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Smt. Kanta Devi Agarwal & Ors. v. State Of West Bengal & Ors.

Calcutta High Court

Dec 8, 1998

Judgment

Subsequent
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Structured Summary of the Opinion (Nirendra Krishna Mitra, J.)

Factual and Procedural Background

This civil order concerns whether the State Government could refuse to mutate the names of the writ petitioners who were legatees under the Will executed by the original lessee, Shri Anil Kumar Bhattacharjee, in respect of Plot No. 147 (about 5.4344 Kathas) in Block-EC, Sector-I, Bidhannagar, Salt Lake City.

Relevant facts as stated in the writ application:

Shri Anil Kumar Bhattacharjee was granted a 999-year lease of the plot; the lease was accepted and registered on 6 March 1986 and he possessed the property.
On 27 July 1992 the lessee executed a Will bequeathing the leasehold premises to the present writ petitioners; the lessee died on 4 October 1992.
The executor obtained probate in Probate Case No. 21 of 1993; the natural legal heirs (widow and son) consented to the grant of probate.
After probate the writ petitioners took possession. The executor applied on or about 15 March 1993 to the respondent authority for mutation, enclosing the probate order.
No action was taken despite reminders; the writ petitioners filed a writ petition on or about 29 September 1993 seeking a writ of Mandamus to compel mutation of their names as joint lessees in place of the deceased lessee.
The writ application was disposed of by the court on 27 June 1995 directing the authorities to dispose of the mutation application within 12 weeks and granting interim status quo. The order was communicated to respondent No. 2.
After hearing the petitioners, the authority rejected the mutation application on 29 September 1995 (annexure 'F'), relying on clauses 2(7), 2(8) and 2(12) of the lease form and concluding that prior government permission was required for transfers and that clause 2(12) was subordinate to clause 2(8) and 2(7).
The writ petitioners challenged the rejection order (annexure 'F') before the High Court.

Legal Issues Presented

Whether the State Government could lawfully refuse to mutate the names of the legatees (writ petitioners) under the probated Will of the deceased lessee in respect of the leasehold property.
Whether a bequest made by Will constitutes a "transfer" within the meaning of clauses 2(7) and 2(8) of the lease deed and section 5 of the Transfer of Property Act, 1882, thereby attracting the requirement of prior government permission for mutation.

Arguments of the Parties

Writ Petitioners' Arguments (as presented)

Counsel for the writ petitioners (Mr. Chatterjee) contended that a Will is not a "transfer" as envisaged by clauses 2(7) and 2(8) of the lease deed; therefore, the question of obtaining prior permission from the State before executing the Will did not arise.
Reliance was placed on an unreported Appeal Bench decision of the High Court in State of West Bengal v. Kailsh Chandra Kapur (Matter No. 1329 of 1995; Appeal No. 183 of 1995), where the Appeal Bench distinguished assignments/transfers from testamentary dispositions and held that there was no requirement of prior written sanction by the State Government for testamentary disposition under the lease form.

State/Respondents' Position (as recorded in the rejection order)

The respondent authority rejected the mutation application on the basis that clauses 2(8) and 2(12) contain restrictions on transferring any right or title, and that clause 2(12) (which permits making a Will) is subordinate to clauses 2(8) and 2(7), which impose pre-conditions for transfer.
The authority observed that the original lessee did not take permission from the Government for making a Will in favour of persons not related to him and that no order from any competent court was produced to counter this interpretation.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
M. Vasudeva Muthu Shasthry v. M. Vittal Shastry, AIR 1922 Madras 456 (Full Bench)	Held that the concept of "transfer of property" applies only to alienations inter vivos and has no application to disposals by Will; a Will does not operate until the death of the testator.	The court relied on this authority to support the proposition that a Will is not a "transfer" within the meaning of the Transfer of Property Act and thus not governed by the inter vivos transfer restrictions in the lease.
Raja Surendra Vikram Singh v. Rani Munia Kumar, AIR 1944 Oudh 65	Supported the view that a will is not a transfer; disposals by will do not transfer property at the time of execution.	The court cited this decision to reinforce the legal distinction between inter vivos transfers and testamentary dispositions when interpreting the lease restrictions and statutory definition of "transfer."
Lala Devi Dass v. Panna Lal, AIR 1959 J & K 62 (Full Bench)	Held that disposal of immovable property by will does not amount to a transfer because property does not pass at the time the Will is executed; a will expresses intention for devolution after death.	The court relied upon this Full Bench authority to confirm that testamentary dispositions fall outside the statutory and contractual concept of "transfer" relied upon by the respondents.
State of West Bengal v. Shri Kailsh Chandra Kapur (Matter No. 1329 of 1995; Appeal No. 183 of 1995) (unreported Appeal Bench decision)	Distinguished assignments/transfers from testamentary dispositions under the lease deed clauses; held that the lease conditions requiring prior written permission applied to assignments/transfers but not to testamentary dispositions.	The petitioners' counsel relied on this unreported Appeal Bench decision. The court treated it as supportive authority showing that testamentary dispositions were not meant to be treated as assignments/transfers requiring prior government sanction under the lease form.

Court's Reasoning and Analysis

The court undertook a statutory and doctrinal analysis focused on the meaning of "transfer of property" and the nature of a Will:

The court cited section 5 of the Transfer of Property Act, 1882, which defines "transfer of property" as an act by which a living person conveys property, in present or future, to one or more other living persons. The definition thus contemplates an act inter vivos by a living person.
From the statutory language the court observed that the phrase "living person" excludes disposition by Will, because a Will operates only on the death of the testator and is not an alienation inter vivos.
The court supported this interpretation with authority: the Full Bench of the Madras High Court (M. Vasudeva Muthu Shasthry) and other decisions (Raja Surendra Vikram Singh; Lala Devi Dass), all holding that transfers apply to alienations inter vivos and not to testamentary dispositions, and that a Will expresses an intention operative after death rather than effecting a present transfer.
The court also referred to the statutory definition of "Will" (clause (h) of section 2 of the Indian Succession Act, 1925) confirming that a Will is a legal declaration of the intention of a testator regarding his property to be carried into effect after his death.
Applying these principles to the facts—where the Will was probated, probate was produced, the legatees were in possession, and the natural heirs had consented—the court concluded that the respondent authority's refusal to mutate on the ground that the Will amounted to a transfer requiring prior government permission could not be sustained in law.
Consequently, the impugned rejection order (annexure 'F') was quashed and the court directed the respondent to effect mutation within a specified mandatory period.

Holding and Implications

Holding: Petition allowed.

Direct consequences ordered by the court:

The impugned order rejecting the mutation application (annexure 'F') is quashed.
The respondent concerned is directed to mutate the names of the writ petitioners in respect of the disputed leasehold property within eight (8) weeks from the date of communication of the order; the time limit is declared peremptory and mandatory.
The civil order is allowed without any order as to costs.

Implications beyond the parties: The opinion reasons from established statutory definitions and precedents to conclude that testamentary dispositions do not constitute "transfers" within the meaning of section 5 of the Transfer of Property Act and clauses of the lease relied upon by the respondent. The opinion does not announce that it is laying down a novel principle; it applies existing authorities to quash the authority's refusal to mutate on the ground that a Will is not a transfer subject to the cited lease restrictions.

Petition allowed

B.K.D

Show all summary ...

Nirendra Krishna Mitra, J.—The short point involved in this Civil Order is, whether the State Government could refuse to mutat the name of the writ petitioners who were the legatees under the Will executed by the original lessee Shri Anil Kumar Bhattacharjee in respect of a plot of land in the Bidhannagar, Salt Lake City, and which was duly probated.

2. In short, the facts of this case as stated in the writ application, inter alia, are that one Shri Anil kumar Bhattacharjee, since deceased, was granted a lease in respect of Plot No. 147, measuring about 5.4344 Kathas, in Block-EC, in Sector-I of Bidhannagar, Salt Lake City for 999 years by the Government of West Bengal. The lease was duly accepted and registered on 6th of March, 1986 and the lessee duly got possession of the above lease hold property and was all long in possession and occupation thereof. The said leasee knew the writ petitioners from their childhood who were like his family members. The writ petitioners used to respect the said lessee like their own father who also used to love them like his own daughters. The said lessee on or about 27th July, 1992 executed a Will and Testament wherein he made a bequest of the said lease-hold premises in favour of the writ petitioners and thereafter the said lessee died on 4th October, 1992. The executor to the said Will obtained probate of the said Will in probate Case No. 21 of 1993 from this Hon'ble Court and the natural legal heirs of the deceased, namely, his widow and his son, duly gave their consent to the grant of probate of the said Will.

3. After grant of probate, the writ petitioners obtained possession of the demised premises from the Executor to the above Will, and since then, they are in peaceful possession thereof. After the grant of probate, the Executor of the said Will made an application on or about 15th March, 1993 before the respondent No. 2 for mutation of the said lease-hold premises in the name of the writ petitioners annexing therewith a copy of the order granting probate to the said Will.

4. Inspite of repeated reminders, however, no action was taken by the respondents to mutate the said premises in the name of the writ petitioners as lessees in place and stead of the deceased Anil Kumar Bhattacharjee and as such, finding no other alternative, the writ petitioners on or about 29th September, 1993 filed a writ petition, inter alia, praying for an issuance of writ of Mandamus commanding the respondent/authorities to mutate the name of writ petitioners as Joint Lessees in respect of the aforesaid lease-hold premises in place of the deceased lessee Anil Kumar Bhattacharjee by virtue of the probate granted as aforesaid. The said writ application was disposed of by me on 27th June, 1995 directing the respondent/authorities to dispose of the aforesaid application for mutation within a period of 12 weeks from the date of communication of the order and an interim order of status-quo in respect of the said property was also passed, till the disposal of the application for mutation. The said order was duly communicated by the writ petitioner to the respondent No. 2. The writ petitioners were then asked to appear before the authority concerned to represent their case which they did. Ultimately, on 29th September, 1995 the respondent authority rejected the said application for mutation made by the writ petitioners for mutating their names in place and stead of the deceased lessee Anil Kumar Bhattacharjee in respect of the said premises holding, inter alia, as follows:

“In the present case which is lease hold property there are several restrictions in transferring any right of title in Clause 2(8) and 2(12), though there is also a provision of Clause 2(12) for making will of the lease property. In my view the Clause 2 of the lease deed forms are single scheme of operation of the terms of lease and as such Clause 2(12) is subordinate to Clause 2(8) and Clause 2(7) of the lease deed as they should be read inclusive of each other. In the instant case the petitioner or the original lessee did not take any permission from the Govt. for making any will in favour of the person not related to him. No order of any competent court of law or Hon'ble High Court was produced before me by the applicant to the contrary of the above interpretation of law.”

5. The said rejection order being annexure ‘F’ to the writ application is being challenged before this court by the writ petitioners in the present writ application, inter alia, on the ground that a bequest made under a Will is not a transfer as envisaged under the said Deed of Lease and/or under the Transfer of Property Act, 1882 in as much as, all transfers mentioned in the respective clause of 2(7) of the disputed lease deed are all transfer intervivos, but a will and/or testamentary document is not a transfer invervivos, it is not even a transfer of any right to any property as envisaged under the Transfer of Property Act, 1882.

6. Heard Mr. Chatterjee, learned senior counsel on behalf of the writ petitioners and Mr. Pal, learned Advocate on behalf of the State-respondents.

7. Mr. Chatterjee contends, inter alia, that the will is not a transfer as envisaged under the provisions of Clauses 2(7) and 2(8) of the disputed lease deed (P-4) and as such, question of taking prior permission before the will was executed by the erstwhile lessee, did not arise at all. In support of his contention, Mr. Chatterjee also relied upon an unreported Appeal Bench decision of this Hon'ble Court, in the case of State of West Bengal v. Shri Kailsh Chandra Kapur (Matter No. 1329 of 1995.Appeal No. 183 of 1995). The facts of the above appeal are similar to these of the present case, in as much as, the writ application, out of which the above appeal had arisen, was moved by the legatees of a Will executed by the lessee of a property in Salt Lake. The legatees after getting probate of the said will applied for mutation and that was rejected by the Salt Lake Authority. The writ application, was allowed by the trial court directing the respondents to mutate all the names of the legatees. The State of West Bengal and the other State-respondents preferred the above appeal. The Appeal Bench dismissed the appeal holding, inter alia, that upon reading all the clauses 7, 8 and 12 of the lease deed it was abundantly clear that a distinction had been made between the cases of assigments and transfer of the lease-hold property in one hand and the cases of testamentary dispositions on the other. There was a pre-condition for seeking previous permission of the Government in writing in cases of assignments or transfers of the lease-hold property, but there was none in the case of testamentary disposition. Such being the position, the State Government could not turn round and contend that testamentary disposition would be treated like an assignment and/or transfer in terms of the lease and no testamentary disposition should be made without previous sanction in writing by the State Government.

8. Let us now examine the legal aspect of the matter, section 5 of the Transfer of Property Act has defined “Transfer of Property” as follows:

“In the following sections' transfer of property’ means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself, or to himself and one or more other living person; and ‘to transfer property’ is to perform such act.

In this section ‘living person’ includes a company or association or body of individuals, where incorporated or not, but nothing herein contained shall affect any law for the time being in force relating to transfer of property to or by companies, association or bodies of individuals.”

9. The words ‘living person’ as figured in the said definition excludes disposition by will, in as much as, a will operates only on the death of the testator. I find support on this point from the Full Bench decision of the Madras High Court in the case of M. Vasudeva Muthu Shasthry v. M. Vittal Shastry, AIR 1922 Madras, 456 wherein it has been held at page 468 of the Judgment that the transfer of property applies only to alienations intervivos and has no application regarding disposal of property by Will. The reason is, that transfer is an alienation inter vivos but a will on the otherhand, is not a form of the transfer and the Deed of Transfer operates as instanti, i.e from the date of its execution; a Will comes into operation on the death of the testator. Reference may also be made to the definition of ‘will’ as given in Clause (h) of section 2 of the Indian Successiion Act, 1925 which is quoted below:

“(h) ‘Will’ means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death.”

(Emphasis is mine)

10. Therefore it is quite clear that ‘Will’ does not come within the perview of ‘transfer’ as it takes effect only with the death of the testator. Reference may be made to the decision in the case of Raja Surendra Vikram Singh v. Rani Munia Kumar, AIR 1944 Oudh 65. The Full Bench decison of the Jammu & Kashmir Higher Court in the case of Lala Devi Dass v. Panna Lal, AIR 1959 J & K 62, also held on the same line relying upon the above two reported decisions. In paragraph 16 of the said Judgment, it has been observed, inter alia, that disposal of immovable property by will would not amount to a transfer inasmuch as, the property does not pass on to the donee at the time the Will is executed. It is merely an intention expressed by the testator with respect to his property that after his death it should devolve on the donee.

11. The above discussions, therefore, would make it quite clear that the action of the respondent concerned in refusing to mutate the names of the writ petitioners in respect of the disputed property as per the Original Probated Will of the original deceased lessee/testator cannot be sustained in law and as such, the impugned order being annexure ‘F to the writ application stands quashed.

I, accordingly, direct the respondent concerned to mutate the names of the writ petitioners in respect of the disputed property within 8(eight) weeks from the date of communication of this order and the time limit so fixed is peremptory and mandatory.

The civil order is thus allowed without any order as to costs.