Specific lease provisions permitting a nominee designated by heirs to succeed a deceased lessee override general restrictive covenants against assignment, allowing for the legal recognition of the nominee as a lessee without separate lessor consent.

JUDGMENT :

Sabyasachi Bhattacharyya, J.

In Re: CAN 1 of 2026

1. In view of sufficient explanations having been given, CAN 1 of 2026 is allowed, thereby condoning the delay in filing MAT 1949 of 2025.

2. There will be no order as to costs.

In Re: MAT 1949 of 2025

3. The present appeal has been preferred against an order whereby the learned Single Judge set aside an order passed by the appellant/Visva Bharati, refusing to mutate the subject property in the name of the respondent Smt. Geeta Ghosh, the wife of late Priyabrata Ghosh.

4. Learned counsel appearing for the appellants argues that in terms of Clause 10 of the parent lease deed executed in favour of late Gyan Ghosh, the ancestor of Priyabrata Ghosh, in the year 1951, the lessee will not, without the consent in writing of the lessor first had and obtained, assign, transfer, let out or mortgage the benefit of the lease thereby granted to any person, provided that such consent will not be withheld in case of a transfer, assignment or mortgage in favour of persons who are life members of the Visva Bharati.

5. Learned counsel submits that at that juncture, Visva Bharati was a registered society.

6. After Visva Bharati became a statutory body in terms of the concerned statute, that is, the Visva Bharati University Act, 1951, the concept of life members has become obsolete.

7. However, even otherwise, a bequest by way of a Will comes within the purview of the term “assign” in terms of Clause 10 and is precluded without a prior written consent in writing from the lessor, that is, Visva Bharati.

8. It is submitted that in the present case, although after the demise of Gyan Ghosh, the original lessee, the plot was mutated in the name of his son Priyabrata Ghosh, the same was done on the basis of his nomination by the other heirs and not on the strength of any transfer/assignment/Will.

9. Subsequently, on the demise of Priyabrata, who left behind as his heirs the present respondent Geeta Ghosh (his widow) and three sons, the mutation was sought by the respondent on the strength of the Will executed by her husband, Priyabrata Ghosh.

10. Learned counsel argues that the said bequest, without prior consent in writing of the lessor/Visva Bharati, was invalid in the eye of law and contrary to the terms of the parent lease and, as such, no mutation could be granted in favour of Geeta Ghosh on the strength of the said Will.

11. Learned counsel further argues that in the judgments which were relied on by the learned Single Judge, the proposition laid down by the learned Single Judge was not enunciated.

12. Seeking to distinguish the said judgments on facts as well as law, learned counsel submits that in paragraph no.9 of State of West Bengal and another vs. Kailash Chandra Kapur and others reported at (1997) 2 SCC 387, the Hon’ble Supreme Court categorically observed that in their generic sense, the words “assign” or “transfer” include every kind of transfer of the property from one to another, including testamentary disposition.

13. It was further held that thereby it would be construed that in an appropriate case where the property was assigned by testamentary disposition, it may be a transfer for the purpose of a pa