Bequests by a Will were not prohibited in case of leasehold properties of Salt Lake, and the lessees had an unrestricted right to bequeath the leasehold interest by way of a Will to any person.

JUDGMENT :

Shampa Sarkar, J.

1. This intra-court appeal has been filed against the judgment and order dated February 3, 2016 passed by a learned single judge of this court in W.P. No. 29421 (W) of 2015 In re: Smt. Kusum Agarwal & Anr. v. The State of West Bengal & Ors. (hereinafter referred to as the writ petition).

2. By the judgment and order impugned the learned single judge disposed of the writ petition by directing the concerned respondent authority, that is, the appellant No. 3 to take appropriate steps and complete the mutation in favour of the respondents/writ petitioners (hereinafter referred to as the writ petitioners) subject to compliance of all formalities within a period 12 weeks from communication of the order.

3. The principal grievance of the writ petitioners before the learned single judge was that although, they were beneficiaries under the last Will and Testament of one Ajit Chandra Bagchi which was probated by an order passed by the High Court dated September 18, 2013, the authority concerned refused to act on the basis of the application dated October 7, 2013 for mutation of the names of the writ petitioners as lessees in respect of premises No. BK-222, Sector-II, Salt Lake City, Kolkata-700064.

4. According to the writ petitioners, in view of the decision of the Apex Court in State of W.B. and Another v. Kailash Chandra Kapur and Others reported in (1997) 2 SCC 387, bequests by way of a Will in favour of even strangers were allowed.

5. The learned single judge in view of the several orders passed by this court in respect of 20-Clause lease deeds under similar facts and circumstances, disposed of the writ petition with appropriate directions upon the concerned authority for mutating the names of the writ petitioners. The appellants have assailed the judgment and order impugned on the ground that the bequest to the petitioners should be considered in terms of the restrictions imposed by Clause 2(8) of the lease deed. According to the learned Advocate General, under Clause 2(8) a lessee was prevented by the covenant from assigning or transferring the premises without the previous permission of the Government in writing. The said Clause, according to him further stipulated that in case of transfer and assignment of the lease, the lessor had also retained the right of pre-emption and thus, bequest to a stranger should be considered as an assignment of the demised premises which would take place at a future date, that is, after the death of the testator. Keeping in view the restrictions imposed in Clause 2(8) it was urged, that the fact that the Government restricted transfer and assignment of the demised premises and also reserved to itself the right of pre-emption was indicative of the object of the Government which was to prevent strangers from entering into the premises. Permitting bequest of the property to strangers by Wills would defeat the very purpose of Clause 2(8) in the lease deed. According to the Learned Advocate General the said covenant put a specific bar and if the language of the same was interpreted with the very object behind inclusion of the said clause in the lease deed it would be amply clear that the Government intended to put a bar on transfers and assignments by way of a Will as well. He contended that bequest of the property in favour of the writ petitioners was nothing but assignment which would take effect posthumously if Clause 2(8) of the lease deed (being a contract between the lessor and lessee) is given a purposive interpretation. The intention behind making such Wills if read with the restrictive covenant in Clause 2(8) of the lease deed, would clearly indicate that in the instant case, the bequest to the writ petitioners was nothing but an assignment of the property inasmuch as, once the bequest was made and the Will was probated the lease between the Government and the lessee (testator) would come to an end. He further submitted that the lease deed was a contract between the part