TaxTMI 
TaxTMI 
TaxTMI 
2005 (4) TMI 657
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....od of nonpossession 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 ....
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....respondent No.1 had made illegal construction in the premises No.21/1/D in violation of the clause 6 of the letter of offer. An application was moved by Respondent No.1 before the High Court on 12.5.1987 for direction to the joint receivers to deliver possession of the premises No.21/1/C, Gora Chand Road and to execute the lease deed in respect of both the premises. The said application of the respondent No.1 was dismissed by the Division Bench of the Calcutta (Justice S.P. Das Gosh & Justice L.M. Ghosh) by order dated August 11, 1987. It was held that petitioner had not come with clean hands as applicant had raised illegal construction in premises No. 21/1/D as alleged by joint receivers. Joint receivers were also permitted by the Court on 15.1.1987 to take appropriate legal action against applicant. A suit was also filed against applicant in Sealdah Court . The Division Bench dismissed the application of applicant and declined to grant any relief, either to execute lease for both the premises, i.e., 21/1/D and 21/1/C or permit possession of premises No. 21/1/C. Aggrieved against the said order dated August 11, 1987 respondent No.1. preferred a Special Leave Petition before this C....
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.... that on such application being filed, it will be dealt with according to law. With these observations the Special Leave Petitions are dismissed." After this order dated January 2, 1995, present application was moved before the High Court for direction and orders upon the Administrators \026cum- Receivers, that is how the matter came up before the High Court. The High Court in view of the observations made by this Court allowed the application and directed as aforesaid. Aggrieved against this impugned order dated 26th November, 1997 passed by the High Court on application moved by Respondent No. 1 (herein) in First Appeal No.469 of 1980 (disposed of), the Special Leave Petition had been filed by the appellant. In the meanwhile some developments took place which has no material bearing, but it was brought to our notice that Respondent No. 1 went to America and she divorced her husband who is managing the School. It was also pointed out that after the death of Smt. Jyostnamoyee Pal Choudhary the property had further exchanged hands. But that does not concern us so far as the decision in the present appeal is concerned. Learned counsel for the appellant submitted that after October ....
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....g more students, therefore, the respondent is entitled to damages. It was also contended that as per the direction of this Court an application was moved by the respondent herein and the Division Bench had rightly approached the matter and directed appellant to grant lease for both the premises in terms of the order dated May 5, 1986. So far as the first question raised by the learned counsel for appellant that once appeal preferred by the brothers of the appellant challenging the grant of probate is dismissed on October 3, 1988, all the applications or pending matters come to an end, appears to be justified. Once the appeal stood dismissed then the property stood vested with the sisters. In this connection, our attention was invited to Sections 211, 227 and 247 of the Indian Succession Act, 1925. The said sections are reproduced below: " 211. Character and property of executor or administrator as such.- (1) The executor or administrator, as the case may be, of a deceased person is his legal representative for all purposes, and all the property of the deceased person vests in him as such. (2) When the deceased was a Hindu, Muhammadan, Buddhist, Sikh, Jaina or Parsi or an exempt....
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.... vested by force of statute with the whole of the estate, which belong to the testator at the time of his death." Learned counsel for the appellant also invited our attention to another decision of the Calcutta High Court in the case of Bajranglal Khemka & ors. vs. Sm.Sheila Devi & Ors reported in Vol.74 Calcutta Weekly Notes 444. In this case, the question was that what is the powers of the administrators pendente lite and it was observed that the property of the deceased vests with the administrator and any application moved by the petitioner pro interesse suo and stranger to the action, if aggrieved by the conduct of the general administrator whether he has a right to obtain redress in an action at law, it was observed that such application is maintainable against the administrator pendente lite on the original side. But the question with regard to the title of the property cannot be decided. It was observed that as per the Original Side Rules specified class of persons can apply and the relief can be asked for by such applicant. But it was observed that these Rules or the principles underlying them cannot be invoked by the petitioner whose application is directed against joint....
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....from the Court to lease out premises because the property had liabilities to discharge. The Court only permitted the parties to enter into the lease agreement and, the lease agreement was entered between the parties. The Court only granted leave to the applicants in terms of prayer "a" & "b" to let out the premises to Harvard House, for a period of 21 years as per the terms and conditions in the letter of offer dated November 12,1985. Therefore, it was not an order of the Court to lease out the property but only permission was granted to the Joint Receivers to proceed with the lease agreement of the scheduled property. It was not the direction of the Court that the appellant shall enter into lease agreement. It was only a permission and that cannot be treated as an order of the Court, as if, that Cour had leased out the premises. Therefore, this should be made clear that the lease agreement was entered into by the Joint Receivers with the permission of the Court because the scheduled property was subject matter of the first appeal. Once the first appeal is dismissed then property no more remain custodia legis and joint receivers stand discharged. In this connection reference may be....
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....assed by the High Court in purported observation by this Court which was made in ignorance of the fact that the appeal had been disposed of, the High Court would not acquire any jurisdiction to pass any order. The High Court at the relevant time had no jurisdiction to pass the order when the matter had already been disposed of by it. Therefore, the order passed by the High Court cannot be sustained. The next question is what is the effect of two orders passed by the High Court. One of the scheduled properties i.e. Premises No. 21/1/D was given by the Joint Receivers to the respondent and possession thereof was handed over to them on 16th June, 1986. The respondent no. 1 made certain construction therein and, therefore, joint receivers moved the High Court for appropriate action in the matter, the respondent No. 1 also moved the High Court for direction, for possession of premises 21/1/C and to execute lease deed for premises 21/1/D and 21/1/C. That matter was disposed of by the Division Bench of the High Court on 11th August, 1987 and in that the Division Bench passed a detailed order not to offer the possession of the premises bearing No. 21/1/C or execution of lease for both pre....
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....yer by the applicant for the refund of those amounts it would not proper for the Court to pass any order. However, the Court observed that since the parties already moved the court for modification of order dated 5th May, 1986 on 22nd July, 1987 the applicant would not be left without any remedy regarding these amounts on the analogy of the principles in Section 22(2) of the Specific Relief Act, 1963 and accordingly, the Division Bench declined to grant any relief in this application. However, the Division Bench took into consideration that the respondent herein has already filed a suit in the Civil Court on May 3, 1989 praying for specific performance of the agreement for lease, the leave to sue the Joint Receivers was necessary, therefore, after hearing the parties observed that the dismissal of the application of the Respondent No. 1 herein on 11th August, 1987 would not pose any impediment to grant leave to sue the Joint Receiver-cum- Administrators in respect of Premises No. 21/1/D for a suit pending between the parties. But it was made clear that the Court had not gone into the merits of the respective contention that whether despite the violation of the term No.6 in the lett....
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....so, all the material facts were not brought to the notice of this Court, that meanwhile the first appeal out of which all the litigations arose had already stood disposed of by way of compromise on 3rd October, 1988. However, this Court made observation under the impression that the first appeal was still pending. Had this fact been brought to the notice of the Court perhaps these observations would not have been made. However, after the disposal of both the special leave petitions by the Order dated 2.1.1995, an application by the respondent No.1 herein before the Division Bench of Calcutta High Court inspired by the observation of this Court was not warranted. The important fact was suppressed from this court that meanwhile appeal had been dismissed and property was no more custodia legis. Yet it was contended before this Court that since the suit filed for illegal construction had been dismissed for non-prosecution and no application for restoration of the suit has been moved, as per Clause 6 (ii) of the Offer letter which was accepted by the Court expressly contemplated the internal modification at the expense of lessee which landlord was supposed to permit, these contentions....
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....ur of Respondent No. 1. The equity requires in the matter that the Court permitted Joint Receivers to enter into a lease with the respondent No.1, it would be unfair to leave the respondent No.1 high and dry at this distance of time. The Division Bench by its order dated 4th December, 1988 did not grant any relief except to sue the joint receiver for execution of the lease deed with regard to the premises No. 21/1/D but denied the possession of the premises No. 21/1/C or execution of lease deed for this property. Therefore, we are not inclined to pass any order with regard to the possession or execution of lease for Premises No. 21/1/C and set aside the order of High Court. But so far as Premises No. 21/1/D is concerned, though no lease was executed but possession was handed over to the respondent No. 1 herein on 16th June, 1986 and they are in possession since then. Therefore, we direct that the appellant shall execute the lease deed for remaining period of the 21 years of lease from 16th June, 1986 on same terms and conditions as contained in offer letter dated 12th November, 1985 and the respondent shall pay arrears of rent, if not paid so far and all other money in terms of the....