- (1.) This appeal from an appellate decree is at the instance of the plaintiff in a suit for declaration and permanent injunction which has been concurrently dismissed by the two courts below. It would be necessary to refer to certain facts lying in the background in order to appreciate and decide the real dispute between the parties and such facts are set out hereunder.
(2.) Dhiresh Chand Ghosh, since deceased, was admittedly the owner of premises No.8D, Mohanlal Street (hereinafter referred to as the suit premises) and the plaintiff/appellant was a tenant under the said owner in respect of the suit premises. On July 28, 1953, the said Dhiresh Chand Ghosh executed a will wherein he appointed his two sons Amarendra Nath Ghosh and Salil Kumar alias Salil Chandra Ghosh, defendants 3 and 4 (hereinafter referred to as such) to be the executors and trustees under the said will. In paragraph 5 of the said will, the said Dhiren Chand Ghosh made the following bequest: "I give, device and bequeath the premises No.8D, Mohanlal Street to my executors and trustees to hold the same upon trust following: - a) Upon trust to allow my son Santosh Kumar Ghose to reside therein or pay to him, the net rent and profits thereof or to allow him to live in part thereof and pay to him net rents and profits of the remainder thereof during the term of his natural life. b) After the death of my son Santosh Kumar Ghosh, to make over the said premises absolutely to the son or sons of my said son Santosh Kumar Ghosh and if more than one in equal shares.
(3.) Dhiresh died an year after on July 29, 1954. On September 12, 1955, the two executors defendants 3 and 4 took out probate from the original side of this High Court and a week prior thereto that is, on September 6, 1955, the executors addressed the following letter to the plaintiff, the tenant in respect of the suit premises: "Dear Sir, Re : 8D, Mohanlal Street. Probate has been granted to us by the Hon'ble High Court at Calcutta as the executors to the will of late Shri Dhiresh Chand Ghosh. The above property has been given by the said will of Mr. Dhiresh Chand Ghosh to Sri Santosh Ghosh. We as the executors have assented to the said bequest and have made over the said property to Shri Santosh Kumar Ghosh. Please attorn and pay rent to the said Shri Santosh Kumar Ghosh from the month of August 1955. Rent upto July has been paid by you. Yours faithfully, Amarendra Nath Ghosh Salil Chandra Ghosh Executors to the estate of Dhiresh Chand Ghosh by virtue of the probate of the said will granted by the Hon'ble High Court at Calcutta." Since them, Santosh Kumar Ghosh, defendant No.2 (hereinafter referred to as such) continued to realize rent from the plaintiff on his own account.;