SHIBOPADA BHATTACHARJEE Vs. REKHA MUKHARJEE

JUDGEMENT

(1.) The twin suits viz. C.S. No. 73/88 and C.S. No. 75/88 for declaration, specific performance of contract and permanent injunction have been heard together for the sake of convenience and brevity as identical questions of law and fact are involved with the difference that the plaintiff and consideration amount in the two suits are different and whereas the former relates to western part of the building, in the latter eastern part is involved.

(2.) The miniaturised version of the plaintiff is that on the representation of defendant Nos.1 to 5 in or about June, 1980 that under the terms of a Deed of Settlement dated 21.01.50 created by their grandfather Kalidas Chatterjee, since deceased, the entire beneficial interest of premises No.110, Keshab Chandra Sen Street, Calcutta vested in them and the Trust created thereby had come to an end and they became absolute owners of the said premises since June, 1973 and were entitled to sell their right, title and interest in the premises, the plaintiffs Shibopada and Rabindranath entered into agreements in writing with them on 08.06.80 whereby the said defendants agreed to sell the disputed property to them at a consideration of Rs. 85,000/- and Rs. 80,000/- respectively. In pursuance of the said agreements, the plaintiffs paid a sum of Rs. 2501/- each to the defendants towards earnest money. On the request of the defendants' Advocate, the plaintiffs' Advocate returned the documents on 23.08.80 to the defendants' Advocate to enable him to answer the requisition-on-title sent by the plaintiffs' Advocate earlier followed by a request of the plaintiffs' Advocate through letter dated 22.09.80 to expedite answer the requisition-on-title intimating that the plaintiffs were ready and willing to complete the deed and to pay the balance consideration money. Instead of executing and registering a Deed of Conveyance, the defendants' Advocate by letter dated 13.10.80 informed the plaintiffs that defendant No.6 Ramdas Chatterjee, as a Trustee of the said Deed of Settlement, had instituted T.S. 1948/80 (?) in the City Civil Court at Calcutta claiming that the said defendants were not entitled to sell, let or otherwise alienate the property as the Trust contained in the said Deed of Settlement had not extinguished and obtained an order of injunction against the said defendants from selling and/or alienating the property and that steps were being taken by the said defendants for vacating the interim order of injunction on reopening of the Court after the Puja Vacation. The plaintiffs' Advocate requested the defendants', Advocate by a letter dated 01.09.83 to answer the requisition-on-title arid to inform the position of said T.S. No. 1948/80 followed by a further reminder dated 19.01.85 but to no effect. The said suit was ultimately decreed by the learned Judge, 3rd Bench, City Civil Court on 07.08.87 holding that the Trust created by the Deed of Settlement is still subsisting and defendant Nos. 1 to 5 as beneficiaries of the Trust had no right to dispose of the disputed premises except through defendant No.6 Ramdas Chatterjee. The said T.S. No. 1948/80 is a collusive suit where the material fact regarding the said agreement for sale was totally suppressed, the sole object being to defeat the right, title and interest of the plaintiffs under the said agreements. The above judgement and decree, which is not binding upon the plaintiffs as they were not parties to the suit, is wrong as defendant Nos.1 to 5 are majors and soujuris and the learned Judge failed to construe the purport and scope of the said Deed of Settlement. Despite reminders, defendant Nos.l to 5 wrongfully and illegally failed and neglected to perform specifically the obligation under the said agreement for sale and refused and still are continuing refusal and it is apprehended that they would sell, alienate and encumber the property in contravention of the agreement. In these circumstances, the suits were filed.

(3.) The suit is contended by defendant Nos.l to 5 by filing a written statement. Their case, in short, is that Kalidas Chatterjee, father of defendant No.6 and grandfather of defendant Nos.l to 5 executed a Deed of Settlement on 21.01.50 whereby he created a Trust in respect of his undivided interest in premises No.66, College Street, Calcutta and also in respect of his 16 annas share in premises No.110, Keshab Chandra Sen Street and appointed himself as the First Trustee and after his death his wife Bilwabarani Debi would be Trustee for her natural life and after her death defendant No.6 would become the Trustee. It was further directed that after the death of said settlor and his wife the Trust would stand divided and separated. The relevant provisions relating to extinguishment of the Trust in respect of Keshab Chandra Sen Street and devolution and distribution of the funds and assets thereof have been dealt with in the fourth division of first part and second division of the third part respectively of the deed. The settlor Kalidas died in 1953, his wife in May, 1961, Satidas-father of defendant Nos.1 to 5 on 25.01.63 and Kamala on 06.10.71. At the time of death of Kamala neither Satidas nor Ramdas had any son or grandson born or alive. So the property of Keshab Chandra Sen Street became vested in the defendant Nos.l to 5, but distribution remained suspended until 01.06.73 when defendant No.5 attained majority. Immediately thereafter Ramdas made over the said Keshab Chandra Sen Street property to defendant Nos.l to 5 absolutely and issued letters of attornment in favour of all the tenants occupying the premises. Since June, 1973 the said defendants have been exercising the full ownership of the premises. In or about 1978 when the said defendants wanted to induct some tenants in the ground floor, defendant No. 6 who himself was a tenant in respect of a portion of the said property instituted T. S. No. 1912/78 in the City Civil Court at Calcutta inter alia challenging the authority of the said defendants to induct tenants. The suit was ultimately compromised and Ramdas had to concede that the said defendants have every right to transfer the property. In or about June, 1980 the said defendants entered into an agreement for sale with the plaintiff in respect of a demarcated portion of the premises being No. 110, Keshab Chandra Sen Street at a consideration of Rs. 85,000/- and received a sum of Rs. 2501/- towards earnest money. Immediately thereafter defendant No.6 Ramdas instituted T. S. No. 1904/80 in the City Civil Court at Calcutta for a declaration that the Trust created by the Deed of Settlement has not yet been extinguished and he still remains a Trustee and the said defendants were not entitled to sell the property except through him, and obtained an interim order of injunction against the said defendants from selling and/or alienating the property which was duly informed by the said defendants to the plaintiff. They took all reasonable steps to vacate the order of injunction. The said T. S. No. 1904/80 was ultimately decreed on 07.08.87 holding that Ramdas still remains the Trustee and the defendants have no right to sell the property except through him. The defendants preferred an appeal being FAT No. 4012/87 before this Court which is still pending. In view of the said decree, the above defendants were not in a position to complete the sell but they are ready and willing to complete the transaction as soon as the decree is set aside. On or about 05.01.90 defendant No. 6 Ramdas died, and thereafter his widow Smt. Jyotsna Chatterjee filed T. S. No. 724/93 in the City Civil Court at Calcutta against the said defendants inter alia praying for declaration that she was the sole Trustee in respect of the disputed premises and for injunction which was decreed on 30.04.96 and the said defendants were permanently restrained from transferring, alienating or parting with possession of the disputed premises and from inducting any tenant and effecting any addition or alteration except through her. The appeal being FAT No. 1985/96 subsequently renumbered FA No. 136/97, preferred by the said defendants is still pending, and after the death of Jyotsna Chatterjee on or about 15.07.96 her two daughters Smt. Srila Banerjee and Smt. Mitra Banerjee were substituted in her place. That the said T. S. No. 1904/80 is collusive is denied. The plaintiff had due notice that the defendants had refused performance of the agreement for sale in or about October, 1980. Accordingly, the suits merit dismissal.