Smt. Kanika Saha and others v. Tarun Saha and another

for declaration of the plaintiff’s legal heirship of proforma defendant nos.6 and 7, that is, the parents of the plaintiff, to inherit one third share of the “family business” and the schedule 2 property with defendant nos. 1 and 2 and for permanent injunction restraining the defendants from transferring and/or alienating and/or encumbering and/or creating any third party interest in respect of the suit property, as well as for other reliefs including a declaration that the plaintiff/respondent no.1 is entitled to participate in the family business carried out at the schedule shop with the other defendants and restraining the defendants from transferring the liquor license in the name of the defendants or any other third party permanently.

In connection with the said suit, an injunction application was filed, which was disposed of by the impugned order, whereby the learned trial Judge allowed the said application and restrained the defendant nos.1, 2, 3, 4 and 5/appellants and proforma defendant no.7 from selling, transferring and/or alienating and/or creating any third party interest in the schedule property as well as in the liquor business till the disposal of the suit.

The said defendants and proforma defendant were further restrained from causing any further mutation of names in the said liquor license until further order of the court.

The defendant nos.1 and 2 were given the liberty to renew the trade license.

Learned senior counsel appearing for the appellants argues that the suit, as filed, is not maintainable in its present form since it has been filed claiming right to a liquor business which was 3 standing in the name of the parents of the plaintiff/respondent no.1 at the juncture of institution of the suit.

Since the parties are governed by the Dayabhaga School of Hindu Law, it is argued that prior to the demise of the parents, the plaintiff could not have any right, title or interest either in respect of the liquor license and/or the estate of his parents. It is next argued by learned senior counsel for the appellants that a tenancy or a license to run the shop from the suit premises is not heritable. It is contended that a liquor license is also not heritable and it is at the discretion of the authorities whether to grant a liquor license on the demise of the original license-holder, to the heirs

of the deceased or to other persons of their choice.

Although there is a discretion on the part of the authorities to grant license, it is submitted that the heirs of the deceased licensee have a prior right in case of issuance of fresh license on compassionate ground.

However, such mere priority cannot confer a legal right on the heirs of the licensee.

Learned senior counsel cites the judgment of a learned Single Judge of this Court in the matter of Gurupada Das vs. State of West Bengal and others reported at 2022 SCC Online Cal 1281, where it was held, inter alia, that according to the provisions of the Control Order, 2013, license is not heritable but the eligible 4 family members of the deceased licensee do get a priority in issuance of fresh license on compassionate ground. The same, however, can be transferred only during the lifetime of the licensee if the licensee opts in favour of one of the eligible family members.

It is submitted that such principle in respect of Control Orders and fair price shops is also applicable to liquor licenses.

Learned senior counsel further argues that the renewal and/or inheritance in respect of a liquor license is entirely subject to the provisions of the governing Regulations and Rules and no legal right is conferred on any of the parties to have such license issued in their favour.

Learned senior counsel argues that the provisions of the Bengal Excise Act, 1909 govern such grant of license.

License is a privilege and is not heritable, and at best the authorities may consider fresh grant of license to an heir of the deceased license-holder.

Learned senior counsel relies on Section 44A of the said Act for the proposition that there cannot even be a claim, as a matter of right, for a licensee to seek renewal. It is entirely the discretion of the competent authority to renew or grant a fresh license, it is argued.

It is further argued that the West Bengal Excise (Change in Management) Rules, 2009 provides that no initial grant fee of 5 license shall be payable for change in management in the case of death of one or more of the joint licensees when such new licensee is selected from amongst legal heirs or representatives of such deceased joint licensees and when such newly selected licensee is/are willing and otherwise eligible to hold the license along with the surviving licensees.

Learned counsel appearing for the plaintiff/respondent no.1 submits that an application filed by the defendants/appellants under Order VII Rule 11 of the Code of Civil Procedure for rejection of the plaint was dismissed by the learned trial Judge.

To this, it is contended by the appellants that a challenge to the same has been preferred, which is now pending before a different Bench of this court.

Learned counsel appearing for the plaintiff/respondent no.1 further contends that the injunction application was filed three years after the filing of the suit, subsequent to the demise of the father of the plaintiff/respondent no.1, that is, proforma defendant no.6.

As such, as on the date when the injunction application was filed and first moved, inheritance rights had devolved on the plaintiff along with two of the other defendants in view of the demise of his father. 6

Thus, it is argued that it cannot be said that as on the date of passing of the impugned order, no present right had accrued in favour of the plaintiff/respondent no.1.

It is next argued that the plaintiff had no other option but to file the suit in order to protect the liquor business which was the family business run by the family since long.

As the father of the plaintiff was bed-ridden at that juncture, the plaintiff was constrained to file the suit even before the demise of his father.

Learned counsel contends, by placing reliance on paragraph nos. 18 and 19 of the injunction application, that the defendants are earning huge sums of money in lieu of the liquor license and the suit property and seeking to create third party interest in respect thereof, which all the more prompted the learned trial Judge to grant an injunction as prayed for.

Learned counsel for the plaintiff/respondent no.1 next relies on Rule 5(C)(ii) of the West Bengal Excise (Transfer of License) Rules, 2023 which stipulates that in case of a firm or limited lability partnership or cooperative society, excise Commissioner shall allow the grant of license in a fresh manner amongst the surviving partners along with a legal heir of the deceased holder selected by the concerned collector.

The name of the legal heir to be inducted in the license must be endorsed as per the said Rule by all the legal heirs of the 7 deceased within six months the death of partner/member.

It is argued that no signature or consent was taken from the plaintiff, who is also a legal heir, before transferring the license in the name of the mother and the aunt of the plaintiff.

Upon hearing learned counsel for the parties, we find certain salient features in the matter.

First, as on the date of filing of the suit, the plaintiff did not have a right in praesenti either to the liquor business run by the father of the plaintiff or to the immovable property from which the said business was run, since his father was still alive.

Insofar as the immovable property is concerned, whether the same is granted by way of a license or a tenancy for running the liquor business, no title to the said property can be claimed by the tenant/licensee or his heirs.

Thus, the portion of relief (a) of the plaint whereby the plaintiff seeks right of inheritance to the schedule property is prima facie not maintainable in the eye of law.

Even insofar as the right to get an inheritance of one third share of the family business is concerned, it is to be noted that the said business entirely centers around sale of liquor, which translates into a right being claimed to the liquor license issued by the competent authority. 8

However, the right to have a liquor license is not a legal right vested with anyone, be he an heir of an existing license-holder or a third party.

License, as rightly argued by the appellants, is a privilege and it entirely upon competent authority, upon due consideration in terms of law, to grant such license in favour of one person or the other.

On the demise of a license-holder, the legal effect is that such license ceases to operate and vests back in the competent authority and the latter may, in its discretion exercised in accordance with law, issue a fresh license in favour of any new person, either an heir of the previous license holder or a third party.

Learned counsel for the plaintiff/respondent no.1 places reliance on the 2023 Rules which, inter alia, provides that if the excise license granted to a proprietary business, firm etc. lapses on the death of any of the proprietor or partners or members, the Excise Commissioner shall allow the grant of license in a fresh manner amongst the surviving partners along with a legal heir of the deceased holder selected by the concerned Collector.

The name of the legal heir in such case, to be inducted in the license, must be endorsed by all of the legal heirs of the deceased within six months the death of partners/members. 9

However, the concept of grant of license amongst surviving partners does not arise in the case of the present liquor license, since it was individually held by the father of the plaintiff.

Insofar as the necessity to have an endorsement by the other legal heirs before grant of the license afresh in favour of the mother and the aunt of the plaintiff is concerned, we do not find as yet any clear averment in the plaint, by way of amendment or otherwise, or any relief sought seeking cancellation of the fresh grant of license in favour of the said new licensees.

However, it will be open to the plaintiff to urge such point in the event such an amendment is effected to the plaint at any future point of time.

As of today, however, we do not find any foundational basis of a challenge to such fresh license in the plaint pleadings in order to grant relief to the plaintiff on such count.

Insofar as the maintainability of the suit is concerned, we also have our doubts as to whether the suit was at all maintainable ab initio in view of the plaintiff having claimed a future right of heirship on the anticipation of the demise of his father and mother, despite the said parents being fully alive on the said date.

The right of a prospective inheritance is not a legal right in praesenti, the infringement of which may permit a party to file a suit on such count. 10

It may very well be that a person who is the owner of a property transfers such property during his lifetime and/or conveys the said property to anybody of his choice by way of a Will posthumously, in which case his natural line of succession would not be followed.

In the Dayabhaga system of Hindu Law, the successors/heirs do not have a right in praesenti in the estate of their predecessor during the lifetime of the predecessor and as such, the issue of maintainability of the suit, for the limited consideration of prima facie case for the grant of injunction, must be held against the plaintiff/respondent no.1.

In view of the above observations, we find that the learned trial Judge palpably erred on law in granting an injunction in favour of the plaintiff without adverting to the relevant and salient features of the matter in issue, as indicated above.

However, we make it clear that we have not adjudicated on any of the above issues conclusively and the above findings are only tentative for the purpose of deciding the present appeal, preferred against a temporary injunction order.

The learned trial Judge, while deciding the suit, shall independently decide all issues involved without being influenced in any manner by any of the observations made above or in the order impugned herein. 11

However, in view of the above discussions, we have no other option but to set aside the impugned order.

Accordingly, F.M.A. 668 of 2024 is allowed on contest, thereby setting aside the impugned order, bearing Order No.28 dated February 16, 2024 passed by the learned Judge, Eleventh Bench, City Civil Court at Calcutta in Title Suit No. 15 of 2019.

Consequentially, CAN 2 of 2024 is also dismissed.

There will be no order as to costs. I agree. AD-24 AK (Sabyasachi Bhattacharyya, J.) (Uday Kumar, J.)