Uma Roy v. Mehamala Dey — 1988 DIGILAW 198 (CAL)

JUDGMENT L.M. Ghosh, J. 1. F.A. No. 116 of 1983 and F.A. No. 264 of 1984 arise from the same judgment and decree passed by the learned Judge, 13th Bench of the City Civil Court, Calcutta, in Ejectment Suit No. 1412 of 1975. As both the appeals arise from the common judgment and decree, they are being disposed of by one judgment. 2. Admittedly, one Basanta Kumar Das was the tenant in respect of the suit premises under the plaintiff at a monthly rent of Rs. 110/-, according to English Calender Month. The said Basanta Kumar Das died leaving his wife, three daughters and three sons. All of them were originally made parties in the ejectment suit. Ultimately, the names of the defendants 1, 2, 5, 6 and 7 were struck off. So that the matter is now contested only by the defendants 3 and 4, the two daughters of late Basanta Kumar Das. F.A. No.116 of 1983 has been preferred by one daughter, the defendant No.4 in the ejectment suit. F.A. No. 264 of 1984 is at the instance of another daughter, the defendant No.3. 3. The plaintiff has filed the ejectment suit, claiming to be the owner landlord. The grounds set out in the plaint are the grounds of subletting default and reasonable requirement for own use and occupation. It is said that the sons of late Basanta Kumar Das surrendered their tenancy. As regards the ground of subletting, it is averred in the plaint that long before his death, late Basanta Kumar Das, after purchasing his own premises No.27/1G, Nayan Chand Dutta Street, Calcutta, let the suit premises by sub-letting the same in favour of his two sons in law. Chitta Prasad Roy and Arun Saha. They are the husbands of the defendants 4 and 3 respectively Next it is said that the defendants are defaulters since August, 1975. With regard to the ground of reasonable requirement, the plaintiff has stated that the suit premises are required for occupation by herself and the other members of the family. It is said that the eldest daughter of the plaintiff’s son is of marriageable age and it is essential for her to stay in Calcutta to negotiate her marriage. Then it is made out that the plaintiff’s eldest son, Anil Kumar Dey. Is about 42 years old and carries on business in hardware at No.20, Netaji Subahas Road, Calcutta. It is said that the eldest daughter of the plaintiff’s son is of marriageable age and it is essential for her to stay in Calcutta to negotiate her marriage. Then it is made out that the plaintiff’s eldest son, Anil Kumar Dey. Is about 42 years old and carries on business in hardware at No.20, Netaji Subahas Road, Calcutta. According to the plaintiff, due to ill health it is becoming extremely difficult for her son to come to Calcutta every day as a daily passenger from Chinsurah. One of the plaintiff’s grand sons is said to be an employee in some Homoeopathic firm in Calcutta According to the plaintiff. It is difficult for her grandson also to undertake the journey every day from Chinsurah. The plaintiff has claimed that she requires eight rooms for her occupation and occupation by the other members of the family. 4. The two sets of the contesting defendants, the defendant Nos.3 and 4, have filed separate written statements. The defence of the defendant no.3 has been that the plaintiff is not the owner. That Basanta Kumar Das was a tenant has not been denied. But it is a case the defendant no.3 that the sons of Basanta Kumar Das never surrendered their tenancy in favour of the landlady. Instead, it is averred that the sons surrendered in favour of the defendants 3 and 4. Subletting has been emphatically denied. It is claimed that the defendants 3 and 4 are there all along and they are the tenants. Default has also been denied. The plaintiff’s claim of reasonable requirement has also been seriously denied. In the additional written statement filed by the defendant no.3, a ground has been taken that the suit is bad for non joinder of parties after the withdrawal of the suit against the other defendants. Based on that ground is another ground and it is that the ejectment notice is also not valid. 5. The defendant No.4, in her written statement, has also denied that there was any subletting in respect of the suit premises. In paragraphs 2 and 3 of the written statement. It is specifically mentioned that after the demise of the father of the defendants 3 and 4 the other original defendants, namely the defendants 1, 2, 5, 6 and 7 never intermeddled with the tenancy in respect of any part or portion of the suit premises. In paragraphs 2 and 3 of the written statement. It is specifically mentioned that after the demise of the father of the defendants 3 and 4 the other original defendants, namely the defendants 1, 2, 5, 6 and 7 never intermeddled with the tenancy in respect of any part or portion of the suit premises. The defendant no.4 has also denied the other grounds, namely, the ground of default and reasonable requirement with regard to the ground of reasonable requirement, it is spelt out that the plaintiff at all material times and still now is residing at No.70, Kumarpara Road, Chinsurah, Hooghly which is a palatial building having commodus accommodation. on such statement, the plaintiff’s claim for reasonable requirement is resisted. In the additional written statement filed by this defendant No.4 the same matter is mooted out, namely, that the plaintiff does not reasonably require the suit premises. 6. The validity of the notice has been denied, as in the defence of the defendant no.3 The trial court has negatived the grounds of default and subletting. The trial court, however, has accepted the ground of reasonable requirement and has decided the matter in favour of the plaintiff. Finding that the plaintiff’s requirement would be met by partial eviction, the trial court has passed a decree for partial eviction from the first floor of the suit premises. 7. In this appeal, there has been no contention as regards rejection on the grounds of default and subletting. It also appears that these grounds were not pressed during trial. As there is no contention here regarding the grounds of default and subletting. It is unnecessary to go into those questions again. The parties concerned have accepted the findings of the learned court below regarding subletting and default. 8. In this appeal, on behalf of both the appellants. It has been contended that the suit is bad for defect of parties and also that the notice of ejectment is invalid. 9. Mr. Roy, appearing for the appellants in F.A. No. 116 of 1983, has argued that the notice of ejectment, Ext 2, is bad, as it is not addressed to all the tenants. It will appear that this notice is addressed to Sm. Suresh Nandini (wife of Basanta), Sm. Santi Das (daughter), Sm. Gita Saha (daughter and Sm. Uma Roy (daughter) Mr. Roy, appearing for the appellants in F.A. No. 116 of 1983, has argued that the notice of ejectment, Ext 2, is bad, as it is not addressed to all the tenants. It will appear that this notice is addressed to Sm. Suresh Nandini (wife of Basanta), Sm. Santi Das (daughter), Sm. Gita Saha (daughter and Sm. Uma Roy (daughter) Mr. Roy has contended that the sons should have been mentioned in the notice as under the law, the proof of service of notice of eviction on one of the heirs is sufficient to maintain a suit for eviction against the other heirs of the deceased tenant, but the notice of eviction must be addressed in the names of all the other heirs though service of notice on all the heirs need not be proved. In that connection, Mr. Roy has referred to the decision reported in ILR 1966 (1) Calcutta 252. The case reported in 80 CWN 187 has also been referred to by him for the contention that all the heirs of the tenants are necessary parties and ought to be brought on the record. Undoubtedly that is the position of law: all the heirs of the ex-tenant, who have become also tenants, must be brought on the record and the notice must be addressed to all. There is no dispute with the legal position. But the facts of this case are that after the death of Basanta, only the defendants 3 and 4 have accepted the tenancy That will be abundantly clear from a perusal of the respective written statements and some of the documents exhibited. If the other heirs of Basanta have not accepted the tenancy or have abandoned the same, there cannot be any law for compelling them to be tenants. Tenancy, though heritable, cannot be imposed upon one and if one abandons or relinquishes, he ceases to be the tenant. That is a fundamental dictum and there cannot be two opinions. Now as to whether the other heirs continued to be tenants. It well be found that the defendants themselves in their written statements have clearly accepted the position that they are the only tenants. In paragraph 7 of the written statement of the defendant no.3, it is stated that the defendants 5 to 7 surrendered their tenancy rights in favour of the defendants 3 and 4, and not in favour of the plaintiff. In paragraph 7 of the written statement of the defendant no.3, it is stated that the defendants 5 to 7 surrendered their tenancy rights in favour of the defendants 3 and 4, and not in favour of the plaintiff. It makes no practical difference whether the surrender was made to the plaintiff or to the defendants 3 and 4 ; but surrender is accepted by the defendants. If there is surrender or relinquishment, the matter ends there. In paragraph 9 of the written statement of the said defendant No.3, it is elaborated that this defendant and the defendant no.4 have been residing in the suit premises with their respective husbands in their independent rights as tenants Almost to the same effect is the written statement of the defendant No.4. In paragraph 2 of the written statement. It is clearly spelt out that the defendants 1, 2, 5, 6 and 7 have had no occasion to reside in the suit premises. As already referred to before. It is also clearly stated in the same paragraph that the defendants 1, 2, 5, 6 and 7 never Intermeddled with the tenancy in respect of any part or portion of the suit premises. Further elaborating, the defendant No.4 has stated in the same paragraph that the defendants 1, 2, 5, 6 and 7 in writing informed the plaintiff that they were not interested to continue the said tenancy in respect of any part or portion of the suit premises inherited by them. They also surrendered. It is said, in favour of the defendants 3 and 4 with notice to the plaintiff. We do not find how after this clear acceptance of the position that the other heirs of Basanta ceased to be tenants, any submission can be made on their behalf that there are others interested in the tenancy. We feel that the matter is sufficiently concluded by the admissions of the defendants themselves in their written statements. Moreover, there are some correspondences on this point and they also point to the same direction. Ext.1(d) and 1(e) are two letters written by Harish Chandra Das, one of the sons of Basanta, to Chitta Prosad Roy and Arun Saha, the husbands of the defendants 4 and 3 respectively. In those letters, Harish Chandra made it clear that the sons of late Basanta Kumar Das were not interested to continue the tenancy. Mr. Ext.1(d) and 1(e) are two letters written by Harish Chandra Das, one of the sons of Basanta, to Chitta Prosad Roy and Arun Saha, the husbands of the defendants 4 and 3 respectively. In those letters, Harish Chandra made it clear that the sons of late Basanta Kumar Das were not interested to continue the tenancy. Mr. Roy has argued that the letters addressed to husbands would be no avail since the daughters of Basanta are the tenants. This argument has got no practical impact, because the letters at least evince an intention on the part of the sons not to continue the tenancy. The Ext. 1(b), a letter dated 29.8.75 by an advocate of the sons, addressed to the plaintiff, also makes it clear that they had surrendered the tenancy. 10. In view of the state of the records, It is unnecessary to further dwell on the point. Clearly, as the defendants themselves have accepted that position the defendants 3 and 4 are now the only tenants. The notice, Ext. 2, is addressed to them. The service of notice has also been sufficiently proved by Ext. 3 to 3C. The notice is quite valid. The suit is not bad for non-joinder of parties and the notice of ejectment does not also suffer from any infirmity. 11. If the suit is not bad for defect of parties, if the notice of ejectment is otherwise in order and if the grounds of default and subletting do not survive, then we are concerned only with the question of reasonable requirement. 12. Under clause (ff) of sub-s. (1) of s. 13 of the Premises Tenancy Act, a decree for recovery of possession of premises can be passed if the premises are reasonably required by the landlord for his own occupation if he is the owner or for the occupation of any person for whose benefit the premises are held and the landlord or such person is not in possession of any reasonably suitable accommodation. Therefore, the plaintiff in order to succeed on this ground must first prove that she is the owner of the suit premises that she reasonably requires the said premises for her own occupation and occupation by the members of her family and that she is not in possession of any reasonably suitable accommodation. Therefore, the first condition is that the plaintiff must prove her ownership. Therefore, the first condition is that the plaintiff must prove her ownership. On this point, both Mr. Roy and Mr. Samanta, appearing for the appellants in F.A. No. 116 of 1983 and F.A. No.264 of 1984, have seriously contended that the plaintiff is not the owner, as the suit property is the subject matter of a trust deed under which she is merely a beneficiary. At the outset, therefore, it is necessary to examine the trust deed itself Ext. 6. This Ext.6 discloses that one Bhabani Charan Law made a settlement by trust and himself Satish Charan Law and Parbati Charan Law were appointed the trustees. The plaintiff, the daughter of Bhabani Charan Law was the sole beneficiary. It is now accepted that Parbati Chara Law became the sole trustee at the relevant time. The trust deed is dated 24.3.1938. Now Parbati Charan Law being the trustee, the ownership vests in him and not in Meghomala, the plaintiff. Under s.3 of the Indian Trust Act, 1882 a trust is an obligation annexed to the ownership of property and arising out of a confidence reposed in and accepted by the owner, or declared and accepted by him, for the benefit of another, or of another and the owner A mere reading of s.3 itself makes it clear that under the law, the trustee is the legal owner, though there is a confidence reposed in him to carry out the obligation of the trust. It may be worthwhile to point out in this connection that the Indian Law does not make any distinction between legal ownership and equitable ownership and under the Indian Law, there is only one legal owner, that is, the trustee. The trustee, however, is subject to certain obligations as arising from different provisions of the Trust Act Under s.56 of the Trust Act, the beneficiary is entitled to have the intention of the author of the trust specifically executed to the extent of the beneficiary’s interest Sections 57 and 58 also confer some rights on the beneficiary. Still, however, the position is clear that the trustee in law is the legal owner. The trust deed itself, Ext.6 also declared that the trustees were clothed with the legal rights. They were given right to sell away the property, subject to certain conditions. Still, however, the position is clear that the trustee in law is the legal owner. The trust deed itself, Ext.6 also declared that the trustees were clothed with the legal rights. They were given right to sell away the property, subject to certain conditions. Undoubtedly, when the suit was instituted, the plaintiff was not the owner, though the might have had the title to let out the property. In this connection Mr. Roy has referred to certain decisions for the proposition that only the owner landlord can institute the suit. He has first referred to the decision reported in ILR 1969 Cal. (1) 347. It is laid down that according to s.13(1)(f) of the West Bengal Premises Tenancy Act. It is only the landlord who is the owner of the premises who can institute a suit for ejectment of the tenants and not the landlord who is merely the lessee of the disputed premises though for a long time. The case reported in 77 CWN 807 (?) has also been referred to by Mr. Roy. It is observed in that decision that the expression owner in the West Bengal Premises Tenancy Act refers to the person in whom title vests Last of all. Mr. Roy has also cited the decision, reported in AIR 1975 SC 1146 . It is laid down there that the landlord has to prove that he is the owner and that he is not possessed of any other reasonably suitable accommodation. 13. That is indubitably the legal position : a landlord unless he is the owner landlord, cannot maintain a suit for eviction on the ground set out in Clause (ff) of sub-s. (1) of s.13 of the Premises Tenancy Act. Any lesser degree of title inherent in the landlord would not be sufficient for coming within the ambit of clause (ff). If that be the position, the plaintiff was not originally competent to maintain the suit on the ground of reasonable requirement with the meaning of clause (ff) of sub-s. (1) of s.13 of the West Bengal Premises Tenancy Act. The suit would have destined to fall on that ground, but for a subsequent event. In this case, the plaintiff has placed a piece of additional evidence, High Court Ext. The suit would have destined to fall on that ground, but for a subsequent event. In this case, the plaintiff has placed a piece of additional evidence, High Court Ext. No. 1 That document evidences that on the 15th of June, 1982, Parbati Charan Law transferred all the interests in the suit property in favour of the plaintiff. That transfer was executed in pursuance of an order of this court in a matter filed under ss.34 and 36 of the Indian Trust Act. So whatever might have been the position earlier, from 15.6.82, the plaintiff is the full owner. Ordinarily, the court decides the issue on the basis of the cause subsisting on the date of the filing of the suit. But the court also often takes note of subsequent events in order to shorten litigation and to do complete justice between the parties once for all. It is to be noted that this High Court Ext. I was executed before passing of the decree by the Court below. In any case, as appeal is the continuation of the suit, during the subsistence of the suit there has been a transfer to the plaintiff clothing her with all the legal rights of ownership in respect of the suit property. Not to take note of the subsequent events and to insist rigidly on the position on the date of the suit, would be too technical and not in accordance with the realities of the case Mr. Chatterjee, the learned Advocate, appearing for the respondent landlord has in fact submitted that the plaintiff had some sort of ownership at the inception and by now, she has become the full owner Such being the position, according to Mr. Chatterjee, it would be unrealistic to refuse to take notice of the subsequent event. The first branch of Mr. Chatterjee’s argument that the plaintiff had some sort of ownership at the inception is not acceptable, because as shown earlier, under the Indian Law, there is only one legal owner, namely, the trustee. That, however, does not impali his second branch of argument. Whatever might have been the imperfection at the outset, when everything has been perfected by now, it would be meaningless to refuse to take notice of that. In the case of R.N. Gupta Vs. Second Additional District Judge, Lucknow & Ors. That, however, does not impali his second branch of argument. Whatever might have been the imperfection at the outset, when everything has been perfected by now, it would be meaningless to refuse to take notice of that. In the case of R.N. Gupta Vs. Second Additional District Judge, Lucknow & Ors. ( AIR 1977 All 431 ), the learned Single Judge of that court in fact took notice of the subsequent events for accepting the validity of a petition for ejectment. There, when the petition of ejectment was filed under s.21 of the U.P. Act, the petitioner was not the full owner. He had some interest only under some hire-purchase agreement. Later on, before the disposal of the matter, the petitioner in that case became the full owner. His Lordship, relying on the Supreme Court’s decision, took notice of the subsequent events and allowed the petitioner the relief on the basis of the change of circumstances in AIR 1973 SC 171 , it was observed that the court takes notice of subsequent events to shorten litigation, to preserve rights of both the parties and to subserve the ends of justice. In another case reported in AIR 1975 SC 1409 also relied upon by the learned Judge of the Allahabad High Court, It was observed that the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accordance with the current realities, the court can, and in many cases must, take cautions and cognizance of events and developments subsequent to the institution of the proceedings provided the rules of fairness of both sides are scrupulously obeyed, must be affirmed. On the basis of High Court Ext. I and the principle enunciated above, we are of the opinion that the plaintiff, having become the full owner of the property, can maintain the suit on the ground of reasonable requirement, although initially she was not the full owner. That is to say, we accept the plaintiff’s case of ownership for the purpose of the maintainability of her cause on the ground of reasonable requirement. 14. The plaintiff, having subsequently become the owner of the property, can get a decree for eviction provided she can prove her reasonable requirement. On the point of reasonable requirement, the evidence is almost one sided P.W.2 is the plaintiff herself. 14. The plaintiff, having subsequently become the owner of the property, can get a decree for eviction provided she can prove her reasonable requirement. On the point of reasonable requirement, the evidence is almost one sided P.W.2 is the plaintiff herself. She has stated that she has one son Anil Kumar Dey, who carries business in Calcutta, and also a grand son Arabinda, who works in a Homoeopathy dispensary at Bow bazar, Calcutta Besides she gives an account of the other members of this family, two grand-daughter aged 9 and 12 respectively. There is another grandson, aged 13 who reads in a Chinsurah School. As regards the position of her son, during cross examinations he has elaborated that he is an order supplier for 15/16 years and he has his office at 20, Netaji Subhas Road, Calcutta, P.W.4 is Anil Kumar Dey, the son of the plaintiff. He has affirmed that he is an order supplier from his Office at 20, Netaji Subhas Road, and he pays Rs.80/- as rent per month for the officer room Ext. 9 is a receipt Exts. 10 to 10(b) are some of the order forms in connection with his business. This witness who was aged 42 on 27.11.81, has to undertake journey from Chinsurah all the time, He is well advanced in age and it is quite natural that his energy will be falling through the passage of time. It is not fair to compel such a person to under take journey from a distant place for all time. Similarly, P.W. 3, the grandson of the plaintiff has affirmed that he workers as a clerk at Metropolitan Homoeopathy College Hospital at 77, Bipin Bihari Ganguly Street. He complains that everyday he has to undertake the journey from Chinsurah to Calcutta with all the hazards of daily interruption of train services and others. He has also complained that he suffers both physically and mentally. Here also it is not fair to compel him to undertake the journey for ever for earning his livelihood. As against that the two defendants have merely come out with the bare statements that the plaintiff does not require the suit premises. The evidence on the side of the plaintiff must prevail. The attempt to show that the plaintiff has some interest in some other premises, No. 223/1, Cornwallis Street has also been found to be ineffective. As against that the two defendants have merely come out with the bare statements that the plaintiff does not require the suit premises. The evidence on the side of the plaintiff must prevail. The attempt to show that the plaintiff has some interest in some other premises, No. 223/1, Cornwallis Street has also been found to be ineffective. P.W.4 has categorically stated that Parbati Babu is the owner of the property. P.W. 2 the plaintiff herself has also clearly stated that the house on the Cornwallis Street belongs to her brother, who got it from her father. This evidence on the plaintiff’s side has not been repelled by any evidence on the defence side. There is no material for coming to the conclusion that the plaintiff is the owner of the house on the Cornwallis Street. If that is the position, the plaintiff has no other property in Calcutta wherefrom her son and grandson can follow their pursuits of life. No doubt she has a house in Chinsurah, wherein now the is residing along with other member of the family, but that cannot be said to be reasonably suitable accommodation in view of the difficulties and hazards discussed before. Therefore, the plaintiff is not in possession of any reasonably suitable accommodation. The physical requirement of the plaintiff has clearly been proved. The plaintiff requires at least one room for herself, one room for her son and his family. One room for her grown up grandson and one room to be used as parlour. Besides, there are other members of the family. The first floor, for which the learned Court below has granted a partial decree for eviction has only four rooms. Therefore the minimum requirement of the plaintiff being for 4 rooms the decree for partial eviction from the first floor, as passed by the learned court below is quite reasonable and is to be maintained. The plaintiff having proved her case of reasonable requirement, the judgment and the decree of the learned court below must be maintained, subject to certain modification. From the Commissioner’s report Ext.4, it appears that on the roof, there is one room, used for storing purposes. The plaintiff having proved her case of reasonable requirement, the judgment and the decree of the learned court below must be maintained, subject to certain modification. From the Commissioner’s report Ext.4, it appears that on the roof, there is one room, used for storing purposes. It has been found that the plaintiff has got other members of her family and her requirement for one more store room is quite reasonable Moreover, to maintain contiguity and minimum disruption, it is quite expedient that this room will go to the plaintiff. That is to say, the judgment and decree of the learned court below in the first floor is to be maintained and in addition the plaintiff is to get the small room on the roof. There is a passage on the ground floor for having access to the staircase leading to the first floor. The plaintiff will have to use that passage for having access to the staircase for going to the first floor. The plaintiff must have use of the passage. That is to say, passage leading to the staircase will remain a common passage Subject to these modifications, the judgment and the decree of the learned court below must be maintained. Now under s.13(4) of the Premises Tenancy Act whenever a decree for partial eviction is passed, the court has to determine the proportionate rent after obtaining the consent of the tenants. In this case, both Mr. Roy and Mr. Samanta on behalf of the two appellants have submitted that their clients, that is the appellants, consent to a decree for partial eviction. The learned court below has not fixed any proportionate rent which is incumbent. The rent of the entire premises is Rs.110/- per month. We feel the proportionate rent is to be fixed at Rs.55/- per month for the ground floor. 15. The appeals are dismissed. The judgment and the decree of the learned court below are affirmed, subject to the modifications as noted. The plaintiff do get a decree for eviction in respect of the first floor and the room on the roof of the premises. The defendants appellants do vacate the first floor and the room on the roof within 21st of August, 1988. The judgment and the decree of the learned court below are affirmed, subject to the modifications as noted. The plaintiff do get a decree for eviction in respect of the first floor and the room on the roof of the premises. The defendants appellants do vacate the first floor and the room on the roof within 21st of August, 1988. The proportionate rent of Rs.55/- per month for the ground floor in which the appellants are allowed to continue to possess, will take effect from the date they vacate the portions described before. In case the appellants do not vacate the portion as ordered hereby the date fixed, the plaintiff would be entitled to obtain recovery of possession by execution of decree. The passage of the ground floor for access to the staircase leading to the first floor will remain the common passage of both the parties. We make no order for costs of this proceeding that is for these appeals. Sankari Prasad Das Ghosh, J: I agree Appeals dismissed.