Tapan Kumar Dutt, J.@mdashBy an order dated 29.03.2012 this Court had formulated the substantial questions of law on the basis of which this appeal would be heard and the following other substantial questions of law:
(1) Whether or not the learned lower Appellate Court properly construed the deed of settlement in question while considering the status of the defendant in respect of the suit property?
(2) Whether or not the learned lower Appellate Court erred in not holding that the terms on the basis of which the defendant has been given protection for his stay in the suit property are void in view of section 10 of the Transfer of Property Act and also on the ground that such terms by which the defendant has been given protection, as aforesaid, suffers from uncertainty?
(3) Whether or not the learned lower Appellate Court erred in not holding that even if it is assumed for the sake of argument that a right of stay in the suit property was given to the defendant under the deed of settlement in question, such right of stay can be revoked by the plaintiff?
Today, the learned Senior Advocate appearing on behalf of the appellant has completed his submissions.2. Thereafter, the learned Advocate appearing on behalf of the respondent has also made and completed his submissions.
3. The learned Advocate for the appellant thereafter made his submissions in reply.
4. Hearing is concluded.
5. The Court now delivers the following judgement.
6. That one Anjan Kumar Banerjee, the predecessor-in-interest of the present appellant, as plaintiff, filed a suit being Title Suit No. 411 of 1991 against the defendant/respondent which was placed before the learned 4th Munsif s Court at Alipore. In such suit the said original plaintiff prayed for a decree for recovery of khas possession of the suit premises as described in Schedule "B" in the plaint by evicting the defendant therefrom.
7. The plaintiff''s case was that he had allowed the defendant to occupy the aforesaid "B" Schedule property which forms part of the "A" Schedule property. In other words, the plaintiffs case was that the plaintiff had granted licence to the defendant for occupying the said "B" Schedule property. That the plaintiffs further case was that on 10.09.1991 the plaintiff revoked the said licence and requested the defendant to quit and vacate the suit premises which the defendant did not comply with and hence the said suit was filed.
8. The defendant/respondent contested the said suit by filing the written statement denying the material allegations made in the plaint and further made a counter claim praying for a declaration that the defendant has right to reside in the allotment made in favour of the plaintiff by the father of the parties as per terms of the deed of settlement dated 28.04.1982. The defendant also prayed for a declaration that the said plaintiff was duty bound to provide accommodation to the defendant in the plaintiffs allotment.
9. The said suit came up for final hearing and the learned Trial Court by its judgement and decree dated 29th June, 1995 decreed the said suit by granting a decree of eviction in favour of the plaintiff and directing the defendant to deliver up possession in favour of the plaintiff within a stipulated period of time. The learned Trial Court rejected the prayer made in the counter claim by the defendant. The learned Trial Court after considering the facts and circumstances of this case, including the settlement deed in question, came to the conclusion that the defendant was in permissive possession of the suit property and the plaintiff had granted licence to the defendant to occupy the suit property and the said licence was ultimately revoked.
10. Challenging such judgement and decree passed by the learned Trial Court the defendant/respondent filed Title Appeal No. 336 of 1995 which was placed before the learned 8th Court of Assistant District Judge at Alipore. The said Title Appeal came up for hearing and the learned lower Appellate Court came to the finding that it has not been disputed that under the deed of settlement concerned, i.e the aforesaid deed of settlement dated 28.04.1982, the father of the parties, namely, Subodh Kumar Bandyopadhyay, since deceased, had made a settlement of his property in favour of his four sons and his daughter. The learned lower Appellate Court found that the plaintiff and the defendant are beneficiaries under the said deed of settlement amongst others. It may be noted here that the said deed of settlement had been marked as exhibit ''A'' in the suit. The learned lower Appellate Court found that all the beneficiaries of the said deed of settlement have acted upon the said deed of settlement executed by their father. The learned lower Appellate Court was of the view that the plaintiff cannot say that the defendant was a licensee under their father or that such licence has been revoked with the demise of their father or that the defendant has been in occupation as a licensee under the plaintiff. The learned lower Appellate Court came to the conclusion that the defendant/respondent has been residing in the "B" Schedule property as per recital of the said deed of settlement as a matter of right as provided in the said deed of settlement. The learned lower Appellate Court was of the view that the defendant has got the right of residence in the allotment made in favour of the plaintiff in terms of the said settlement deed and the terms of conditions of the deed of settlement are legal and binding upon the plaintiff as well as the defendant. The learned lower Appellate Court further came to the conclusion that the counter claim made by the defendant is nothing but the defence of the defendant and the learned lower Appellate Court was not inclined to pass any separate order in respect of the said counter claim. The learned lower Appellate Court by the impugned judgement and decree dated 24th September, 1996 allowed the aforesaid Title Appeal and set aside the judgement and decree passed by the learned Trial Court and thus dismissed the suit.
11. The learned Senior Advocate appearing on behalf of the plaintiffs/appellants (the heirs and legal representatives of the original plaintiff) submitted that there is no dispute that both the parties are acting upon the aforesaid deed of settlement dated 28.04.1982 and both parties claimed their right to their respective properties and/or allotments by virtue of the aforesaid deed of settlement and he further submitted that when the said deed of settlement is read as a whole it will be clear that the father of the parties i.e. said Subodh Kumar Bandyopadhyay, since deceased, by the said deed of settlement intended to allot specific portions of the building in question in favour of four sons and daughter. In the relevant paragraph dealing with the allotment made in favour of the original plaintiff in the said deed of settlement, it has been clearly stated that the said original plaintiff being the eldest son of the said Subodh Kumar Bandyopadhyay would be entitled to have the northern block of the second floor of the building with other common rights where the said original plaintiff can reside with his family and no other son/daughter can ever object to such entitlement of the original plaintiff and/or the allotment made in favour of the original plaintiff. It has also been mentioned in the said paragraph of the said deed that the original plaintiff will be entitled to make new constructions in his allotment with his own money and in terms of the relevant Municipal Rules. The settlor made it clear that no other son/daughter of the settler would have any right to object in this regard. At the end of the said paragraph of the said deed of settlement it was also indicated that the plaintiff would be entitled to a garage in the southern block. However, the most crucial part of the said paragraph is contained in the last line of the said paragraph of the settlement deed where it has been stated that the original plaintiff will provide shelter and protection to the youngest son of the settlor i.e. the defendant/respondent herein, in the allotment made in favour of the plaintiff. It will appear from the deed of settlement that separate allotments have been granted to the four sons and one daughter of the settlor (Subodh Kumar Bandyopadhyay). Similarly, the defendant/respondent has also got an allotment of the northern block of the first floor portion of the building in question and a garage on the northern side and also a room for keeping bicycle. It appears that the other two sons of the said Subodh Kumar Bandyopadhyay are not in the present dispute and the learned Advocates for the respective parties submit that they are enjoying their respective allotments in the said building.
12. The learned Senior Advocate for the plaintiff/appellant submitted that reading the said deed of settlement as a whole it will appear that it was essentially the wish of the said settlor that his eldest son, i.e. the plaintiff, should permit the defendant/respondent to occupy a portion of the plaintiffs allotment to protect the defendant/respondent from difficulties and as such the said learned Senior Advocate submitted that it could not have been the intention of the father of the parties that the defendant would continue to occupy such portion of the plaintiffs allotment for eternity and for an indefinite period of time. The said learned Senior Advocate submitted that in any event the last part of the paragraph, which deals with the plaintiffs allotment is vague as it does not specify as to how long the defendant could be permitted to occupy the suit property or any part of the ''A'' Schedule property and it also does not mention any specific area in respect of which the licence could have been granted. The said learned Advocate submitted that in view of section 10 of the Transfer of Property Act the condition made in the said deed for providing shelter to the defendant/respondent is void and such terms cannot acted upon.
13. The said learned Advocate submitted that the intention of the parties should be given effect to and it will be clear from the said deed of settlement that the said Subodh Kumar Bandyopadhyay intended to have his four sons and daughter settled in life, at least in so far as the residence is concerned, and that is the reason why the specific allotments were made in favour of each of the sons and daughter of the settlor. He submitted that this Court should place itself in the arm-chair of the settlor. The said learned Senior Advocate further submitted that the defendant is trying to grab more than his due share in the property. There is no dispute that a specific allotment has been made in favour of the defendant/respondent and yet, in spite of that, the defendant/respondent is now bent upon usurping the allotment made in favour of the plaintiff. The said learned Senior Advocate submitted that it was a clear case of licence which was granted by the plaintiff in favour of his younger brother in respect of the property in dispute but such licence was subsequently revoked. The said learned Advocate referred to section 52 of The Indian Easements Act, 1882 and submitted that in the instant case there was no transfer of interest in the property and only a right of stay was granted by the plaintiff in favour of the defendant. The said learned Advocate also referred to section 60 of the said Act of 1882 and submitted that even an irrevocable licence may be revoked by the grantor. Referring to section 60 of the said Act of 1882 the said learned Counsel submitted that as there was no transfer of property involved in the instant case, i.e. no interest was transferred in favour of the defendant/respondent in the instant case in respect of the allotment made in favour of the plaintiff and since it is nobody''s case that the defendant, acting upon the licence has executed a work of a permanent character and incurred expenses in such execution, it was a clear case where the plaintiff lawfully and legally revoked the licence.
14. The said learned Senior Advocate cited decisions reported in 12 CLJ 443 in support of his submission that even in case of an irrevocable licence, the licence can be revoked provided a compensation is made to the licensee. The said learned Senior Advocate cited another decision reported in
5. It must be conceded that there is some conflict of ideas in the document; but in constructing a Will executed in 1897, the Court should try its best to get at the intention of the testator by reading the Will as a whole. We must accept, if possible, such construction as would give to every expression some effect rather than that which would render any of the expressions inoperative. Another rule which may also be useful in the context of the present Will is that the words occurring more than once in a Will shall be presumed to be used always in the same sense unless a contrary intention appears from the Will; see section 86 of the Indian Succession Act. So too, all parts of a will should be construed in relation to each other; vide section 84 of the said Act. It is also a well recognized rule of construction that the Court will look at the circumstances under which the testator makes his Will, such as the state of his property, of his family and the like; see section 75 of the said Act.
15. The said learned Counsel also referred to a decision reported in
16. Another decision which was cited by the said learned Senior Counsel is the one reported in
17. The said learned Senior Advocate further submitted that the facts and circumstances of this case, if considered as a whole, would indicate that the plaintiff had only granted licence to the defendant/respondent to occupy the suit property which was subsequently revoked and thus the learned. Trial Court was quite justified in decreeing the suit and the learned lower Appellate Court erred in setting aside the said judgement and decree passed by the learned Trial Court.
18. The learned Advocate appearing on behalf of the defendant/respondent referred to paragraph 4 of the plaint and submitted that the said paragraph would show that a specific area of the ''A'' Schedule property was alleged to have been granted by way of licence to the defendant/respondent for occupation of the same and thus it is not proper to submit that there was any uncertainty in so far as the area is concerned. The said learned Advocate, of course, submitted that with regard to the period of occupation there is no such stipulation in the settlement deed and thus such period of occupation is without any end. The said learned Advocate referred to Schedule "B" and "A" of the plaint and submitted that the two schedules, if read together, would also show that a specific area was granted in licence in favour of the defendant/respondent. The said learned Advocate referred to section 52 of the said Act of 1882 and submitted that in the present case there was a transfer of interest in favour of the defendant/respondent and as such this is not a case of licence. His further submission was that the settler could not have granted licence on behalf of the plaintiff in favour of the defendant/respondent. He submitted that the settler could have granted an interest in the property and the interest that was created in favour of the defendant was simultaneously created with the interest that was granted in favour of the plaintiff. According to the said learned Advocate, the plaintiff had no option of granting or not granting licence to the defendant/respondent as the direction contained in the settlement deed was imperative. The said learned Advocate submitted that the instant case is not a case of grant of licence.
19. He further submitted that section 10 of the Transfer of Property Act does not apply as in the present case there was no restriction of transfer stipulated in the settlement deed and the plaintiff was entitled to dispose of his interest in the property after he had got his allotment in terms of the said deed of settlement. The said learned Advocate referred to section 29 of the Indian Contract Act, 1872 and submitted that the said deed of settlement cannot be equated with an agreement as contemplated u/s 29 of the said Act of 1872 and, therefore, the decision that was cited by the learned Senior Advocate for the plaintiff/appellant with regard to the uncertainty of the terms and conditions of contract is not applicable to the facts and circumstances of this case. The said learned Advocate also submitted that the learned lower Appellate Court did not really reject the prayer made in the counter-claim as the said learned Court had found that the defendant/respondent has a vested right in "B" Schedule property of the plaint.
20. The said learned Advocate for the defendant/respondent cited a decision reported at AIR 1990 Kerala 226 and referred to paragraph 40 of the said reports in support of his submission that a party who takes under a document cannot disaffirm the other portions of the same document and thus he cannot be allowed to approbate and reprobate. The said learned Advocate also relied upon Paragraph 5 of the Pearey Lal''s case
21. Thus, the said learned Advocate submitted that the last line of the said paragraph of the said deed of settlement which deals with the plaintiffs allotment should also be given effect to.
22. Having hoard the learned Advocates for the respective parties and having considered the facts and circumstances of the present case and the materials on record and the cases cited at the bar, this Court is of the view that the most important question in the present case is with regard to the construction of the said deed of settlement dated 28.04.1982. There cannot be any dispute with regard to the fact that the Court must place itself in the arm-chair of the settlor so as to ascertain the predominant intention of the settlor who had executed the said deed of settlement.
23. It is true that a specific portion has been mentioned in the Schedule "B" to the plaint, i.e. the suit property in respect of which the plaintiff has alleged that he had granted licence in favour of the defendant, but in the deed of settlement no specific area of such property has been mentioned. In the deed of settlement it has also not been mentioned as for how long the defendant/respondent could occupy any portion of the ''A'' Schedule property. There cannot be any dispute with regard to the legal propositions which were relied upon by the respective parties by citing various cases but the question which is required to be solved in the present case is what was the predominant intention of the said Subodh Kumar Bandyopadhyay while executing the aforesaid deed of settlement.
24. After having perused the deed of settlement in question, this Court is of the view that the said Subodh Kumar Bandyapadhyay during his life time intended to have his four sons and daughter settled and for such purpose he made specific allotments in the building in question in favour of his sons and daughter by way of the aforesaid deed of settlement. In the relevant paragraph which deals with the plaintiffs allotment it has been clearly stated that the plaintiff would be entitled to enjoy the said allotment with his family and no other son/daughter of the settlor will be entitled to object to it. After having made such a stipulation the said settlor also stipulated that the plaintiff should provide shelter and protection to the defendant/respondent. It appears from the record that tenants are still occupying the defendant''s allotment. If this fact is taken into consideration it will be clear that the stipulation with regard to shelter and protection indicated in the aforesaid paragraph of the settlement deed was only for the purpose of enabling the defendant/respondent to tide over the difficulty he might have been facing for the fact that a tenant is occupying his property Such stipulation could not have meant that any right has been conferred to the defendant to stay in the said "B" Schedule property for an indefinite period of time Such stipulation, it appears to this Court, was only a temporary measure. If this construction is not given to the said document then the first part of the said paragraph dealing with the plaintiffs allotment i.e. the provision entitling the plaintiff to enjoy specific portion of the building in question would be rendered infructuous. Relying upon the Supreme Court judgement in Pearey Lal''s case which has been relied upon by the learned Advocates for both the sides it will appear that effort should be made to give construction to a document which would give to every expression made in the document some effect rather than which would render any of the expressions inoperative.
25. The learned lower Appellate Court has recorded in its judgement that the DW-1 (defendant) had stated in cross examination that it is not true that he has been occupying the suit property since the lifetime of his father. This would only mean that the defendant came into occupation of the suit property after the demise of Subodh Kumar Bandyopadhaya. It appears that the plaintiff in deference to his father''s wishes had granted licence to the defendant to occupy the suit property to tide over any difficulty that he might have been facing at that point of time. The settlor died on 13th February, 1985. Even if it is assumed that immediately after the settlor''s death the defendant came into occupation of the suit property by virtue of a licence granted by the plaintiff, in that case also we find that about 26 years have passed. It may be recorded here that the original plaintiff has also died in the meantime, some time in the year 2005, as it has been submitted by the learned Advocate for the plaintiff/appellant. To construe a document this Court must make a reasonable approach. The provision regarding shelter and protection cannot be extended to mean that such shelter and protection shall continue for all tunes to come. It appears from the document that it was only a wish expressed by the settlor and this Court is of the view that if it is assumed that the licence was granted in favour of the defendant immediately after the settlor''s death the plaintiff had waited for about ten years before filing the suit for eviction as it appears that the suit for eviction was filed in the year 1995. To give a meaning to the said document as the defendant/respondent would like to give a meaning to it that the defendant/respondent has a vested right in the property in dispute and he can continue to occupy the suit property for all times to come, would necessarily negate the allotment which the settlor made in favour of the plaintiff. To accept such stand taken by the defendant/respondent will not be just at all. The question of the said Subodh Kumar Bandyopadhyay granting licence in favour of the defendant does not arise at all. As the plaintiff in deference to the wish of his father had given effect to the last line of the said paragraph of the deed of settlement which deals with the plaintiffs allotment by way of granting licence to his younger brother for a long long time to stay in the property in dispute to tide over any difficulties he may have been facing at that point of time but by no stretch of imagination can this Court come to the conclusion that the defendant was given a right to enjoy such property in dispute for all times to come.
26. This Court is unable to accept the submission made by the learned Advocate for the defendant/respondent that any interest was created in favour of the defendant simultaneously with the creation of interest in favour of the plaintiff by the settlor. It is also not correct to say that the plaintiff had no option either to grant or not to grant licence. Plaintiff, it appears, had exercised the option of granting licence in favour of the defendant, which was subsequently revoked after a long time. The question whether section 10 of the Transfer of Property Act can be applied in the facts and circumstances of the present case is not material as this case rests upon the proper construction of the aforesaid deed of settlement. The decision cited by the learned Advocate for the defendant/respondent i.e. AIR 1990 Kerala 226, can not be of any assistance to the defendant/respondent in the instant case inasmuch as the question of approbation and reprobation does not arise since the plaintiff in deference to his father''s wishes had given sufficient time to the defendant to tide over his difficulties, if any.
27. In view of the discussions made above, this Court is of the view that the impugned judgement and decree passed by the learned lower Appellate Court should be set aside and the judgement and decree passed by the learned Trial Court should be restored.
28. Accordingly, the instant Second Appeal is disposed of by setting aside the judgement and decree passed by the learned lower Appellate Court and by restoring the judgement and decree passed by the learned Trial Court with the only modification of the learned Trial Court''s judgement and decree to the effect that the time granted by the learned Trial Court to the defendant to vacate the property in dispute shall be 150 days from the date of this judgement. Urgent certified xerox copy of this judgement, if applied for, shall be given to the parties as expeditiously as possible on compliance of all necessary formalities.
