SUBHADRA RANI PAL CHOUDHARY Vs. SHEIRLY WEIGAL NAIN

JUDGEMENT

(1.) 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.

(2.) 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-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 :

(3.) 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.6,500 per month with other conditions. The possession of the premises No.21/1/D , Gora Chand Road, Calcutta was given to respondent No.1 on June 16, 1986 in terms of the offer made by respondent No.1. The respondent No.1 paid a sum of Rs.1,20,000 as security and rent at the rate of Rs.6,500/- per month and Rs.900/- for the maintenance of driving ways and lawns. It was alleged that the respondent No.1 also paid a sum of Rs.10,000/- towards income-tax in respect of premises No.21/1/C. But no possession of the premises No.21/1/C was given to respondent No.1 nor any lease deed was executed in respect of premises No.21/1/D. However, a draft lease deed was sent to the joint receivers but it was not executed on the ground that the 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 and 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 Court. Meanwhile, the First Appeal filed in a probate proceeding by the brothers of the appellant was disposed off by the High Court by way of compromise between the parties on October 3, 1988. Respondent No.1 filed T.S. No. 41 of 1989 before learned District Judge, Alipore on May 3, 1989 for specific performance of the agreement arrived at on May 5, 1986 in pursuance of the order passed by the High Court. Then again another application dated 31-3-1989 was moved before the High Court to sue the joint receivers for specific performance of the agreement for granting lease of both the premises. On December 4, 1989 permission to sue the joint receivers in respect of premises No.21/1/D was granted by the High Court. But no order was passed in respect of premises No.21/1/C. Aggrieved against this order the respondent No.1 filed S.L.P. (C) No.7489 of 1990 before this Court. Both the Special Leave Petitions came up before this Court and they were dismissed by order dated January 2, 1995. This Court passed the following order which reads as under: