In the High Court at Calcutta Civil Appellate Jurisdiction Appellate Side The Hon’ble Justice Sabyasachi Bhattacharyya And The Hon’ble Justice Uday Kumar F.A. No.171 of 2024 Atasi Saha and Another Vs.

Somnath Sarkar For the appellants : Mr. Sudipto Mitra, Mr. Kushal Paul For the respondent : Mr. Sabyasachi Chowdhury, Sr. Adv., Mr. Manabendra Saha Roy, Mr. Sounak Bhattacharya, Mr. Anirban Saha Roy, Mr. Shreyan Bhattacharya, Mr. Sounak Mondal, Mr. Abhirup Haldar Heard on : 03.12.2024, 27.02.2025, 04.03.2025 Hearing Concluded on : 06.03.2025 Judgment on : 18.03.2025 Sabyasachi Bhattacharyya, J.:-

1. The defendants in a suit for recovery of possession have preferred the present appeal against a judgment granting eviction against the appellants on the premise that the appellants are trespassers in respect of the suit premises.

2. The vortex of the dispute is a deed of settlement executed by the admitted original owner Kalikanta Sarkar on May 11, 1963 and the interpretation thereof. The settlor Kalikanta left two sons, namely Nemai and Nilmani, whose wives were respectively Rekha and Sondha. The plaintiff/respondent is the son of Nilmani and Sondha whereas the defendant/appellant no.1 is the daughter of Nemai and Rekha. The plaintiff is the sole male child of his parents, having a sister as well, whereas Nemai and Rekha only had a daughter, that is, the defendant/appellant no.1 and no male heir.

3. Learned counsel for the defendants/appellants contends that the suit, as framed, being only for recovery of possession, is bad in law and in its present form, since no declaration of title of the plaintiff has been claimed, although the plaintiff’s title is clouded in view of Rekha having executed a registered gift deed in favour of the appellant no.1 by virtue of her absolute title claimed through the disputed deed of settlement.

4. Secondly, it is contended that the intention of the settlor, Kalikanta, was not to exclude all the female progeny of his family but only his daughters, the reason for which was cited in the deed itself to be that the said daughters were married and living with their respective husbands.

5. It is argued that the property was vested absolutely in Rekha and Sondha, the daughters-in-law of the settlor. The subject-property was divided into Schedules “B” and “C”, which were demarcated and transferred to Rekha and Sondha respectively. It is submitted that although the deed provided that the property would vest in Rekha and Sondha in respect of their respective shares, with the rider that if any of them had male heirs, the property would devolve upon such male heirs, since Sondha already had a son living at the time when the deed was executed, whereas Rekha had none, the intention of the settlor was clear, to the effect that the devolution on male heirs of Rekha and Sondha from their respective husbands would be restricted to the respective shares of Rekha and Sondha exclusively. Thus, on the demise of Rekha, her portion of the property could not have devolved on the plaintiff Somnath, who is the son of Sondha, by a cross-devolution between the already-demarcated portions of the original property.

6. Learned counsel appearing for the appellants further argues that absolute title was vested in Rekha and Sondha in respect of their demarcated portions, which is also evidenced from the restriction of transfer of their respective portions being limited to the lifetime of the settlor, his wife and the respective husbands of Rekha and Sondha. After the demise of the said limited interest holders, there was no fetter imposed on Rekha and Sondha to transfer their properties. Thus, such absence of restraint clearly denotes that absolute title was vested in Rekha and Sondha respectively, retaining only lifetime interest of the intermediate interest-holders.

7. Learned counsel for the appellant places reliance on Ram Gopal v. Nand Lal and others, reported at AIR 1951 SC 139 for the proposition that when the property is settled for ab