Calcutta High Court
Rabindra Nath Mullick & Ors vs Balaram Mullick on 22 July, 2026
Author: Sugato Majumdar
Bench: Sugato Majumdar
2022:CHC-OS:6573
OD -25
ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
ORIGINAL SIDE
IA NO. GA/5/2024
In CS/163/1977
RABINDRA NATH MULLICK & ORS.
Vs
BALARAM MULLICK.
BEFORE:
THE HON'BLE JUSTICE SUGATO MAJUMDAR
Date: 22nd July, 2026
Appearance:
Mr. Suman Dutta, Sr. Adv.
Ms. Monica Jaiswal, Adv.
Mr. Prashant Kumar Singh, Adv.
....for the Plaintiff
Mr. Souradipta Banerjee, Adv.
Mr. Rahul Karmakar, Adv.
Mr. A.Pathak, Adv.
Ms. Fatima Hassan, Adv.
...for the subsequent purchaser
Mr. B. N. Joshi, Adv.
Mr. Arif Ali, Adv.
Mr. Varun Kothari, Adv.
Ms. S. Kundu, Adv.
...for the Respondent nos. 10 & 11
The Court: The instant application was filed praying for recalling of the order
passed by this Court on 16/09/2022 and to restore the original suit.
The suit was filed by the original Plaintiffs against the original sole Defendant
praying for declaration that the Plaintiffs were trustees of the property of one
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Ratnamala Dassi, since deceased; declaration that the deeds executed by the said
Ratnamala Dassi, since deceased dated 24/04/1970 and on 28/09/1970 are invalid
and inoperative with further prayer of cancellation of the said deeds; declaration that
the power of attorney executed by the said Ratnamala Dassi, since deceased was
invalid and inoperative; declaration that the deed of cancellation and fresh
appointment of trustee dated 14/09/1973, executed by the original Defendant No. 2
is invalid, illegal and inoperative; the said deed dated 14/09/1973 be cancelled and
delivered up; declaration that the original Defendant was not lawfully appointed
trustee to the estate of the said Ratnamala Dassi, since deceased; injunction and
other reliefs.
The suit was dismissed for default by this Court on 16/09/2022.
Subsequently, an application for restoration of the suit was filed. The restoration
application was also dismissed, considering long delay and absence of explanation.
On being aggrieved an appeal was preferred. The Division Bench, in terms of the
Order dated 26/02/2024 observed that whether the right to sue survived in the
serving shebaits, though the Plaintiff nos. 1, 3 and 4 died and the sole Defendant died
on 11/02/1989, should be considered. Direction was also given to file appropriate
application before this Court.
Pursuant to the direction passed by the Division Bench, the instant
application has been filed, by the son of the original Plaintiff No. 1.
It was pleaded among others, that in terms of the Order dated 07/09/1977,
this Court appointed one Receiver over and in respect of the trust property. In or
about the year 2011, when the said order was still subsisting, the heirs of the
Defendant had created a third party interest in respect of the trust property and sold
it out in violation of the subsisting order of this Court. With efflux of time, the
Plaintiff No. 1 expired on 26/08/2008, the Plaintiff No. 2 expired on 27/06/1982,
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the Plaintiff No. 3 expired on 17/09/2021, the Plaintiff No. 4 expired on 22/06/2007
and the Defendant No. 1 expired on 11/02/1989. The son of the Defendant No. 2 had
not been substituted also expired subsequently on 13/02/2005. On 20/05/1979, the
Defendant No. 2 expired and the name was struck off from the cause-title.
It was further contended that the last surviving Plaintiff expired on
17/09/2021. As per the deed of trust dated 18/09/1944, shebaitship of the Plaintiffs
were joint and even after death of a shebait, right to sue survives and continues to
vest in the existing shebaits. The suit property belongs to the trust and the trust is a
non-living juristic person. The suit cannot abate on death of shebaits. It was also
contended that prior to death, the last surviving shibait being the Plaintiff No. 3 had
been ailing and had been bed ridden, as a result of which proper steps could not be
taken. After death of the Plaintiff No. 3, the Petitioner herein, found the cause
papers in an almirah on 15/08/2023 and then took necessary steps in the suit. Delay
was not attributable to deliberate negligence but outcome of reasons beyond control.
Therefore, the Petitioner prays for recalling of the aforesaid order passed by this
Court.
Two affidavit-in-opposition were filed.
One affidavit-in-opposition was filed by one Pramod Kumar Lundia, the
constituted attorney of the Noticee no. 10 & 11. Denying all the contentions made in
the Petition, it was pleaded that there was long delay which is attributable to the
lackadaisical attitude of the Petitioner. The sum and substance of the affidavit-in-
opposition was that the petition should be dismissed.
The second affidavit-in-opposition was filed on behalf of the
purchaser/intervenors. Denying all the plea taken by the Petitioner, it was averred,
among others, that the father of the Petitioner was not the last surviving trustee. The
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last surviving trustee Jitendra Nath Mallick died in the year 2021. Since then, the
Petitioner could not have assumed the office of trust as trustee. The father of the
Petitioner expired in the year 2008. Therefore, the Petitioner never acquired any
right and has no cause of action to file the instant application. In view of the death of
the trustees, the suit abated long ago. Various other pleas were made touching the
execution of the trust deed which need not be looked into at this stage.
Mr. Dutta, Learned Senior Counsel appearing for the Petitioner argued
principally on the point that the suit property is a debutter property and right to sue
survived on the existing shebaits, on death of the original parties. Since, the
properties are debutter property, the suit cannot abate. In continuation of argument,
Mr. Dutta challenged the propriety of transfer in favour of the Intervener as well as
the locus standi of the Interveners to argue in this matter. Mr. Dutta referred to
three Judges Bench decisions of the Supreme Court of India:
ï‚· Seth Hiralal Patni Vs. Seth Loonkaran Sethiya & Ors. [(1961)
SCC OnLine SC 312]
ï‚· Shri Rikhu Dev, Chela Bawa Harjug Dass Vs. Som Dass
(Deceased) Through His Chela Shiam Das [(1976) 1 SCC 103]
ï‚· K. Sreedhara Reddy Vs. The Conservator of Forests & Ors.
[(1976) 1 SCC 107]
ï‚· Raj Grihi Ram Vs. Anand Kumar Shaw [(2013) SCC Online
Cal 146]
Mr. Banerjee, the Learned Counsel for the Intervener, per contra, submitted
that sudden discovery of documents by the Plaintiff No. 1’s son in the year 2023 is
not only misleading but a false and concocted story. Argument that the suit relates to
trust property or issues relating to trustee is not only a sham but a deliberate attempt
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to mislead the Court. The suit is not related to trustees or trust; it is simplicitor a suitunder Section 34 of the Specific Relief Act, 1963. The suit property is also not a
debutter property. Therefore, according to Mr. Banerjee, the application should be
dismissed.
I have heard rival submissions.
Although Mr. Dutta argued that the suit property is a debutter, the schedule of
the plaint nowhere speaks out that it’s a debutter property. Similarly, the original
parties were arrayed in their individual capacity not in the capacity of a shebait. No
deity is party here being represented by any shebait. A plain reading of the plaint
shows that this is a suit seeking for declaratory decree and cancellation of
instrument; this is not a suit for administration of debutter property or any trust
property. Evidently, it cannot be said the suit relates to debutter property.
Another issue may be considered; the issue is whether the right to sue
survived or not. Even assuming that the rights to sue survived, legal representatives
of the deceased parties were not brought on the record. All the parties expired.
Admittedly, Defendant No. 1 expired on 11/02/1989 and the Defendant No. 2 expired
on 20th May 1997, named of the Defendant No. 2 was stuck off by order dated 25th
March, 1980 but there had been no substitution. Even accepting the plea that the
right to sue survived. The suit abated long ago. It is clear and understandable that to
bypass the rigours of the law of limitation an argument has been devised and crafted
that the suit property is a debutter property and never abated. Decisions referred to
by Mr. Dutta are clearly distinguishable. There is no cavil on the principal of law
enunciated therein but, the case in hand, does not invite application of those
principals of law. Inevitable conclusion on the basis of admitted pleading is that the
suit abated long ago, therefore, the question of restoration or recalling the order
dated 16th September, 2022, does not arise.
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For reasons stated above, the instant application is dismissed and disposed of.
(SUGATO MAJUMDAR, J.)
