KAMALADEBI MUKHERJEE v. ARUN DASGUPTA — 1993 DIGILAW 6 (CAL)

J. N. HORE, J. ( 1 ) -THIS second appeal by the plaintiffs is directed against the judgment and decree passed by the learned Additional District Judge, 1st Court, Alipore in Title Appeal No. 161 of 1990 reversing those passed by the learned Munsif, 4th Court, Alipore in Title Suit No. 227 of 1987. ( 2 ) THE plaintiff-appellants instituted the said suit against the defendant-respondents for eviction from the suit premises contending inter alia that plaintiff No. 2 is the owner of the house being the middle block of Premises No. 186, Harish Mukherjee Road renumbered as 1868 Harish Mukherjee Road in the name of his wife plaintiff No. 1. The defendants and other two sisters were joint-tenants under the plaintiff in respect of the entire first floor of Premises No. 186, Harish Mukherjee Road. Defendants are defaulters in payment of rent. Plaintiff No. 2 reasonably requires the suit premises for his own use and occupation and the use and occupation of the members of his family. The plaintiffs filed the suit after notice to quit upon the defendants through their Advocate calling upon them to quit and vacate the suit premises. The defendants received the notice but did not vacate the suit-premises. ( 3 ) THE defendants contested the suit by filing a written statement in which it was pleaded inter alia that the suit was bad for non-joinder and mis-joinder of parties as plaintiff No. 2 was unnecessarily impleaded as party and Suit. Rita Dasgupta and Sort. Madhumita Dasgupta was have interest in the tenancy have not been impleaded. The defendants challenged the validity of the notice and maintainability of the suit. It was also denied that the plaintiff reasonably required the suit premises for his own use and occupation. ( 4 ) UPON a consideration of evidence on record the learned Munsif has held that Rita Dasgupta and Madhumita Dasgupta, two other daughters of the original tenant Amulya Dasgupta, since deceased, have no subsisting interest in the tenancy and are not, therefore, necessary parties in this suit. The notice is accordingly good and the suit is maintainable. The ground of default was not pressed at the time of trial. The notice is accordingly good and the suit is maintainable. The ground of default was not pressed at the time of trial. The learned Munsif has held that the plaintiff No. 2 reasonably requires the suit premises for his own use and occupation and for the use and occupation for the members of his family and that the present accommodation of the plaintiff is quite insufficient. He has accordingly passed a decree for ejectment against the defendants. On appeal by the defendants the learned lower Appellate Court has held that Rita Dasgupta and Madhumita Dasgupta have not surrendered or relinquished the tenancy right and as they have subsisting right in the tenancy the notice being not addressed to them is bad in law. On that ground alone the lower Appellate Court allowed the appeal and set aside the judgment and decree of the Trial Court. The lower Appellate Court has not recorded any finding on the alleged reasonable requirement of the plaintiffs for their own use and occupation. Being aggrieved, the plaintiffs have preferred the present appeal. ( 5 ) MR. Roy Chaudhury, learned Advocate for the appellants has contended that a suit in respect of the joint tenancy by issuing a notice determining the tenancy to only some of the heirs of the original tenants and impleading only such heirs and leaving aside the other heirs is maintainable because the joint tenancy of the heirs of a deceased tenant is represented by one of the heirs who is also one of the joint tenants. In support of his contention be has referred to a Division Bench decision of this Court in the case of Smt. Sumilita Bhattacharjee and another v. Smt. Nila Chatterjee, 1989 (2) CLJ 351 . The further contention of Mr. Roy Chaudhury is that Rita and Madhumita categorically and in unambiguous terms disclaimed any tenancy right in the suit premises before the High Court in a previous proceeding between the parties and as such the lower Appellate Court has committed error in finding that they are still tenants. As the said two sisters have no subsisting interest in the tenancy the notice is good and the suit is maintainable. As the said two sisters have no subsisting interest in the tenancy the notice is good and the suit is maintainable. ( 6 ) IT is now well-settled that on the death of the original tenant, subject to any provision to the contrary either negativing or limiting the succession, the tenancy right devolves on the heirs of the deceased tenant. It has been held by the Supreme Court in H. C. Pandey v. G. C. Paul, AIR 1989 Supreme Court 1470 that on the death of the original tenant the heirs succeed to the tenancy as joint tenants. The incidence of the tenancy are the same as those enjoyed by the original tenant. It is a single tenancy which devolves on the heirs. There is no division of the premises or of the rent payable therefore. That is the position as between the landlord and the heirs of the deceased tenant. In other words, the heirs succeed to tenancy as joint tenants. Therefore, when on the death of the original tenant the tenancy rights devolved upon the sons, daughters and wife of the original tenant and the notice terminating tenancy under section 106 was addressed to and served upon one of the sons of the original tenant who paid rent on behalf of an and acted on behalf of all the original tenants the notice only to one of the joint tenants was held to be sufficient. The Supreme Court overruled the decision of the Allahabad High Court reported in AIR 1977 Allahabad 38 wherein it was held that the heirs of the deceased tenant succeeded as tenants-in-common. Though the case relates to the validity of the notice issued to one of the joint tenants, the Supreme Court affirmed and restored the decree for eviction of the first Appellate Court, though other joint tenants were not impleaded thereby suggesting that such a suit is maintainable. ( 7 ) RELYING on this decision, a Division Bench of this Court has held in the case of Smt. Sumilita Bhattacharjee (supra) that on death of Aswini, the original contractual tenant, his legal heirs began to hold that tenancy as joint tenants. ( 7 ) RELYING on this decision, a Division Bench of this Court has held in the case of Smt. Sumilita Bhattacharjee (supra) that on death of Aswini, the original contractual tenant, his legal heirs began to hold that tenancy as joint tenants. A suit in respect of the joint tenancy by issuing notice by determining the tenancy to only one of the heirs of the original tenant and impleading only one such heir and leaving aside the other heirs is maintainable because the joint tenancy of the heirs of a deceased tenant is represented by one of the heirs who is also one of the joint tenants. In that case, the landlords sued for eviction two of the heirs of the deceased contractual monthly tenant. Facts disclosed that after the death of the original tenant, these two heirs wrote to the landlord intimating that they inherited the tenancy and they requested the landlord to issue rent receipts to them. The landlord accepted them as tenants. Other heirs never exercised the right of tenancy. Repelling the contention that other heirs were necessary parties and upholding the decree for eviction, the learned Judges observed "the heritable tenancy right may be accepted or abandoned or relinquished by the heirs of the original tenant, such tenancy right may be surrendered either expressly or by conduct of the parties". In the facts of that case the other alleged heirs of the original contractual tenant were held to have relinquished and/or abandoned their heritable right in the joint tenancy. ( 8 ) IN Textile Association (India) Bombay Unit v. Balmohan Gonad Kurup and another, AIR 1990 SC 2053 the Supreme Court distinguished H. C. Pandey's case (supra ). In that case the original tenant died leaving his widow, two sons and daughters. The landlord sued the mother and a son for eviction on the ground of reasonable requirement and default in payment of rent and the suit was decreed ex. parte for default in payment of rent. The other son then instituted a suit for a declaration that he was one of the tenants and the decree was not binding on him. The finding was that the said son was as much a tenant as the mother and the other brothers. parte for default in payment of rent. The other son then instituted a suit for a declaration that he was one of the tenants and the decree was not binding on him. The finding was that the said son was as much a tenant as the mother and the other brothers. That being the position the ex-parte decree for eviction obtained against hi, mother and brother without impleading him in that suit was set aside by the Supreme Court. The Supreme Court has observed that it is not sufficient as the Courts below have said that the decree was not binding upon the respondents. That decree cannot be kept alive against two other tenant, and possession of the premises could be exclusively given to the respondent. The respondent cannot be put into exclusive possession of the premises since his mother and brother were also equally entitled to. The ex parte decree for eviction was, therefore, set aside and the petitioner was directed to be impleaded as a party in that suit which would be decided afresh. ( 9 ) THE present case stands on a much stronger footing than H. C. Pandey's case and Sumilita Bhattacharjee's case (supra) and n is also clearly distinguishable from the case of Textile Association (India) Bombay Unit (supra ). In H. C. Pandey's case one of the sons of the original tenant on whom alone the notice under section 106 was served and the notice was not addressed to other heirs, paid rent on behalf of all and acted on behalf of all the heirs of the original tenant. In Sumilita Bharacharjee's case, the two heirs of the original tenant against whom the suit for eviction was instituted, wrote to the landlord intimating that they inherited the tenancy and they requested the landlord to issue rent receipts to them and the landlord accepted them as tenants and other heirs of the deceased tenant never exercised the right of tenancy. In such circumstances it was held that other heirs relinquished and/or abandoned their heritable right in the joint tenancy. In the case of Textile Association (India) Bombay Unit there was a clear finding that the heir of the deceased tenant who was not impleaded in the suit had a subsisting right in the tenancy and way therefore, a necessary party. In such circumstances it was held that other heirs relinquished and/or abandoned their heritable right in the joint tenancy. In the case of Textile Association (India) Bombay Unit there was a clear finding that the heir of the deceased tenant who was not impleaded in the suit had a subsisting right in the tenancy and way therefore, a necessary party. In the instant case it appears that Rita and Madhumita in clear and unambiguous terms abandoned and/or relinquished their tenancy right in the suit premises. The plaintiffs after serving a notice to quit through their Advocate on 23. 12. 82 previously filed an application under section 298 of the West Bengal Premises Tenancy Act for eviction of the defendants and two other joint tenants Rita and Madhumita. Both Rita and Madhumita were impleaded in that proceeding. The Rent Controller dismissed the said application holding that it was not maintainable. The plaintiffs then moved the Hon'ble High Court, Calcutta against the decision of the Rent Controller. In the High Court the said two sisters Rita and Madhumita filed an application renouncing their rights and interests in the suit premises as joint tenants and submitted that they should not be impleaded in any future proceeding regarding the disputed tenancy. It was stated that after marriage they have been living with their respective husbands and never resided in the suit premises and they have no subsisting interest in the tenancy of their father. The lower Appellate Court reversing the finding of the trial Court has held that Rita and Madhumita have not relinquished the tenancy on the ground that the affidavit filed before the high Court was sworn by husband of Rita Dasgupta , Sri Manish Mazumdar. As the affidavit was not filed by Rita and Madhumita it cannot be said that they relinquished the tenancy. Mr. Banerjee, learned Advocate appearing on behalf of the respondents has contended that the affidavit per se is not admissible in evidence. The lower Appellate Court has failed to notice that this is not an independent affidavit sworn by husband of Rita Dasgupta which may not be binding on Rita and Madhumita or which by itself may not be admissible in evidence as contended by Mr. Banerjee. The undisputed fact is that Rita and Madhumita who were opposite party Nos. The lower Appellate Court has failed to notice that this is not an independent affidavit sworn by husband of Rita Dasgupta which may not be binding on Rita and Madhumita or which by itself may not be admissible in evidence as contended by Mr. Banerjee. The undisputed fact is that Rita and Madhumita who were opposite party Nos. 6 and 7 in that proceeding filed an application through their authorised Advocate renouncing their interest in the disputed tenancy. The certified copy of the judgment shows that this point was urged by the learned Advocate on behalf of O. P. No. 6 and 7 before the Court. After hearing the parties the Court observed that the question whether they are necessary parties was left open. The affidavit was sworn in support of the statements in the application. Any competent person conversant with the facts may swear an affidavit in support of the application. There cannot, therefore, be any doubt that in the previous proceeding between the parties Rita and Madhumita by a written application before this Court renounced their right in the tenancy. They insisted that they should not be impleaded in any future proceeding relating to the disputed tenancy as they were not necessary parties. In paragraph 3 of the plaint these facts have been specifically pleaded. While dealing with the averments made in paragraph 3, the defendants have stated in paragraph 10 that these statements are matter of record. There is no allegation that any fraud was practiced upon the said O. P. No. 6 and 7 and that the petition was filed without their knowledge and consent. Mr. Banerjee has contended that the plaintiffs opposed that application and they cannot turn round and say that Rita and Madhumita are not necessary patties. I am not impressed by this contention. The plaintiffs impleaded both Rita and Madhumita in the previous proceeding and though they might have opposed the application at that time nothing prevented the plaintiff-landlords from accepting the relinquishment or surrender. That was entirely a matter between the plaintiffs and Rita and Madhumita. In view of the express and specific relinquishment of their tenancy right and insistence that they should not be impleaded in any future proceeding, it was quite natural on behalf of the plaintiffs not to impleaded them in the present proceeding. That was entirely a matter between the plaintiffs and Rita and Madhumita. In view of the express and specific relinquishment of their tenancy right and insistence that they should not be impleaded in any future proceeding, it was quite natural on behalf of the plaintiffs not to impleaded them in the present proceeding. The Trial Court has, therefore, correctly held that Rita and Madhumita are no longer tenants and the finding was disturbed by the lower Appellate Court upon a mis-conception and misregarding of the fact, and circumstances of the case and on treating the application of Rita and Madhumita filed before the High Court merely as a piece of affidavit. It must, therefore, be held that the notice is valid and the suit is maintainable. ( 10 ) THE case is pretty old and I am not inclined to send it back to the lower Appellate Court for a decision on the point of the alleged reasonable requirement of the plaintiff for his own use and occupation. The trial Court upon consideration of the requirement of the plaintiffs and the existing accommodation available to the plaintiffs has held that the plaintiffs reasonably require the entire suit premises for their own use and occupation. I have perused the evidence and upon a consideration of the facts and circumstances of the case I am of the opinion that the plaintiff require at least three more rooms for their own use and occupation. Plaintiffs' family consists of the plaintiffs, their son who is a doctor and a permanent maid-servant. Two daughters of the plaintiffs are married and they are living with their respective husbands and children at their matrimonial homes. Plaintiffs son is a doctor who wants to start private practice. Apart from a bedroom he requires at least one room for his chamber. Another room for the patients may not be necessary at the beginning of the practice. At any rate, the covered passage may serve that purpose. Plaintiff Nos. 1 and 2 require one bedroom. They also require one dining-cum-drawing room, one kitchen and one guest room which may also be used by the married daughters on their occasional visits to the plaintiffs house. The plaintiffs have no installed deity and a separate Thakurghar is not required. The bed room of the plaintiffs or the covered corridor may be used as Thakurghar also. They also require one dining-cum-drawing room, one kitchen and one guest room which may also be used by the married daughters on their occasional visits to the plaintiffs house. The plaintiffs have no installed deity and a separate Thakurghar is not required. The bed room of the plaintiffs or the covered corridor may be used as Thakurghar also. So the plaintiffs reasonably require at least six rooms including a kitchen. At present they arc possessed of three rooms only one of which is used as a kitchen. Apart from bath-cum-privy there is one covered corridor and one terrace. The Commissioner's report shows that the covered corridor 3' 9"x24' 3" is used as passage for ingress and outgress and the terrace is open to sky. So the corridor and terrace cannot be used for any of the purposes aforesaid. The present accommodation of the plaintiffs is palpably quite insufficient and they reasonably require at least three more rooms. The defendant's tenancy comprises four rooms. Mr. Banerjee has submitted with instructions that his client is not willing to partial eviction. The plaintiffs are, therefore, entitled to a decree for eviction in respect of the entire suit premises. ( 11 ) IN the result, the appeal is allowed and the judgement and decree of the lower Appellate Court are set aside and those of the trial Court arc restored. I make no order as to costs in this appeal. The defendants are allowed time to vacate the suit premises till 31. 3. 93 failing which the plaintiffs would be at liberty to put the decree into execution. Appeal allowed.