Research › Browse › Judgment

Patna High Court · body

1974 DIGILAW 214 (PAT)

Bibha Ray v. Hirendra Chandra Dutta

1974-11-11

HARI LAL AGRAWAL

body1974
JUDGMENT : 1. The petitioners are the heirs and legal representatives having been substituted on the death of the original defendant and have moved this Court in its revisional jurisdiction against an ORDER :passed against them under Section 11 A of the Bihar Buildings (Lease, Rent and Eviction) Control Act (hereinafter referred to as the Act). 2. The plaintiff-opposite party filed a title suit on 2.1.1973 for the eviction of the original defendant from the suit premises on the ground of default in payment of rent and also for recovery of a sum of Rs.750,00 as arrears of house rent, after having earlier determined the tenancy by serving a notice under Section 106 of the Transfer of Property Act. On 26.6.1973, the original defendant died and the present petitioners were substituted in his place and they filed a separate written statement. Immediately thereafter the plaintiff made an application under Section 11A of the Act for a direction to the petitioners to deposit the arrears of rent from September 1972 and the current and future rents at the rate of Rs. 250.00 per month. The petitioners in their re-joinder objected to the prayer of the plaintiff on the ground inter alia that there was no relationship of landlord and tenant between the parties. The rate of rent was also challenged. The learned Munsif by the impugned ORDER :allowed the prayer of the plaintiff and directed the petitioners to deposit arrears of rent from the month of September 1972 to April 1974 as also future rents by the 15th day of each following month at the rate of Rs. 250-00. While passing the impugned ORDER :, the learned Munsif relied upon a petition filed under Section 20 of the Act by the petitioners themselves on 13.6.1973 in the Court of the House Controller for the prosecution of the plaintiff under the said provision in which they had admitted themselves to be the tenants under the plaintiff. The learned Munsif, therefore, took the view that the defendants having admitted the relationship of landlord and tenant, were bound by the said admission and they were liable to suffer an ORDER :under Section 11 A of the Act. The finding regarding the rate of rent is based upon certain cheques which were issued by the original defendant in favour of the plaintiff. 3. The finding regarding the rate of rent is based upon certain cheques which were issued by the original defendant in favour of the plaintiff. 3. In this Court, relying upon the decision of the Supreme Court in the case of (1) J.C. Chatterjee and others V. Shri Sri Krishan Tandon and another (A.I.R. 1972 Supreme Court 2526). counsel for the petitioners contended that the tenancy of the original defendant having been terminated under the provision of Section 106 of the Transfer of Property Act before the institution of the suit, the status of the original defendant became only that of a statutory tenant and the petitioners who were brought on the record as his heirs and legal representatives, could not become tenants, and as such there could be no direction against them under Section 11 A of the Act, inasmuch as such a direction could be given to a tenant. This contention cannot be disputed and is well supported by the decision of the Supreme Court. Mr. J.C. Sinha appearing for the plaintiff-opposite party, however, contended that the petitioners themselves had been remitting rent at the rate of Rs. 125.00 per month to the plaintiff and, therefore, a fresh tenancy had come into existence between the plaintiff, on the one hand and the petitioner, on the other. Learned counsel, however, had to admit that none of the remittances made by the petitioners was accepted by the plaintiff. It is, therefore, obvious that in the absence of acceptance of any rent by the plaintiff landlord sent by the defendants petitioners, there was no attornment by them. It cannot be disputed that in the absence of an attornment by a landlord, there can not be creation of any tenancy by him. 4. Mr. Sinha then strongly submitted that the contention of the petitioners was barred by the principles of estoppel by conduct and that having taken a position before the House Controller admitting their status that of tenants, they cannot take a contrary stand in the suit i.e. they cannot be permitted to approbate and re-probate. Counsel also cited some authorities in support of this proposition. The principle as such cannot be disputed but, in my view, this principle has no application to the present case. Counsel also cited some authorities in support of this proposition. The principle as such cannot be disputed but, in my view, this principle has no application to the present case. The said petition under Section 20 of the Act before the House Controller was made by the petitioner as already stated above, on 13.6.1973, as is stated in paragraph 3 of the impugned ORDER :, whereas the original defendant died on 26.6.1973. It is plain, therefore, that on 13.6.1973, during the lifetime of their ancestor, i.e., the original defendant the petitioners had no locus standi, much less, the capacity of tenants to file any petition before the House Controller under any provision of the Act. The notice under Section 106 of the Transfer of Property Act in this case was served upon the original defendant on or about the 12th November, 1972 determining his tenancy on the expiry of the month of November, 1972. A person remaining in occupation of premises let out to him after the determination of expiry of the period of tenancy becomes simply a “statutory tenant” and ceases to be a tenant at all, and has a mere protection of the statute that he cannot be turned out so long as he pays the rent and performs other conditions of the tenancy. The right to remain in possession after the determination of the tenancy is entirely personal and is not capable of transfer, assignment or devolution on his death. This principle is fully supported by the J.C. Chatterjee's Case (supra) already referred to. It is, therefore, manifest that on the 13th June, 1973, even the original defendant could not have made a petition before the House Controller under any of the provisions of the capacity of being a tenant, much less, the petitioners, when the original defendants was still alive. The interest, if any that devolved upon the petitioners is claimed by them only on the death of the original defendant, i.e., on the 26th June, 1973. Under the law, there is a clear bar on devolution of any interest on the heirs and legal representatives of a deceased statutory tenant. The personal right comes to an automatic end on his death, and the law precluded devolution of any such right on the petitioners after the death of the statutory tenant, namely, the original defendant, their ancestor. Under the law, there is a clear bar on devolution of any interest on the heirs and legal representatives of a deceased statutory tenant. The personal right comes to an automatic end on his death, and the law precluded devolution of any such right on the petitioners after the death of the statutory tenant, namely, the original defendant, their ancestor. In my JUDGMENT :, the position is very clear, namely, that under the law nothing devolved upon the petitioners even after the death of the original defendant on 26.6.1973. It is also well established that there is no estoppel against statute and, therefore, even if the petitioners would have taken such a step after the death of the original defendant under a misapprehension of inheritance of the right of the deceased, that being entirely misconceived would not have stood in their way to dis-entitle the plaintiff to advance the plea of estoppel as there is no estoppel against statute. If the law debarred the petitioners to claim any right or status of their ancestor, their erroneous assumption and making any admission in that regard would not by itself dis-entitle them to take a different attitude in a subsequent proceeding. 5. The learned Munsif, therefore, committed an apparent error of jurisdiction in passing the impugned ORDER :on the ground that the petitioners could not agitate the question of relationship of landlord and tenant between the parties on account of the case filed by them before the House Controller. 6. I may also indicate two other infirmities in the impugned ORDER :. The suit being instituted on 2.1.1973, there could be no direction for payment of any arrear of rent for the period prior to that date in view of the recent Full Bench decision of this Court in the case of (2) Ram Nandan Sharma alias Ram Nandan Lohar V. Mosst. Maya Devi and others (1974 P.L.J.R. 584-1974 Bar Counsel Journal 818) to the effect that the expression "arrears of rent" occurring in Section 11A of the Act must be interpreted to mean arrears of rent falling due during the pendency of the suit. Secondly, the liability of the petitioners whatsoever arose only after the death of the original defendant, and not prior to 26.6.1973 and whatever interest that devolved upon them must be thereafter. Secondly, the liability of the petitioners whatsoever arose only after the death of the original defendant, and not prior to 26.6.1973 and whatever interest that devolved upon them must be thereafter. Therefore, there could be no direction to the petitioners to any payment prior to the said date. Since, however, the whole of the impugned ORDER :has been found to be without jurisdiction, there is no necessity to elaborately discuss these two questions and record a concluded opinion in these regards as this application must be allowed on the first ground alone. 7. I would, accordingly, allow this application and set aside the ORDER :of the court below. In the circumstances of the case, however, I shall make no ORDER :as to costs. Application allowed