Somnath Sarkar vs Atasi Saha And Another

Sabyasachi Bhattacharyya, J

The plaintiff in a suit for recovery of Khas possession by evicting the defendants and for ancillary reliefs has preferred the instant revisional

application against an order whereby the plaintiff’s application under Order XII Rule 6 of the Code of Civil Procedure, for judgment on admission,

was rejected by the trial court.

The plaintiff claims title to the property by virtue of a deed of settlement executed by the original owner, Kali Kanta Sarkar (since deceased) on

May 11, 1963. The learned senior advocate for the petitioner argues that, on the basis of certain admissions made by the opposite parties in their

written statements, the trial refused to exercise jurisdiction vested in it by law in not passing a judgment on admission.

The learned senior advocate places reliance on the statement made by the defendants in paragraph no.7 of the written statement to the effect that

Rekha Sarkar and Sondhya Sarkar had the right to mortgage, sell or devise or in any way dispose of the said premises after the death of Saroju Bala

Sarkar and their respective husbands.

It is further stated by the defendants in paragraph no.9 of the written statement that the defendant no.1 has no full blooded brother. It was also

stated in the said paragraph that the plaintiff is the only male child of Nilmoni and Sondhya Sarkar. In paragraph no.18 of the written statement, the

defendants have admitted that the plaintiff is the son of Nilmoni Sarkar and Sondhya Sarkar.

The learned senior advocate for the petitioner hands up a genealogical table of the family of the parties which is as follows:

It is argued on behalf of the petitioner that, as per the deed of settlement as annexed at pages 43 to 49 of the revisional application, only the male

heirs in the family were to inherit the property. Such qualification was not restricted to the sons of the settlor but operated across future generations.

In the trust deed, the expression “the daughters or their heirs†has been used to qualify the right of inheritance and it has been specifically

stipulated that the property-in-question, being premises No.149/B, Vivekananda Road, may not vest in any way in the said daughters or their heirs. It is

further stated in the deed of settlement that the settlor was desirous of the said premises being enjoyed by the male heirs of the said respective sons,

thereby meaning that the male heirs in the family, in successive generations, would be entitled to the property as opposed to the female heirs.

Although, as per the deed of settlement, the right of Rekha Sarkar (the widow of the settlor’s son Nemai Sarkar) and Sondhya Sarkar (the wife

of late Nilmoni Sarkar, another son of the settlor), were restricted from mortgaging, selling or dispose of the premises during the lifetime of the settlor

and her wife Smt. Saraju Bala Sarkar and the lifetime of the respective husbands of Rekha and Sondya, such right did not automatically ripen into

absolute title after the demise of the said life interest-holders as per the terms of the deed.

Learned counsel argues that, as per the deed, the two equally partitioned shares as shown in Schedules ‘B’ and ‘C’ and as portions

marked ‘A’ and ‘B’ in the plan annexed to the deed was to devolve on Rekha and Sondhya, for their absolute use and benefit and their

respective male heirs to be begotten by their respective husbands, as well as possession shall be handed over to Rekha and Sondhya according to the

division on the death of the settlor and his wife. Such conferment, it is contended, was only restricted to possession and user and did not pertain to title.

It is contended by the learned senior advocate for the petitioner that the aforesaid admissions contained in the written statement, read in

conjunction with the provisions of the deed of settlement, clearly indicate that the plaintiff is the only male child of Nilmoni Sarkar and Sondhya Sarkar

and thus the absolute owner in respect of premises no.149C, Vivekananda Road, Kolkata- 700 006. However, as far as the defendants are concerned,

they are not entitled to any right, title and/or interest in the property since they are female descendants in the family.

Learned counsel appearing for the opposite parties, in controverting the above arguments, submits that a complete and meaningful reading of the

deed of trust would clearly indicate that the restriction regarding vesting of the property was limited to the wife and the daughters of the settler and the

heirs of the latter. The expression “the daughtersâ€​ cannot be applicable across generations but only referred to the daughters of the settlor.

That apart, it is clearly indicated in the deed of settlement that Rekha Sarkar and Nemai Sarkar and their respective male heirs to be begotten by

their husbands would derive the absolute use and benefit of the property subject to the life interest created in favour of the settlor and his wife and

their husbands. The said clause in the deed could not be construed to be an absolute bar on the devolution of the property on all female descendants in

the family.

Upon hearing learned counsel appearing for both the parties and perusing the plaint, written statement as well as the deed of settlement-in-

question, it is clearly evident that the defendant no.1 has no full blooded brother. However, it is denied that the defendants have no right to use and

occupy the premises but that the plaintiff is the absolute owner in respect of premises no.149C, Vivekananda Road, Kolkata- 700 006, since the

plaintiff is the only male child of Nilmoni and Sondhya. However, a glance at the genealogical table will reveal that the defendant/opposite party no.1,

namely, Atashi Saha is the daughter of Nemai Sarkar, the son of the settlor. The plaintiff, namely, Somnath Sarkar is one of the sons of Nilmoni

Sarkar, the latter being a son of the deceased settlor.

The relevant clauses of the deed of settlement have to be read as a whole and in proper perspective and cannot be read out of context, by culling

out stray phrases in isolation.

It is clearly mentioned in the deed that the settlor had two (02) sons who were the trustees and also five (05) daughters, apart from his wife, Smt.

Saraju Bala Sarkar.

By subsequent reference to “the daughters†in the second page of the deed of settlement, the daughters of the settlor have been clearly

referred to. Hence, it is only the daughters of the settlor and their heirs who have been denied of the title to the property-in-question. The expression

“the daughters†cannot be construed to be generic in nature but specifically qualifies the expression “five daughters†of the settlor, who have

been specifically mention in the earlier part of the deed of settlement.

Thus, the said bar cannot he held to be applicable to all the subsequent female heirs of the family for all posterity to come. In fact, in the deed of

settlement itself, the settlor explained that the said five daughters were married and living with their respective husbands and they were married at an

enormous expense and that the settlor was anxious to settle the premises no. 149/B, Vivekananda Road, to avoid all disputes and differences among

the sons, daughters and wife of the settlor. Life interest was reserved in respect of the settlor and his wife. However, subsequent to the demise of the

settlor and his wife as well as the sons of the settlor, namely, Nemai and Nilmoni, the property would devolve on Sondhya and Atashi, their respective

wives, and their heirs.

The limited restrictions imposed on transfer of the property by Rekha and Sondhya during the lifetimes of the settlor, his wife and sons cannot be

attributed omnibus connotation, as a restriction on all female descendants in the family for successive generations.

Hence, although the five daughters of the settlor and their heirs were deprived from the property, the rest of the heirs of the settlor were to be

taken care of. His wife Saraju Bala Sarkar was to have life interest in the property, along with Nemai and Nilmoni, the sons of the settlor.

However, subsequent to the demise of the settlor, his wife and his two sons, the property was to devolve on the heirs of the said sons.

It is evident from the genealogical table handed over by the petitioner that Rekha and Atashi were respectively the wife and daughter of Nemai,

one of the sons of the settlor. Upon the demise of Nilmoni’s wife Sondhya (who died in the year 2018) and Nemai’s wife Rekha (who died on

September 26, 2012), the other heirs of the said sons of the settlor would inherit the property.

Thus, Atashi Saha, who was the daughter of Nemai, inherited the property after the demise of her parents. On the other hand, the plaintiff

Somnath was one of the sons of Nilmoni (the other son of the settlor). Hence, upon the death of Nilmoni, his share ought to have devolved upon his

wife Sondhya, daughter Tapashi and sons Somnath and Sovon. Since Sovon was lost from the year 1995, presumption of death of the said Sovon

ought to be drawn in terms of Section 108 of the Evidence Act, subject to the conditions stipulated therein being satisfied.

Sondhya, the wife of Nilmoni, also died in the year 2018. Hence, upon the demise of Nilmoni and Sondhya, their daughter Tapashi and son

Somnath were to inherit the share of Nilmoni. The share of Nemai would devolve on Atashi, the opposite party no.1, upon the death of his wife

Rekha.

Thus, Somnath is only a co-sharer with Atashi and others, such share of Somnath being restricted only to that on Nilmoni’s. The opposite party

no.1, in any event, would inherit the share of Nemai and thereafter Rekha, her parents and, hence, could not be labelled as a licensee or trespasser in

respect of the suit property.

As such, upon perusal of the deed of settlement, it is clear that there is sufficient scope of doubt as to the construction of the same, vis-Ã -vis the

respective titles of the parties. Hence, the statements made in the written statement, relied on by the plaintiff/petitioner, ipso facto do not amount to

unqualified admissions, sufficient to entitle the plaintiff to a judgment on admission.

Although it is submitted on behalf of the petitioner that this court, while considering the legality of an order refusing to reject the plaint of a

different suit, had observed that the plaint of the said suit ought to be rejected since the relevant clauses in the same deed of settlement were clearly

decipherable on a plain reading thereof and ultimately rejected the plaint, such order cannot be held to be a precedent insofar as the matter before this

court was rejection of plaint under Order VII Rule 11 of the Code of Civil Procedure, which is confined merely to an enquiry on a plain and

meaningful reading of the plaint. However, in case of Order XII Rule 6 of the Code, the alleged admission relied on by the plaintiff, for getting a

judgment on admission, has to be unqualified and clear for the court to pass a judgment under Order XII Rule 6 of the Code.

On the other hand, the order of this court dated September 23, 2019 passed in C.O. No. 3191 of 2019 cannot also operate as res judicata, since the

same was passed in respect of a different suit, where the present opposite parties had not been impleaded and which arose in connection with an

interpretation of Order VII Rule 11 of the Code and not Order XII Rule 6 thereof.

Thus, no clear admission has been disclosed in the present case to have been made by the defendants/opposite parties in their pleadings, sufficient

to grant a judgment on admission in favour of the plaintiff. The question of construction of the deed of settlement cannot be gone into in detail while

deciding an application under Order XII Rule 6 of the Code of Civil Procedure, merely on the basis of the admitted relationships between the parties,

since the devolution of interest as per the deed of settlement has scope of interpretation at the time of hearing of the suit. Since an arguable case has

been made out by the parties in respect of such devolution of title upon a proper interpretation of the deed, it cannot be said that there was any

unequivocal, clear and unambiguous admission on the part of the opposite parties in their written statement, sufficient to satisfy the tests of Order XII

Rule 6 of the Code of Civil Procedure.

Accordingly, the trial court was justified in passing the impugned order, rejecting the application of the petitioner under Order XII Rule 6 of the

Code and relegating the issue to be decided at the time of trial.

In such view of the matter, C.O. No.423 of 2021 is dismissed on contest without any order as to costs, thereby affirming the order impugned in the

present revisional application.

Urgent certified copies of this order shall be supplied to the parties applying for the same, upon due compliance of all requisite formalities.