SAYANTAN DEY Vs. RUMA GHOSH

JUDGEMENT

(1.) This originating summons suit has been filed by two of the legal heirs of late Arun Prakash Dey for the following advice:

(2.) Panchanan Dey since deceased, during his lifetime made and published his last Will and testament dated 17th April, 2017 by which he appointed one Bani Kanta Guha as the executor of the said Will till the said property is devised entirely and absolutely to his son Arun Prakash Dey. The family of the testator constituted of his wife Smt. Shanti Dey, his son Arun Prakash Dey and daughters namely, Smt. Rina Ghosh, Smt. Mina Dey, Smt. Debjani Swami, Smt. Jolly Bose and Smt. Molly Chowdhury. He was the owner of one immovable property at 81, Harish Mukherjee Road, Kolkata- 700 025. He bequeathed western portion of the said premises to his wife for life and after her death to his son Arun Prakash Dey. The eastern portion was tenanted. The executor was directed to realize the rentals from the said property and pay the corporation rates and taxes and also maintain the property and, after meeting all such expenses out of the rents so realized, the remaining amount would be distributed to his five daughters in equal share until their death. The Will contains certain restrictions which, inter alia, include that no part of the property shall be sold, mortgaged and/or charged in any manner during the lifetime of the wife of the testator and the sons and daughters of the testators. The probate of the Will was applied for and granted in favour of Bani Kanta Guha. During pendency of the administration of the estate, the wife, two daughters and the son of the testator had died. The legal heirs of the son has taken out this Summons in view of the fact that the property is in a dilapidated condition and might collapse at any time. The property was not maintained for years. The structure is almost 100 years old and is build on load bearing walls. There are trees which have grown on the walls and on the parapet. Trees have also grown on the roof. The structure has now become weak. There are cracks on the wall and continuous seepage of water through the roof and the walls have further weakened the stability of the building. The building requires extensive repair. The parties do not have adequate fund to carry out such repair. Although parties have agreed that they can save the property by entering into a development agreement but they are unable to do so in view of the restrictive clause in the Will by which they are prevented from selling and/or mortgaging and/or charging any part of the property.

(3.) The defendants have filed a written statement in which they have also prayed for an opinion of this Court in the affirmative so that the legal heirs can enter into a joint development agreement with a developer. The learned counsel for the parties have submitted that the object of the Will is to ensure that the parties can enjoy the said property. The enjoyment of the property presently is not possible because of the dilapidated condition of the structure and it would be more beneficial in the event the parties are allowed to develop the said property and hand over a portion of the property to a developer and retain the other portion of the property for their own use and occupation. It is submitted that in the event the answers are given in the affirmative, it would be beneficial for all the beneficiaries under the Will.