IN THE HIGH COURT AT CALCUTTA Civil Appellate Jurisdiction Original Side Present: The Hon'ble Justice [ENTITY] And The Hon'ble Justice [ENTITY] APD No.455 of 2003 G.A. No.292 of 2004 [CASE NUMBER] [ENTITY] of [ENTITY] Versus [ENTITY] & Ors. For the appellant : Mr. [ENTITY], Mr. [ENTITY]. For the respondent Nos.1 to 4. : Mr. [ENTITY], Sr. Advocate. Mr. [ENTITY], Mr. [ENTITY], Sr. Advocate. For the respondent Nos.5(a) to 5(d). : Mr. [ENTITY], Mr. [ENTITY], Ms. [ENTITY]. Judgment On : 14 -03-2014. [ENTITY], J. :
This appeal is directed against the judgment and decree dated May 23, 2003 passed in [CASE NUMBER]. By virtue of the impugned judgment, the learned Trial Judge directed the [ENTITY] and his legal heirs and representatives to execute deed of conveyance in accordance with the decree dated May 5, 1959 passed in [CASE NUMBER] (in re: [ENTITY] vs. [ENTITY]) in respect of Tiretta Bazar Property lying and situated at Premises No.22 (also known as 22B), Rabindra Sarani, Kolkata in favour of [ENTITY] (HUF), [ENTITY] (HUF), [ENTITY], [ENTITY] (HUF), [ENTITY] (HUF), [ENTITY] (HUF) and [ENTITY] (HUF) within a period of 3 months , in default, the Registrar, High Court, Calcutta was directed to execute necessary conveyance. M/s. Orr. Dignam & Co. was also directed to hand over the amount of Rs.2,50,000/- and Rs.3,00,000/- the amounts so deposited with them in terms of order dated December 17, 1962 with accrued interest thereupon to [ENTITY] and/or his legal heirs and legal representatives towards full and final payment of the price of the above property.
This matter has a chequered history which is discussed in a nutshell as follows:
On February 14, 1948, [ENTITY] granted lease in respect of premises No.12, Lower Chitpur Road, Calcutta now known as Tiretta Bazar Property lying and situated at premises No.22 (also known as 22B) Rabindra Sarani, Kolkata (hereinafter referred to as the suit property) in favour of Shree Ganesh Properties (P) Ltd. for a term of 66 years with an option for extension for a further period of 33 years. The initial period of the above lease would expire on February 14, 2014. At the material point of time, shareholding in Shree Ganesh Properties (P) Ltd. was held by three groups of shareholders, namely, Jajodia group, [ENTITY] group and the Acharya group.
By virtue of an agreement for sale dated October 22, 1952, the [ENTITY] agreed to sell the suit property to Sri [ENTITY], the predecessor-in-interest of the [ENTITY] Group. By the above agreement, the [ENTITY] was also agreed to sell premises No.57, Clive Street to one [ENTITY]. A suit being [CASE NUMBER] was filed by the aforesaid [ENTITY] and [ENTITY] against [ENTITY] for specific performance of the above agreement.
On January 13, 1953, [ENTITY] and [ENTITY] on the one hand and [ENTITY] on the other hand entered into an agreement for purchasing and/or permanent lease of the suit property upon payment of Rs.5,50,000/- and the proportionate annual rent and/or charge payable under the agreement dated October 22, 1952.
It was also agreed between the [ENTITY] and [ENTITY] that they would have 50 per cent share and whatever amount was invested would carry interest at the rate of 9 per cent as also they should bear profit and loss in the above transaction at the rate of 50 per cent.
A suit being [CASE NUMBER] (in re: [ENTITY] vs. [ENTITY]) was filed by the [ENTITY] and [ENTITY] and the same was decreed on May 5, 1959 by consent of the parties. It was recorded in the above decree that the suit property should be sold at a price of Rs.5,50,000/- in favour of [ENTITY] or his nominee and the amounts should be paid simultaneously with the execution of the conveyance and the same would be subject to charge for payment of Rs.3,000/- annually for [ENTITY]. The decree also provided for completion of transaction by May 31, 1959.
On July 25, 1959, [CASE NUMBER] which gives rise to this appeal was filed by the [ENTITY], plaintiffs/respondents, for specific performance of the agreement dated January 13, 1953, amongst other prayers. An interim order dated July 29, 1959 was passed in the above suit restraining the [ENTITY], [ENTITY] from executing any conveyance in respect of the suit property in terms of the decree dated May 5, 1959 passed in [CASE NUMBER] till disposal of the above suit.
On September 14, 1959, the above interim order was directed to continue subject to depositing of Rs.5,50,000/- by the [ENTITY] being the entire consideration for purchase of the suit property with Orr. Dignam & Co., Advocate for the [ENTITY].
Subsequently, on an application taken out by the [ENTITY] in the above suit, an order was passed on December 17, 1962 with a direction for depositing sum of Rs.5,50,000/- in two separate lots of Rs.3,00,000/- and Rs.2,50,000/- in short term fixed deposit by M/s. Orr. Dignam & Co.
By a letter dated September 23, 1963, Orr. Dignam & Co. informed that they had deposited a sum of Rs.2,50,000/- and Rs.3,00,000/- respectively with National Grindlays Bank Ltd. and First National City Bank of New York respectively which were being renewed on same terms.
In the meantime, in 1961, a Company Petition being [CASE NUMBER] was filed by Acharya group of shareholders in Shree Ganesh Properties (P) Ltd. under [SECTION] and [SECTION] of the [ACT] in relation to management and affairs of the above company. The above petition was disposed of on September 17, 1976. An appeal being [CASE NUMBER] was filed from the above order dated September 17, 1976 and an order was passed by the Appeal Court staying of the above order dated September 17, 1976.
On January 27, 1997, a Division Bench of this Court passed an order on contest in the above appeal being [CASE NUMBER] providing for the mode of settlement of disputes between the shareholders of Ganesh Properties (P) Ltd. which also contained provisions for disposal of suit property being [CASE NUMBER] which gives rise to this appeal. Subsequently, on April 9, 1999, the aforesaid order was modified as agreed upon by and between the parties before the Hon'ble Appeal Court.
On June 24, 2002, an application was taken out by the [ENTITY], plaintiffs/respondent Nos.1A(i) to 4(iv), for a direction upon [ENTITY] and his legal heirs and representatives for execution of deed of conveyance in their favour in respect of the suit property and the impugned judgment was passed on the above application.
It is further placed on record that in compliance of an order dated July 24, 2002, publication was made in daily issue of 'Hindusthan Times', 'Pratidin' and 'Sanmarg' giving notice to the legal heirs and representatives of [ENTITY], the [ENTITY].
It is further placed on record that save and except the appellant no one else filed any affidavit-in-opposition in response to the aforesaid order dated July 24, 2002.
After hearing the parties, the impugned judgment and decree was passed on May 23, 2003. It was held that the decree dated May 5, 1959 passed in [CASE NUMBER] had not been time-barred.
After considering the order dated December 17, 1962 passed in [CASE NUMBER], the Trial Court, while passing the impugned judgment and decree, came to the conclusion that the respondents are entitled to get the benefit of [SECTION] of the [ACT]. It was also observed that admittedly the consent decree dated May 5, 1959 passed in [CASE NUMBER] was binding upon the [ENTITY] and his legal heirs and representatives, as a result, the Trial Court vacated the order passed in the Suit on July 27, 1959, with a direction upon the [ENTITY] and his legal heirs and representatives to execute the deed of conveyance in respect of the said property with a further direction upon M/s. Orr. Dignam & Co. to hand over the amount of Rs.2,50,000/- and Rs.3,00,000/- the amounts so deposited with them in terms of the order dated December 17, 1962 with accrued interest thereupon to [ENTITY] and/or his legal heirs and legal representatives towards the full and final payment of the price of the property. Hence, this appeal.
At the very outset, a preliminary objection is raised on behalf of the respondent Nos. 1A(i) to 4(iv) drawing the attention of this Court towards a communication dated August 2, 2002 (at page 93 of the paper book) issued by M/s R.C. Kar on behalf of the added respondents in this appeal addressed to Khaitan & Co., Solicitors & Advocates. It is submitted by the learned counsel that [ENTITY] breathed his last on October 10, 1984 testate under the Will. The suit property was bequeathed in favour of the added respondents, i.e., the grand children of [ENTITY] and the above Will was probated on May 20, 1988 from High Court at Calcutta in [CASE NUMBER]. According to him, after probate the executors had released all properties in favour of the grand children of [ENTITY] and the right, title and interest of [ENTITY] in the suit property as per Will.
The attention of this Court is further drawn towards the statements made in paragraphs 2 and 3 of the affidavit filed by the appellant in [CASE NUMBER] (at page 82 of the paper book) to submit that there is no dispute with regard to the above fact.
According to the learned Counsel, the appellant has no right, title and interest over the suit property and he is not a party aggrieved by the impugned judgment and decree and as a result, no leave can be granted in favour of the appellant in this appeal.
The attention of this Court is also drawn towards the decree dated May 5, 1959 passed in [CASE NUMBER] with the consent of the parties to submit that it is not open to any party to the above proceeding to reopen the issue of execution of deed of conveyance under reference. It is also submitted by him that in the event this appeal is not maintainable at the instance of the appellant, the transposition of any respondent as appellant to this proceeding is not permissible. Drawing the attention of this Court towards the letter dated September 23, 1963 issued by the Orr. Dignam & Co., it is submitted by him that the amount deposited towards the consideration money of the deed of conveyance under reference has been increased to a considerable amount after the addition of the interest thereupon.
In support of the aforesaid submissions, the learned Counsel appearing for the above respondents relied upon the decisions of [ENTITY] & Anr. vs. Gocool Chunder Bhuttacharjee, reported in I.L.R. 6 Cal. 370, [ENTITY] vs. United Africa Co., Ltd., reported in 1961 All E.R. 1169, [PRECEDENT], [PRECEDENT], [PRECEDENT].
On the other hand, it is submitted by the learned Counsel appearing on behalf of the appellant that this appeal is maintainable at the instance of this appellant in view of the order in terms of prayer (c) of the suit, amongst others. According to him, though [ENTITY] was not a party to the above suit, direction was given to execute the deed of conveyance under reference in his favour, amongst others. It is also submitted by him that under the provisions of [SECTION] of the [ACT], the suit was not maintainable since neither the plaintiff nor the defendant was the owner of the suit property.
It is submitted by him that though the provisions of [SECTION] of the [ACT] had no manner of application in the instant matter, impugned decree was passed relying upon the above provision. According to him, delay defeats equity. According to him, though assuming that this appeal is not maintainable at the instance of the appellant, the same is maintainable after transposition of the added respondents as appellants on the basis of their application. Reliance is placed on the decisions of [ENTITY] vs. S.V.V. Somiah, reported in AIR 1964 Supreme Court 227, [PRECEDENT], [ENTITY] vs. Nazir Ahmed & Ors., reported in AIR 2003 Calcutta 230, [ENTITY] & Ors. vs. Vairavan, reported in AIR 1997 Supreme Court 1751, [ENTITY] vs. Bangi Lakshmamma & Ors., reported in AIR 2009 SC (Supp) 391, [ENTITY] vs. Rajeswar Prosad Bhakat & Ors., reported in A.I.R. 1931 Privy Council 162, [ENTITY] vs. Sir Swarup Chand Hukum Chand, Firm & Anr., reported in [PRECEDENT], [ENTITY] vs. Allahabad Development Authority & Anr., reported in [CASE NUMBER] in support of above submissions.
We have heard the learned Counsel appearing for the respective parties and we have considered the facts and circumstances of this case carefully. It is not in dispute that by virtue of Will, the right, title and interest of the suit property have been vested in favour of the 10(ten) added respondents. Needless to point out that the Will was probated by an order dated May 20, 1988 passed by this High Court in [CASE NUMBER]. Thereafter, the suit property was released by the executors in favour of the aforesaid legatees. Therefore, the aforesaid legatees are now under obligation to execute the deed of conveyance in terms of the consent decree dated May 5, 1959 passed in [CASE NUMBER]. Needless to point out that the [ENTITY] was a party to the above consent decree and the added respondents in this appeal are under obligation to give effect to the above consent decree after release of the suit property in their favour in terms of the order dated May 20, 1988 passed in [CASE NUMBER]. The appellant has become a stranger to any transaction in respect of the suit property in view of the above-admitted facts. Consequent upon the above facts and circumstances, this appeal is not maintainable at the instance of the appellant. In view of the above, this appeal can be taken up for hearing on merit only in the event the transposition of the added respondents is permissible in accordance with law.
It is necessary to point out here that by an order dated November 25, 2003 passed in this appeal in connection with [CASE NUMBER], 10(ten) grand children have been added as respondents in this appeal without prejudice to the rights and contentions of the respective parties including the parties so added.
Addition of plaintiff and/or appellant is permissible to those cases only where the plaintiff/appellant who has brought this suit/appeal is one of the right parties to sue, but some other persons, otherwise jointly interested with himself, ought to have been joined as co- plaintiffs/respondents. But it is not permissible in accordance with law for a plaintiff who has brought a suit without having any right to do so, to add the name of a person who has the right to sue, and to obtain a decree in right of that person. Reference may be made to the decision of [ENTITY] & Anr. (supra) and the relevant portions of the above decision are quoted below:
" The amendment was made at the trial under [SECTION] of the [ACT], which allows the Court "to order that the name of any person who ought to have been joined in the suit, either as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate and settle all questions involved in the suit, should be added." That section, so far as the addition of plaintiffs is concerned, appears to me to apply to those cases only where the plaintiff who has brought the suit is one of the right parties to sue, but some other person, either as being his co- contractor, or otherwise jointly interested with himself, ought to have been joined as a co-plaintiff. I do not think that the section is intended to enable a plaintiff who has brought a suit without having any right to do so, to add the name of a person who has the right to sue, and to obtain a decree in right of that person; and I rather think that the learned Judge in the Court below was of that opinion, because he goes into the question of whether the original plaintiff in this case had a right to sue, and decides that he had, because the defendants were vexatiously withholding the debt from the plaintiff, and so the case came within the exception in [SECTION] of [ACT]."
[ Emphasis supplied] In the matter of [ENTITY] (supra), Lord [ENTITY] observed as follows:
" If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the Court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse. So will this judgment collapse if the statement of claim was a nullity."
We do not find any substance in the submissions made on behalf of the appellant that direction upon the legal heirs and representatives for executing the conveyance can be challenged by the appellant on the ground that though [ENTITY] had not been party to the suit, he was held responsible to carry out the impugned judgment and decree simply due to the reason that the above decree is not binding upon a person who was not a party to a proceeding. That apart, this appeal is not maintainable on that ground when such an objection is raised by a stranger to the suit under reference and the person concerned, i.e., [ENTITY] has not come up before the Court seeking any relief.
In our opinion, the proposition of law as discussed hereinabove is applicable in case of deciding the prayer of the added respondents, i.e., 10(ten) grand children of [ENTITY] so far as the question of their transposition as plaintiffs is concerned.
The decision of [ENTITY] (supra) is not applicable in this case in view of the admitted fact of that case that the Court allowed transposition of proforma defendants as co-plaintiffs of the appellant. In that case the appellant was not a stranger to the suit and he continued to be one of the plaintiffs unlike the facts of our case. For the same reason, the decision of [ENTITY] (supra) has no manner of application in this case.
The decision of [ENTITY] (Supra) has no manner of application in this case in view of the admitted position that the proforma defendant in the suit preferred an appeal on the ground that his interests with reference to the subject-matter of the suit had been prejudiced. In this case it has already been held hereinabove that the appellant is not a party interested to the suit having no right or title over the suit property.
The decisions of [ENTITY] (supra), [ENTITY] (supra), [ENTITY] & Ors. (supra), [ENTITY] (supra) need not be considered since the aforesaid decisions are placed before this Court in support of submissions made in respect of the merits of this case. It has been held hereinabove that this appeal is not maintainable at the instance of the appellant. Needless to point out that his argument on merits of this case cannot be considered.
In view of the discussions and observations made hereinabove, the appeal fails and the same is dismissed. Since the time limit prescribed for compliance of the impugned judgment and decree has expired, the same is extended for a period of three months from date.
The application bearing [CASE NUMBER] is also dismissed accordingly.
There will be, however, no order as to costs.
Urgent Photostat certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.
I agree. ( [ENTITY], J.) ([ENTITY], J.)