SARASWATI MONDAL Vs. SACHIDULAL SAHA

JUDGEMENT

(1.) These two appeals were heard analogously as those are preferred against the common judgment dated 30th August, 2000 passed by the learned Judge, 8th Bench, City Civil Court at Calcutta in two suits being Title Suit No. 2234 of 1981 and Title Suit No. 1513 of 1989 thereby decreeing both the suits.

(2.) The facts giving rise to filing of those two suits may be summed up thus: (a) One Gopi Kanta Saha, the father of the parties had eight annas share in premises No. 5A, Ram Mohan Saha Lane, Calcutta. The said Gopi Kanta Saha executed a Will dated 29th July, 1966 bequeathing his right, title and interest in the property in favour of his wife Sushilabala. On May 14, 1968 the said Gopi Kanta Saha died living behind his widow Sushilabala, one son, the respondent No. 1 herein and two daughters, the appellant and respondent No. 2 respectively. (b) On 17th September, 1968 Sushilabala filed an application for grant of probate of the Will of Gopi Kanta Saha dated 29th July, 1966 before the Original Side of this Court which was ultimately marked as Testamentary Suit No. 8A of 1973. On June 11, 1969 the respondent No. 1, the son of Gopi Kanta Saha filed another application for grant of probate of an alleged Will dated 30th June, 1968 said to have been executed by Gopi Kanta Saha and the said application was subsequently marked as Testamentary Suit No. 5 of 1971. (c) On 14th September, 1973 Testamentary Suit No. 8A of 1973 was allowed thereby granting probate in respect of Will dated 29th July, 1966 in favour of Sushilabala and at the time of disposal of the said proceedings, an agreement was entered into between Sushilabala and her son, the respondent No.1 herein, regarding future devolution of interest in the property which is the subject-matter of the Will and such terms of settlement were directed to be kept on record on that day. The other Testamentary Suit being Testamentary Suit No. 5 of 1971 filed by the son of the testator for grant of probate of the alleged Will dated 30th April, 1968 was dismissed. (d) According to the agreement that was filed at the time of disposal of the probate proceedings, Sushilabala should have life interest in the premises in question and possession thereof without power of alienation and on the death of Sushilabala, the said property should vest absolutely in favour of her son. It was further stipulated that Sushilabala should execute a deed of settlement in favour of her son subject to her life estate and right of possession before issue of probate to her and the said son would be continuing to live in a portion of the said premises and to pay Rs. 60/- per month to Sushilabala by way of maintenance. It was further stated that if the said son did not reside in the said premises, he would not pay the sum of Rs.60/- but Sushilabala should be at liberty to let out that portion of the premises. (e) Ultimately, on March 1,1976 probate of Will dated 29th July, 1966 was issued in favour of Smt. Sushilabala although, as per agreement entered into between the parties, Sushilabala did not execute any deed of settlement and at the same time, it appears that while the learned Advocate for the respondent No. 1 asked Sushilabala to execute the deed, the learned Advocate for Sushilabala expressed refusal on her part to execute such deed on 4th April, 1974. (f) On May 26, 1976 the learned Advocate for the respondent No. 1 again called upon Sushilabala to execute deed of settlement but no such deed was executed. Thereafter on January 21, 1978 the respondent No. 1 filed an application before the Original Side of this Court for issue of fresh probate with the copy of the terms of settlement. Ultimately, such application was rejected on 15th March, 1978 refusing the prayer for grant of fresh probate. (g) On 13th November, 1978 Sushilabala filed a suit under section 41 of the Presidency Small Causes Court Act being Suit No. 4403 of 1978 for eviction of her son, the respondent No.1 and on 20th March, 1979 the said Suit No.4403 of 1978 was decreed in favour of Sushilabala. (h) On June 29, 1979 Sushilabala executed a registered Will bequeathing her right in the property in favour of her younger daughter, namely, Saraswati, the appellant herein and on 16th March, 1980 Sushilabala died. The present appellant filed an application for grant of probate of the Will of Sushilabala dated 29th June, 1979 which gave rise to Testamentary Suit No. 15 of 1981. (i) During the pendency of the aforesaid Testamentary Suit No. 15 of 1981, the respondent No. 1 herein filed Title Suit No. 2234 of 1981 in the City Civil Court at Calcutta for declaration that the present appellant had no right of interference with his right, title and interest in half share of the premises No. 5A, Ram Mohan Saha Lane, Calcutta and for injunction. (j) During the pendency of such suit, on August 24,1982 the Testamentary Suit No. 15 of 1981 was allowed thereby granting probate of the Will of Sushilabala in favour of her daughter, the appellant herein. The respondent No. 1 herein filed Appeal No. 141 of 1985 against grant of probate of Will of Sushilabala but the same was dismissed with costs on 23rd February, 1989. (k) On 28th August, 1989, the other suit being Title Suit No. 1513 of 1989 was filed by the respondent No. 1 for the declaration that the decree passed by the Small Causes Court in Suit No. 4403 of 1978 was fraudulent and not binding on him and that he was absolute owner and for injunction. Both the aforesaid suits being Title Suit No. 2234 of 1981 and Title Suit No. 1513 of 1989 filed by respondent No. 1 were heard analogously and by the common judgment dated 30th August, 2000 the learned Trial Judge decreed both the suit thereby declaring that respondent No. 1 is the absolute owner of undivided half share of the property described in the schedule of the plaint. It was further declared that the present appellant had no right to interfere with the right, title and interest of respondent No. 1 in respect of 8 annas share in the premises No. 5A, Ram Mohan Saha Lane, Calcutta and the present appellant was restrained from dealing with respondent No.l's property being 8 annas share in the aforesaid premises. The learned Trial Judge further declared right, title and interest of plaintiff in terms of settlement annexed with the decree of the Testamentary Suit No. 8A of 1973 filed before the Original Side of this Court and further declared that those terms are binding upon the ot er heirs of Sushilabala.

(3.) Mr. Audya, the learned Senior Counsel appearing on behalf of the appellant in both matters has contended that the learned Trial Judge erred in law in passing the decrees impugned herein by totally overlooking the fact that any separate agreement entered into between the parties at the time of disposal of probate application cannot be binding upon the parties unless those are enforced in accordance with law within the period of limitation. Mr. Audya contends that the separate agreement filed at the time of disposal of Testamentary Suit No. 8A of 1973 contemplated execution of a settlement deed in favour of respondent No. 1 by Sushilabala and although Sushilabala refused to execute such deed and the respondent No. 1 did not take steps for specific performance of such agreement through Court, the learned Court below erred in law in declaring such right in the suit filed by the respondent No. 1 long after the period of limitation. Mr. Audya contends that the probates, one in favour of Sushilabala and the other in favour of the present appellant are binding upon the respondent No.1 and as such, by virtue of those probates, his client has become absolute owner of the property. Mr. Audya, thus, prays for setting aside the decrees passed by the learned Trial Judge.