106 - WEST BENGAL PREMISES TENANCY ACT, 1997 - APPLICABILITY - bona fide TENANCY - NOTICE - PROBATE COURT JURISDICTION - TITLE OF PROPERTIES - REMEDY OF INJUNCTION - JUDGMENT IN REM - LAW OF SUCCESSION - VACUUM IN SUCCESSION.
Fact of the Case:
Plaintiffs seek possession of a flat and car parking space, claiming ownership through a Will and probate granted in their favor. The defendant nos. 1 and 2 claim tenancy rights based on a tenancy agreement executed by defendant no. 3, who had obtained a probate of a different Will. The probate in favor of defendant no. 3 was later revoked.
Finding of the Court:
1. The property of the deceased Smt. Sita Chakraborty devolved upon the plaintiff no. 2 as the executor of the Will dated October 10, 1995, for which probate was granted on September 20, 1996. 2. The defendant no. 3 had no right, title, or interest to create a tenancy on February 28, 1997, as the property had already vested in the plaintiff no. 2. 3. The defendant nos. 1 and 2 did not derive any right, title, or interest as tenants by virtue of the tenancy agreement dated February 28, 1997, as defendant no. 3 had no authority to grant such tenancy. 4. The plaintiffs are entitled to vacant possession of the suit premises. 5. The quantification of damages and mesne profits is referred to a Special Referee for adjudication.
Issues: 1. Whether the plaintiff is entitled to a decree for vacant and peaceful possession of the suit premises? 2. Is the plaintiff entitled to a decree for damages of Rs.50,000/- against the defendant nos. 1 & 2? 3. Is the plaintiff entitled to a decree for mesne profits of Rs.21,75,000/- against the defendant nos. 1 & 2? 4. Did the defendant no. 3 have any right to induct the defendant nos. 1 & 2 in the suit premises? 5. What other reliefs, the plaintiff is further entitled to?
Ratio Decidendi: 1. The grant of probate operates as a judgment in rem, but the probate court does not decide the title of the properties involved in the Will. 2. Law of succession does not contemplate a vacuum in succession. 3. A person in possession of an immovable property can protect the same by seeking an injunction against any person in the world other than the true owner of such immovable property. 4. The revocation of a grant of probate would not operate retrospectively. 5. The executor or administrator of a deceased person is his legal representative for all purposes, and all properties of the deceased vest in him as such.
Final Decision: 1. Decree for possession in favor of the plaintiffs and against the defendants. 2. Decree for costs assessed at Rs.66,280/- against the defendant nos. 1 and 2 jointly and severally. 3. Quantification of damages and mesne profits referred to a Special Referee.
DEBANGSU BASAK, J.
The plaintiffs seek a decree for possession of a flat and a car parking space at premises No. 3, Middleton Row, Kolkata - 700071. The plaintiffs also seek mesne profits and damages from the defendant nos. 1 and 2.
According to the plaintiffs, Late Smt. Sita Chakraborty was the owner of the flat and car parking space in question. She had executed her last Will and testament on October 10, 1995 by which she had devised and bequeathed her assets and properties including the flat and car parking space in favour of the plaintiff no. 1. The plaintiff no. 2 was appointed as the executor of such Will. The plaintiff no. 1 had obtained a probate in respect of the Will dated October 10, 1995 of Late Smt. Sita Chakraborty on September 20, 1996. The plaintiffs had caused their Advocate to issue a letter dated November 22, 1996 to the defendant no. 4 which is the society in which the flat and the car parking space is located, as to their right, title and interest in respect of the flat and the car parking space. According to the plaintiffs, the claim of tenancy made by the defendant nos. 1 and 2 in respect of the suit premises by virtue of an alleged tenancy agreement entered into by the defendant no. 3 with the defendant nos. 1 and 2 is without any basis. According to the plaintiffs, the probate of a Will dated September 15, 1995 granted in favour of the defendant no. 3 on December 18, 1996 was revoked on February 5, 1998. The alleged tenancy was created on February 28, 1997. The creation of the tenancy is bad. The defendant nos. 1 and 2 did not derive any title through the defendant no. 3 as the defendant no. 3 had no title in respect of the flat or the car parking space. The plaintiffs claim mesne profits from the defendant nos. 1 and 2 for wrongful occupation of the flat and the car parking space. The plaintiffs also claim damages from the defendant nos. 1 and 2 for damages caused to the flat and the car parking space.
The defendant nos. 1 and 2 are contesting the instant suit. They have filed a written statement. The defendant nos. 1 and 2 claim that, they are bona fide tenants without notice of the probate granted in favour of the plaintiff no. 1. According to the defendant nos. 1 and 2, the defendant no. 3 had a valid probate existing in his favour on February 28, 1997 when the tenancy was created. Subsequent revocation of the probate would not affect the right of the defendant nos. 1 and 2 as the tenants of the suit premises. The plaintiffs have to treat the defendant nos. 1 and 2 as lawful tenants in respect of the flat and the car parking space. The plaintiffs not having issued a valid notice terminating such tenancy, the plaintiffs are not entitled to the decree for possession or a decree for eviction or any other relief as prayed for in the suit.
The issues in the instant suit settled on June 24, 2015 are as follows:-
1. Whether the plaintiff is entitled to a decree for vacant and peaceful possession of the suit premises as described in Schedule annexed to the plaint?
2. Is the plaintiff entitled to a decree for damages of Rs.50,000/- against the defendant nos. 1 & 2?
3. Is the plaintiff entitled to a decree for mesne profits of Rs.21,75,000/- against the defendant nos. 1 & 2?
4. Did the defendant no. 3 have any right to induct the defendant nos. 1 & 2 in the suit premises?
5. What other reliefs, the plaintiff is further entitled to?
The plaintiffs have adduced evidence through the plaintiff no. 1. The defendant nos. 1 and 2 have adduced evidence through the defendant no. 2.
The first and the fourth issues being interrelated are taken up together for consideration.
Learned Senior Advocate for the defendant nos. 1 and 2 submits that, the tenancy in favour of the defendant nos. 1 and 2 was created by the defendant no. 3 on February 28, 1997. On such date there existed a grant of probate of a Will dated September 15, 1995 of Late Smt. Sita Chakraborty in favour of the defendant no. 3. The probate of such Wi
