The Calcutta High Court has clarified that a testamentary bequest of leased property constitutes an assignment under restrictive lease clauses, requiring prior written consent from the lessor. However, the Court also affirmed that mutation in favor of a nominee of other heirs - where such nomination has historically been accepted by the lessor - is valid independently of the Will, establishing a critical distinction between testamentary succession and familial nomination.
Background & Facts
The Dispute
The dispute centers on the mutation of a property in Santiniketan, West Bengal, originally leased to Gyan Ghosh in 1951 by Visva Bharati, then a registered society. The lease deed contained Clause 10, which prohibited the lessee from assigning, transferring, letting out, or mortgaging the lease without the prior written consent of the lessor, except in favor of life members of Visva Bharati. After Visva Bharati became a statutory university under the Visva Bharati University Act, 1951, the concept of life membership became obsolete. The central issue was whether the respondent, Smt. Geeta Ghosh, widow of Priyabrata Ghosh, could claim mutation of the property based on her husband’s Will or on the basis of a release deed executed by his other heirs.
Key Facts
- The original lessee, Gyan Ghosh, died in 1994.
- On 01.01.1995, Visva Bharati mutated the property in favor of Priyabrata Ghosh (Gyan Ghosh’s son) based on a nomination by other heirs of Gyan Ghosh.
- Priyabrata Ghosh died on an unspecified date prior to 2022, leaving behind his widow, Geeta Ghosh, and three sons.
- Geeta Ghosh applied for mutation of the property in her name on the basis of a probated Will executed by Priyabrata Ghosh, bequeathing the property to her.
- Visva Bharati refused mutation, citing Clause 10 of the lease deed, which prohibited assignment without consent.
- Before the writ court, Geeta Ghosh produced a registered release deed dated 2021, executed by Priyabrata’s three sons, relinquishing their rights in favor of their mother.
- Visva Bharati had never objected to the 1995 mutation based on nomination, despite Clause 10’s restrictions.
Procedural History
- 01.01.1995: Visva Bharati granted mutation in favor of Priyabrata Ghosh based on nomination by other heirs of Gyan Ghosh.
- 2021: Geeta Ghosh filed application for mutation based on Will and release deed.
- 2022: Visva Bharati rejected the application.
- 2022: Writ Petition (WPA 22202 of 2022) filed before the Single Judge of the Calcutta High Court.
- 09.09.2025: Single Judge set aside Visva Bharati’s refusal and directed mutation in favor of Geeta Ghosh.
- 2025: Visva Bharati filed appeal as MAT 1949 of 2025.
- 2026: Contempt applications CAN 1 of 2026 and CAN 2 of 2026 filed seeking condonation of delay.
- 06.05.2026: Division Bench heard the matter and delivered judgment.
The Parties' Positions
For the Appellant (Visva Bharati): Argued that the Will constituted an assignment under Clause 10, which required prior written consent. Since no such consent was obtained, the bequest was invalid. Relied on State of West Bengal v. Kailash Chandra Kapur (1997) 2 SCC 387 to assert that testamentary disposition falls within the broad meaning of “assignment.”
For the Respondent (Geeta Ghosh): Contended that mutation was valid not because of the Will, but due to the registered release deed executed by Priyabrata’s sons, which functioned as a nomination akin to the 1995 precedent. Argued that Visva Bharati had consistently accepted nomination by heirs as a valid basis for mutation.
Relief Sought
The respondent sought mutation of the property in her name, recognition as lessee under the lease, and a direction to Visva Bharati to complete the mutation within a stipulated time. The appellant sought to set aside the Single Judge’s order and uphold its refusal.
The Legal Issue
The central question was whether a testamentary bequest under a lease deed containing a blanket prohibition on assignment without prior consent constitutes a prohibited transfer, and whether mutation can be granted on the basis of nomination by other heirs, even in the absence of a valid assignment.
Arguments Presented
For the Appellant
Visva Bharati contended that Clause 10’s prohibition on assignment encompassed testamentary transfers, as confirmed by the Supreme Court in Kailash Chandra Kapur. It argued that the Will, being a posthumous transfer in exclusion of other heirs, was an assignment requiring consent. It further argued that the 1995 mutation in favor of Priyabrata was an administrative error and could not bind the university. The absence of life membership, now obsolete, did not override the express terms of the lease.
For the Respondent
The respondent argued that the Will was not the basis for mutation. Instead, the registered release deed by Priyabrata’s sons constituted a nomination, which Visva Bharati had historically accepted under Clause 11(b)(v). She relied on the principle of estoppel and consistent administrative practice, citing the 1995 precedent. She contended that Clause 11(b)(v) created a right to succession by nomination, independent of testamentary succession, and that the proviso nullified the life membership requirement.
The Court's Analysis
The Court undertook a detailed textual and contextual analysis of Clause 10 and Clause 11(b)(v). It acknowledged that Kailash Chandra Kapur established that the term “assignment” includes testamentary dispositions, and therefore, the Will alone could not serve as a valid basis for mutation without prior consent.
"Clause 10 does not distinguish between a transfer inter vivos and a posthumous transfer and/or between a testate and intestate devolution. As such, there is a blanket bar to assignment, whether inter vivos or posthumous, in Clause 10 unless there is a prior consent in writing of the lessor."
However, the Court then turned to Clause 11(b)(v), which provides an exception: if the lessee dies without a valid transfer or bequest, and the heir or nominee does not become a life member, the lessor may re-enter. But the proviso to this clause states: "admission of the legatee, heir or nominee of the heirs of a deceased lessee as a life member of the Visva Bharati shall not be refused by the lessor."
The Court held that the proviso effectively negates the life membership condition, rendering it a non-starter. It further observed that Visva Bharati itself had acted on this interpretation in 1995, when it mutated the property in favor of Priyabrata Ghosh based on nomination by other heirs of Gyan Ghosh.
"Thus, the proviso cancels out the additional requirement of life membership incorporated in the main body of sub-clause (v)."
The Court concluded that the release deed executed by Priyabrata’s sons was functionally equivalent to the nomination accepted in 1995. Since Priyabrata had become a lessee for all purposes upon his 1995 mutation, his heirs were entitled to nominate a successor under the same terms. The Court emphasized that Visva Bharati could not now deny the validity of a mechanism it had itself applied for over two decades.
The Verdict
The appeal was dismissed. The Court affirmed the Single Judge’s order dated 09.09.2025 and directed Visva Bharati to mutate the name of Smt. Geeta Ghosh in the records of the subject property within one month from the date of judgment. There was no order as to costs. The Court held that while the Will alone could not justify mutation, the nomination by other heirs under Clause 11(b)(v) provided an independent and valid basis for the relief granted.
What This Means For Similar Cases
Nomination Overrides Testamentary Bequest in Lease Succession
- Practitioners must now prioritize nomination deeds over Wills when seeking mutation of leased property under restrictive clauses.
- A release deed by co-heirs, even without probate, may suffice if the lessor has historically accepted such nominations.
Administrative Consistency Creates Binding Precedent
- Where a lessor has consistently applied a particular interpretation (e.g., accepting nomination as valid), it cannot later deny the same principle to avoid liability.
- Estoppel by conduct applies even in public university leases.
Life Membership Clauses Are Rendered Inoperative by Provisos
- Where a lease clause imposes a condition (e.g., life membership) but a proviso mandates that the condition shall not be refused, the condition becomes a nullity.
- This principle applies to any statutory or institutional lease with similar language.
