CASE NO.:

Appeal (civil) 1103 of 1998 PETITIONER:

Subhadra Rani Pal Choudhary RESPONDENT:

Sheirly Weigal Nain & Ors.

DATE OF JUDGMENT: 06/04/2005 BENCH:

ASHOK BHAN & A.K. MATHUR JUDGMENT:

J U D G M E N T A.K. MATHUR, J.

This appeal is directed against an order passed by learned Division Bench of Calcutta High Court dated November

26,1997 in First Appeal No.469 of 1980 whereby the Division Bench of the High Court allowed the application of the Respondent No.1 and directed the appellant to execute the lease deed with regard to premises Nos.21/1/C and 21/1/D, Gora Chand Road, Calcutta-700

014 in terms of the order dated May 5, 1986 within a period of six weeks from the date of order i.e. November 26,1997 for a period of

21 years commencing from the date of grant of relevant permission by the Court, in default, it would be open to the respondent No.1 to apply before the trial court for execution of the lease. It was further directed that the respondent No.1 was to pay the arrear of occupation charges after adjustment of the amounts already paid by him with regard to the concerned properties and excluding the period of non-

possession of the premises No.21/1/C in terms of the letter of offer dated November 12, 1985 within four weeks to the receiver and the trial court may issue necessary directions to the receiver with regard to disbursement of the said amount. Aggrieved against this order, the present appeal was filed by the appellant.

This case involves a very chequered history. There are two properties bearing No.21/1/C and 21/1/D at Gora Chand Road, Calcutta. The said properties initially belonged to one Smt.

Hemantabala Roy, the mother of the appellant. She bequeathed the property in favour of her two daughters, Subhadra Rani Pal Choudhary (the appellant herein) and Jyotsnamayee Pal Choudhary since deceased. Both were joint executrix under the will. The will was executed by Smt. Hemantabala Roy in favour of these two daughters on April 2, 1971. The said will was registered on April 12, 1971. Both the sisters moved an application for grant of probate but the brothers of the appellant contested the probate. Therefore, Original Suit No.5 of 1975 was registered. However, probate was granted in favour of the daughters. Thereafter, the brothers of the appellant preferred an appeal before the High Court being First Appeal No.469 of 1980. Pending First appeal, the High Court appointed Smt.

Jyotsnamoyee Pal Chowdhary and Smt.Subhadra Rani Pal Chowdhary as administrators \026 cum- joint receivers pendente lite by order dated 27th April 1981. During the pendency of this matter, an application was filed for seeking permission to let out both these premises i.e. Nos.21/1/C and 21/1/D at Gora Chand Road, Calcutta.

The Division Bench of the High Court granted permission on April 30, 1985 to proceed and invite offers. Offers were invited by issuing advertisement on November 20, 1985 and an offer was made by Harvard House, Montessori School on November 12, 1985, respondent No.1 was In-charge of the said school. The respondent No. 1 being the highest bidder; her bid was accepted and Court by order dated May 5,1986 permitted joint receivers to lease out premises in favour of the respondent No.1. The order dated May 5, 1986 reads as under :

" Heard learned counsel for the parties.

It appears that the offer made by Harvard House, 17 Camac Street, Calcutta-700 017, is the highest. Learned counsel for the opposite parties, appellants also agrees to this.

Leave is accordingly granted to the applicants in terms of prayers (a) and (b) of this application to let out the premises to Harvard House, 17 Camac Street, Calcutta-700 017 for a period of twenty one years on terms contained in the letter of offer dated November 12, 1985 as annexed to the affidavit-in-reply to this application.

This application is disposed of as above."

As a result of this, the offer of respondent No.1 who being the highest bidder was accepted and the rent was fixed at Rs.6500 per month with other co