Rabindra Nath Mullick & Ors vs Balaram Mullick on 22 July, 2026

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    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.

    SPONSORED

    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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    2022:CHC-OS:6573
    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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    2022:CHC-OS:6573
    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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    2022:CHC-OS:6573
    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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    2022:CHC-OS:6573
    to mislead the Court. The suit is not related to trustees or trust; it is simplicitor a suit

    under 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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    2022:CHC-OS:6573
    For reasons stated above, the instant application is dismissed and disposed of.

    (SUGATO MAJUMDAR, J.)



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