DEBI SANKAR BHATTACHARJEE v. IRENE DAVID — 1968 DIGILAW 226 (CAL)

RAMENDRA MOHAN DATTA, J. ( 1 ) THE plaintiff is the owner of the premises No. 9, Khetradas Lane, Calcutta. One Mrs. M. V. D'cruz was the monthly tenant under the plaintiff according to English Calendar at a rent of Rs. 43 per month in respect of two bed-rooms with a bath and privy combined, a kitchen, a covered verandah and a projected verandah on the second floor (north-west side) of the said premises. The said Mrs. M. V. D'cruz, who was an Anglo-Indian, died intestate in England on or about June 14, 1965. Prior to her departure for England she gave power in favour of the defendant's husband, inter alia, in respect of the said tenancy. ( 2 ) THE plaintiff's case is that on her death the power granted by her also came to an end. The plaintiff does not dispute that the defendant is one of the heirs of the deceased being her pre-deceased daughter's daughter under Section 40 of the Indian Succession Act, 1925, but contends that in spite thereto the tenancy right of the deceased could not vest in her nor could she inherit the same without a grant of the letters of administration being made in her favour by the competent Court in respect of such tenancy right. ( 3 ) THE defence is that she was all along occupying the suit premises as the grand-daughter of the said Mrs. M. V. D'cruz and upon the death of the said Mrs. M. V. D'cruz her tenancy right had devolved on to her as one of the heirs of the deceased. She further contends that the other remaining heirs are in England and they have signified their consent in favour of the defendant as regards the tenancy right of the deceased, and on that basis the defendant claims to be the only heir entitled to inherit the said tenancy right. The defendant applied for a certificate from the Administrator-General, inter alia, in respect of the said tenancy under the Administrator-General Act (XLV of 1963) to prove that she was one of the heirs of the deceased, but the Administrator-General could not grant such a certificate in respect of the tenancy right under the said Act although for the purpose of realizing a small sum of Rs. 10 from the Calcutta Electric Supply Corporation, such a certificate was granted under Section 29 of the Act. 10 from the Calcutta Electric Supply Corporation, such a certificate was granted under Section 29 of the Act. ( 4 ) THE following issues were settled at the trial: (1) Is the defendant the successor-in-interest and heir of the deceased under the Indian Succession Act? If so, to what effect? (2) Is the defendant in illegal and wrongful possession of the suit premises as alleged in para 4 of the plaint? (3) Is the defendant a trespasser and is she continuing in wrongful occupation of the suit premises as alleged in para 5 of the plaint? (4) Is the plaintiff entitled to damages or mesne profits as alleged in para 6 of the plaint? (5) To what relief, if any, is the plaintiff entitled? ( 5 ) THE facts being more or less admitted by and on behalf of both the parties neither party chose to call any witness. The brief of documents has by consent been tendered and marked as ex. A herein. ( 6 ) THE plaintiff contends that the said grant of certificate by the Administrator-General was not enough for the defendant to entitle her to continue in possession of the said premises and her occupation had become unlawful and she was no better than a trespasser. Accordingly this suit was filed against the defendant for recovery of possession of the said premises and for mesne profits. ( 7 ) ON behalf of the defendant it has been contended that the tenancy being heritable, upon the death of the said Mrs. M. V. D'cruz, has devolved on to the defendant as the heir of the deceased. Hence there could be no question of applying for further grant of Letters of Administration. It is further contended on behalf of the defendant that the suit as framed is not maintainable because the plaintiff has sued the defendant as trespasser although admittedly the defendant is one of the heirs. Hence the tenancy has vested in the defendant by way of inheritance upon the death of the grand-mother. In any event, she being admittedly one of the heirs of the deceased the tenancy devolved on to her by way of inheritance under the Transfer of Property Act and, as such, in order to evict her a notice to quit was necessary to be served. In any event, she being admittedly one of the heirs of the deceased the tenancy devolved on to her by way of inheritance under the Transfer of Property Act and, as such, in order to evict her a notice to quit was necessary to be served. There is no pleading nor any argument has been advanced as to whether the defendant was an heir within the meaning of the West Bengal Premises Tenancy Act, 1956. ( 8 ) ON behalf of the plaintiff it has been argued that the said deceased being an Anglo-Indian, Pt. VIII of the Indian Succession Act (XXXIX of 1925) would apply. In that part the relevant provisions applicable to this case are as follows: section 211. (1) The executor or administrator, as the case may be, of a deceased person is his legal representative for all purposes, and all the property of the deceased person vests in his as such. (2) When the deceased was a Hindu, Muhammadan, Buddhist, Sikh or Jaina or an exempted person, nothing herein contained shall vest in an executor or administrator and property of the deceased person which would otherwise have passed by survivorship to some other person. Section 212 (1 ). (1) No right to any part of the property of a person who has died intestate can be established in any Court of Justice, unless Letters of Administration have first been granted by a Court of competent jurisdiction. (2) This section shall not apply in the case of the intestacy of a Hindu, Muhammadan, Buddhist, Sikh, Jaina or Indian Christian. Section 216. After any grant of probate or Letters of Administration, no other than the person to whom the same may have been granted shall have power to sue or prosecute any suit, or otherwise act as representative of the deceased, throughout the State in which the same may have been granted, until such probate or Letters of Administration has or have been recalled or revoked. ( 9 ) IN the matters of grant of probate or Letters of Administration the following provisions under Part IX of the Succession Act, 1925, would require consideration: section 220. Letters of Administration entitle the administrator to all rights belonging to the intestate as effectually as if the administration had been granted at the moment after his death. Section 221. ( 9 ) IN the matters of grant of probate or Letters of Administration the following provisions under Part IX of the Succession Act, 1925, would require consideration: section 220. Letters of Administration entitle the administrator to all rights belonging to the intestate as effectually as if the administration had been granted at the moment after his death. Section 221. Letters of Administration do not render valid any intermediate acts of the administrator tending to the diminution or damage of the intestate's estate. Section 269. (1) Until probate is granted of the will of a deceased person, or an administrator of his estate is constituted, the District Judge, within whose jurisdiction any part of the property of the deceased person is situate, is authorized and required to interfere for the protection of such property at the instance of any person claiming to be interested therein, and in all other cases where the Judge considers that the property incurs any risk of loss or damage; and for that purpose, if he thinks fit, to appoint an officer to take and keep possession of the property. (2) This section shall not apply when the deceased is a Hindu, Muhammadan, Buddhist, Sikh or Jaina or an exempted person, nor shall it apply to any part of the property of an Indian Christian who has died intestate. ( 10 ) THE determination of the issues herein would depend on the construction of the aforesaid sections of the Indian Succession Act, 1925. It is not disputed that the aforesaid provisions will be applicable to the facts involved in the instant case. The main question to be considered is as to what would be the position of an intestate Anglo-Indian deceased pending the appointment of the administrator to administer her estate. To be more exact the question for determination would be whether the property, viz. , the tenancy right would vest on the heir-at-law upon the death of the deceased Anglo-Indian who died intestate in between the date of the death and the grant of Letters of Administration. ( 11 ) SUB-SECTION (2) of Section 211 does not make an Anglo-Indian deceased an exempted person. In other words, the case of an intestate Anglo-Indian deceased would attract the provisions of Section 211 (1) of the Indian Succession Act, 1925. ( 11 ) SUB-SECTION (2) of Section 211 does not make an Anglo-Indian deceased an exempted person. In other words, the case of an intestate Anglo-Indian deceased would attract the provisions of Section 211 (1) of the Indian Succession Act, 1925. The words 'for all purposes' would seem to include the purpose of administering the tenancy right as well of the deceased after her death. That sub-section recognizes nobody else excepting the legal representative who would be the administrator in the instant case for the purpose of the vesting of the tenancy right of the deceased. In other words, no heir can have any legal right over any property including the tenancy right which might be left by the deceased Anglo-Indian and the only person who can enjoy such right would be the administrator who would be appointed by the appropriate competent Court. Accordingly, in my opinion, in this case the defendant cannot enjoy any legal right in respect of the tenancy, which is a property left by the deceased, until she obtains the grant of representation from the competent authority. It is well-established that the tenancy right is heritable, i. e. , to say it would devolve on to the heirs. In other words, it has to be ascertained who the heirs-at-law are. The question involved is whether in the case of a person governed by the Indian Succession Act, dying intestate, the their of the deceased can inherit the tenancy right without obtaining the representation of the deceased. ( 12 ) IN my opinion, that is not possible in view of the express provision of Section 211 of the Indian Succession Act, 1925. The position could have been otherwise in the case of persons mentioned in sub-section (2) of Section 211 of the Indian Succession Act, 1925, because in respect of such persons the vesting would have taken place immediately upon the death of the intestate deceased on the heir directly. ( 13 ) SECTION 212 (1) also is on all fours in the case of the said deceased Anglo-Indian. The defendant has been sued as a trespasser. The defendant has to establish her right that she is an heir of the deceased but such right, even though not challenged, would be of no avail unless an until the defendant would obtain Letters of Administration from the Probate Court. The defendant has been sued as a trespasser. The defendant has to establish her right that she is an heir of the deceased but such right, even though not challenged, would be of no avail unless an until the defendant would obtain Letters of Administration from the Probate Court. If the defendant would seek to establish her right to be an heir of the deceased under Section 212 (1) of the Indian Succession Act, 1925, the defendant would be precluded from doing so by taking recourse to the ordinary mode of proving such fact in the suit proceedings to establish her right or claim over the tenancy right left by the deceased. ( 14 ) SECTION 216 deals with the effect of the grant of Letters of Administration and the power of the grantee to act as the only representative of the deceased for all purposes in terms of the grant. The administrator will enjoy such power and position until the estate is fully administered. This Section also contemplates that the intestate deceased's estate will be administered not by the heir as such but by the person in whose favour the grant would be made. ( 15 ) SECTION 220 gives the administrator additional powers which could not have been enjoyed by the administrator under the general principles of law applicable to the position of an administrator. Ordinarily the administrator would derive his powers and right to function from the date of the grant but by virtue of this section his right relates back to the time of the death intestate. This section further contemplates that in respect of any right which might have accrued to the estate of the deceased in between the time of the death of the deceased and the time of the grant, it is only the administrator who would be entitled to enjoy and/or exercise such rights after he assumes the office of the administrator. ( 16 ) SECTION 221 puts a limit on the rights of the administrator to validate the intermediate acts done by the administrator. It is not each and every act of the administrator which would be validated after he obtains the grant, but it is only such intermediate acts which are beneficial to the estate of the intestate and such acts alone would be validated and the rest would remain invalid. It is not each and every act of the administrator which would be validated after he obtains the grant, but it is only such intermediate acts which are beneficial to the estate of the intestate and such acts alone would be validated and the rest would remain invalid. ( 17 ) SECTION 269 of the Indian Succession Act, 1925, also in this connection requires very careful consideration. This section provides for interim measure by which the property of the deceased could be saved from being lost or damaged pending the appointment of the administrator. This interim measure has been provided because the vesting of the property of the deceased governed by the Indian Succession Act, 1925, cannot take place until such administrator is appointed by the Court. This Section further contemplates that a person might be an heir of the deceased but by virtue of his position as such the property of the deceased cannot vest on to him immediately upon the death of the intestate or until his appointment as the administrator. In the case of an Anglo-Indian, even though he is an heir under the Indian Succession Act, 1925, he cannot hold the property until the estate would be required to be administered. He can at best protect the property of the deceased under this provision in his position as a person interested in such property. ( 18 ) IN the light of the above observations I proceed to decide the issues as follows: issue No. 1 : It is not disputed by the plaintiff that the defendant is the daughter's daughter of the said Mrs. M. V. D'cruz, the tenant, since deceased. It is not disputed that the deceased at the time of her death was an Anglo-Indian and, as such, she was governed by the provisions of the Indian Succession Act and further she was not an exempted person within the meaning of Sections 211 and 212 and other like provisions of the said Act. It is admitted that the deceased at the time of her death died intestate leaving behind her a son and a daughter as also other heirs besides the defendant herein. The defendant is one of the heirs of the deceased under Section 40 of the Indian Succession Act, 1925. It is admitted that the deceased at the time of her death died intestate leaving behind her a son and a daughter as also other heirs besides the defendant herein. The defendant is one of the heirs of the deceased under Section 40 of the Indian Succession Act, 1925. Accordingly, there could be no difficulty in coming to the finding that the defendant was and as an heirs of the deceased under the Indian Succession Act. As such heir the defendant is a person interested in the property left by the deceased within the meaning of Section 269 of the said Act. The issue is decided accordingly in the affirmative but the effect of it has to be determined on the basis of my findings in the other issues. Issue No. 2 and 3 : These are the main issues and are connected with each other. On January 6, 1962, before the said Mrs. M. V. D'cruz left for England she executed a general power of attorney in favour of the defendant's husband. By the said power of attorney the defendant's husband was authorized to occupy and to take charge of the said premises on behalf of the said tenant and to pay rent to the landlord. In 1965, the said Mrs. M. V. D'cruz died in England. Upon her death the power came to an end. It is not disputed that the defendant and her husband were residing in the said premises at all material time, and the defendant is still now in occupation of the said portion of the said premises. ( 19 ) UPON being intimated of the death of the tenant the landlord's Solicitor Mr. S. C. Laha wrote to the defendant's lawyer requiring the defendant to take out Letters of Administration for the tenancy right of the deceased tenant and in default thereof he informed the said lawyer that the defendant herein would be treated as a trespasser. On May 4, 1966, the landlord's Solicitor by a registered letter described the defendant as a trespasser in respect of the said tenanted portion occupied by her and called upon hereto vacate the said premises and to deliver up quiet, vacant and peaceful possession to the landlord and in default threatened legal action to recover possession and also claimed mesne profits at the rate of Rs. 3 per diem. 3 per diem. On May 18, 1966, the landlord filed this suit against the defendant describing her as a trespasser and claiming recovery of possession and mesne profits. On June 28, 1966, the defendant filed her written statement and as the heir of the said deceased the defendant claimed to have inherited the said tenancy right left by the deceased tenant and further claimed that no letter of administration was necessary for inheriting the tenancy right which was an immovable property. Thereafter, on or about October 3, 1966, the defendant applied for a certificate from the Administrator-General of West Bengal under the relevant provisions of the said Administrator Generals Act of 1963 by filing an affidavit to that effect. By the said affidavit the defendant also claimed for a certificate that she was entitled to administer the tenancy right of the deceased in respect of flat No. 3 in Block C at No. 9, Khetradas Lane, Calcutta. By the said affidavit the defendant assessed a sum of Rs. 100 as the value of the said tenancy right. It appears that the said Administrator-General issued in her favour a certificate entitling her to administer the estate of the deceased in respect of the recovery of a sum of Rs. 10 being the amount of security money deposited by the deceased and payable to the estate of the deceased by the Calcutta Electric Supply Corporation, Victoria House, Calcutta. The said certificate dated March 23, 1967, however, did not include the tenancy right which was claimed in the said application. ( 20 ) UNDER these circumstances when the matter first came up for hearing the defendant was given an opportunity to take out a representation to the estate of the said deceased in respect of her claim for the tenancy right of the premises in suit. Repeated opportunities were thereafter given to the defendant to apply for and to produce such grant from the appropriate Court and even on the last date of the hearing at the argument stage such opportunity could be availed of if so asked for. The learned Advocate appearing on behalf of the defendant contended that it was not necessary for this client to obtain any such grant in respect of the said tenancy right and, as such, his client was not advised to obtain such grant in her favour. The learned Advocate appearing on behalf of the defendant contended that it was not necessary for this client to obtain any such grant in respect of the said tenancy right and, as such, his client was not advised to obtain such grant in her favour. ( 21 ) AFTER considering Section 211 and Section 212 and the aforesaid other provisions of the Indian Succession Act, I see no reason why such representation was not necessary to be obtained in this case. The tenancy right is undoubtedly a property within the meaning of the said provisions of the Indian Succession Act. Again, it is clearly provided therein that such property cannot vest on anybody else excepting an administrator in case the deceased Anglo-Indian died intestate as was the case here. The defendant has been sued as a trespasser. The defendant seeks to establish her right that she is an heir of the deceased on whom the tenancy right was vested after the death of the tenant. Under Section 212 of the Indian Succession Act she is debarred from establishing such right in any Court without obtaining a grant of the letter of administration. The tenancy right which is a property left by the deceased could not have vested in her as an heir immediately upon the death of the deceased. She could at best be a person interested to succeed in the tenancy right and in that capacity she could take steps under Section 269 of the Indian Succession Act to protect her tenancy right from anybody who might have interested with it until the grant would be made. By doing so she could get an administrator appointed so that such administrator after administering the estate could have the tenancy right vested in her. The language of Sections 211 and 212, read with Section 269, would clearly indicate the same. The language of sec. 212 makes it imperative to take out representations to the estate of the deceased. It is further clear that the tenancy right is a property and the vesting takes place only when the appointment is made and not earlier. The language of Sections 211 and 212, read with Section 269, would clearly indicate the same. The language of sec. 212 makes it imperative to take out representations to the estate of the deceased. It is further clear that the tenancy right is a property and the vesting takes place only when the appointment is made and not earlier. The function of the administrator after he would be so appointed would be to transfer the monthly tenancy right left by the deceased to the proper heir or heirs as on intestacy and such function would be performed by him in course of his administering the estate of the deceased. Until that would be done the landlord would not be in a position to ascertain who would be the proper tenant under the circumstances in a case governed by the Indian Succession Act. ( 22 ) ON behalf of the defendant the case of (1) Musst. Kulwanta Bewa v. Karam Chand Soni, (1938) 43 CWN 4 was cited as an authority for the proposition that in spite of vesting of property on the administrator after the grant of such administration the beneficiaries would be competent to deal with their interest in case of intestacy. That was a case of a Hindu who dies intestate and accordingly that case, in my opinion, will not be a guidance in appreciating the case before me. In the case of a Hindu the vesting would take place immediately on the death of the deceased on the heir under the Hindu Law, but in the case of an Anglo-Indian the nature of vesting of the estate would be in accordance with the said specific provisions of the Indian Succession Act. Accordingly, in my opinion the above case has no application in the facts of the case before me. ( 23 ) ON behalf of the defendant the case of (2) Antony Cruz Gonzolves v. Makis Boopalrayan, (1911) ILR 34 Mad 395 has also been cited. This was a case of an Indian Christian who by the Native Christian Administration Act (VII of 1901) was exempted from the operation of the then Section 190 of the Succession Act (X of 1865) which is the equivalent of the present Section 212 of the Indian Succession Act, 1925. By applying the said Native Christian Administration Act (VII of 1901) this Madras case was decided. By applying the said Native Christian Administration Act (VII of 1901) this Madras case was decided. It was held in that case that the heirs of the Native Christian has the power to deal with their shares in the property of the deceased until the grant of administration, and their transaction in respect of such share would not be made invalid by the subsequent grant. In that case Section 190 of the then Succession Act, which is the equivalent of Section 212 of the present Act, was not applied because by virtue of the passing of the Native Christian Administration Act (VII of 1901) the said provision of the Indian Succession Act could not be applied in the case of Native Christian. Accordingly, the observation made in the said Madras case could not apply in the facts of the present case. ( 24 ) IN the case of (3) Framji Dorabji Ghaswala v. Adarji Dorabji Ghaswala, (1893) ILR 18 Bom 337 the effect of not obtaining the grant of the Letters of Administration was considered in respect of the estate of a deceased Parsi. At the relevant time the then Section 190 of the Succession Act (X of 1865) was applicable in the case of Parsis. Applying the said Section 190 of the said Act (X of 1865), which is the equivalent of Section 212 of the present Act of 925, the Bombay Court dismissed the suit of the plaintiff who did not obtain the Letters of Administration. ( 25 ) UPON those circumstances, the contention made on behalf of the defendant that the tenancy was to be terminated by notice to quit upon the defendant could hold good. If the tenancy did not devolve on to her she could not e entitled to a notice to quit. ( 26 ) THE over-all result is that the defendant in the absence of any such representation in respect of her tenancy right remains a trespasser and is liable to be ejected. Accordingly, issue Nos. 2 and 3 are decided in the affirmative. ( 27 ) IN necessarily follows that the effect of the decision of issue No. 1 is that even though the defendant is a successor-in-interest and an heir of the deceased under the Indian Succession Act yet she cannot establish her right, as such, in respect of the tenancy right left behind by the deceased. ( 27 ) IN necessarily follows that the effect of the decision of issue No. 1 is that even though the defendant is a successor-in-interest and an heir of the deceased under the Indian Succession Act yet she cannot establish her right, as such, in respect of the tenancy right left behind by the deceased. ( 28 ) ISSUE No. 4: In the plaint a sum of Rs. 3 per diem has been claimed as mesne profits from July 29, 1965, until recovery of possession. Calculated on the monthly basis the mesne profits at that rate comes to about Rs. 90 per month. Upto the time of her death the deceased was paying a sum of Rs. 43 per month in respect of her tenancy. In the absence of any further evidence I think the justice of the case would demand that the mesne profits should be allowed at the rate of the said rent, i. e. Rs. 43 per month, in respect of the said tenancy of the said premises and the defendant having been found in wrongful occupation of the said premises is liable to pay such mesne profits to the plaintiff on and from July 29, 1965, until recovery of possession. Issue No. 5: In view of my findings in respect of the other issues herein the plaintiff is entitled to a decree for the recovery of possession of the said portion of the said premises No. 9, Khetradas Lane more fully described in the plaint. The plaintiff is further entitled to mesne profits at the rate of Rs. 43 per month on and from July 29, 1965, as claimed in the plaint until recovery of possession. It is stated that the defendant had all along deposited sums which are equivalent of the rent with the Rent Controller, Calcutta. The plaintiff would be at liberty to withdraw the sums and to appropriate the same in pro tanto satisfaction of the decree for mesne profits. The plaintiff is also entitled to the costs including the assessed costs of the suit. All sums deposited by the defendant with the Registrar to the credit of this suit be withdrawn by the plaintiff's Solicitor and be applied towards the decretal claim in pro tanto satisfaction thereof. The Registrar is directed to pay the said sum accordingly. The Plaintiff entitled for decree.