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2000 DIGILAW 658 (CAL)

Taparindra Nath Tagore v. Anima Biswas

2000-12-21

RANJAN KUMAR MAZUMDAR

body2000
Judgment 1. The instant Second Appeal is at the instance of defendant-appellant and is directed against the judgment and order passed on 3.9.87 by the learned Additional District Judge, 9th Court. Alipore, 24-Pacganas in Title Appeal No. 484 of 1986 by which the said learned First Appellate Court set aside the judgment and. order dated 30.4.86 passed by the learned Munsiff, 1st Court, Sealdah in Title Suit No. 627 of 1976. 2. The case of the defendant-appellant in this Second Appeal was in brief that the plaintiff-respondent instituted an Ejectment Suit being Title Suit No. 627 of 1976 for eviction of the defendant-appellant from the suit premises on various grounds including the grounds of default and reasonable requirement. According to the plaintiff-respondent, the defendant was inducted as a tenant in a portion of premises No. 17/3A, Pitambar Bhattacharjee Lane, Beliaghata, District 24- Parganas on a monthly rental of Rs. 1251- payable according to English Calendar month. In the said suit the plaintiff-respondent claimed that she was the executrix to the last Will and testament of late Smt. Hiraprova Bose, who was the owner of the said premises. It was also claimed by the plaintiff-respondent that she was also the owner of the undivided half share in the said property being premises No. 17/3A, Pitambar Bhattacharjee Lane, Beliaghata. The further case of the plaintiff-respondent in the suit was that the original owner Smt. Hiraprova Bose executed a Will in respect of the said property appointing the plaintiff-respondent and another, viz., Shri Sukumar Ghosh as the Joint Executrix and Executor respectively. After the demise of the owner Smt. Hiraprova Bose, the plaintiff-respondent• and the said Sukumar Ghosh filed an application before the Probate Court for obtaining a probate of the Will. But, unfortunately, before the grant of the probate, the Executor Shri Sukumar Ghosh died. However, the plaintiff-respondent was granted probate in respect of the said property of Smt. Hiraprova and was made the sole executrix and hence the plaintiff had been managing and looking after the said property for the benefit, welfare and advantages of the legatees and beneficiaries mentioned in the Will. According to the plaintiff-respondent, she reasonably required the suit premises for the own use and occupation of all the legatees and beneficiaries as the accommodation in their possession was too little when compared with the number of persons belonging to the entire family. According to the plaintiff-respondent, she reasonably required the suit premises for the own use and occupation of all the legatees and beneficiaries as the accommodation in their possession was too little when compared with the number of persons belonging to the entire family. That apart the defendant-appellant was a habitual defaulter and committed nuisance in the suit premises and often behaved in an objectional manner under the influence of liquor. Hence, the plaintiff had no other alternative but to file the suit after service of notice to quit on the defendant. 3. The case of the defendant-appellant was in brief that he was never a defaulter in the matter of payment of rent and never committed any nuisance or annoyance in the suit premises under the influence of liquor. Besides, the further defence case was that the tenancy was never determined validly and lawfully. Again, according to the defendant, the plaintiff had sufficient accommodation in her possession and there was no question of reasonable requirement of the suit premises as claimed. The defendant, therefore, prayed for dismissal of the suit. 4. After a full-dressed trial, learned trial Court dismissed the suit on the ground that the plaintiff had no statutory right to get vacant possession of the tenanted premises for her own requirement in the capacity as an executrix but she could file suit for reasonable requirement of the legatees and beneficiaries. It has further been held that since the executrix has not filed this suit for the cause of the legatees and beneficiaries, she was not entitled to get a decree for eviction. Accordingly, the learned trial Court below dismissed the suit. Being aggrieved by such a decision, the plaintiff-executrix preferred 1st Appeal being Title Appeal No. 484 of 1986, which was disposed of by the learned Additional District Judge, 9th Court, Alipore on 3.9.87. It appears that the points for determination before the said learned First Appellate Court below were as follows :" (i) Has the plaintiff reasonable requirement of the suit premises for her use and occupation? (ii) Was the learned Court below justified in dismissing the suit ?" 5. It appears that the points for determination before the said learned First Appellate Court below were as follows :" (i) Has the plaintiff reasonable requirement of the suit premises for her use and occupation? (ii) Was the learned Court below justified in dismissing the suit ?" 5. On scrutiny of the materials-on-record, it appears that the learned 1st Appellate Court observed as follows: "It seems very curious to me that the plaintiff who has been held to be the owner of the suit property cannot claim the suit premises on the ground of reasonable requirement for herself and for the members of her family." Again it appears that the learned 1st Appellate Court below found that the plaintiff already stated in evidence in regard to the plaintiff's present insufficient accommodation. Accordingly, the said Court held that the plaintiff required the suit premises reasonably and hence the learned trial Court was not justified in dismissing the suit. Accordingly, the said Court held that the plaintiff must get a decree in the suit. Hence, the said Court set aside the judgment and decree of dismissal passed by the learned trial Court below. It is against this judgment and order of the learned 1st Appellate Court that the defendant has come up in Second Appeal before this Forum for redressal of his grievances. 6. I have had the opportunity of hearing learned Counsels of both sides in the matter at length. 7. The only point requiring consideration in the Second Appeal was whether the judgment and order passed by the learned 1st Appellate Court setting aside the judgment and order passed by the learned trial Court should be set aside as prayed for by the defendant-appellant or not. 8. At the time of hearing, learned Counsel for the defendant appellant vehemently submitted that the plaintiff-respondent failed to prove that she reasonably required the suit premises for own use and occupation. He further submitted that the plaintiff-respondent had sufficient accommodation in her possession and hence the learned trial Court below very rightly dismissed the plaintiff's suit. But, unfortunately, the learned Appellate Court below failed to appreciate the same and most wrongly and illegally set aside the order of dismissal passed by learned trial Court below. He further submitted that the plaintiff-respondent had sufficient accommodation in her possession and hence the learned trial Court below very rightly dismissed the plaintiff's suit. But, unfortunately, the learned Appellate Court below failed to appreciate the same and most wrongly and illegally set aside the order of dismissal passed by learned trial Court below. It was again submitted by him that the decree passed by the 1st Appellate Court could not be executed as all the owners of the suit property were not impleaded as parties. It was again submitted by him that the plaintiff was merely an executrix and she did not represent all legatees and beneficiaries and hence the suit must fail. It was further submitted by him that the plaintiff failed to prove that she had no reasonably suitable accommodation elsewhere and hence the judgment and order passed by the learned 1st Appellate Court should be set aside. 9. The learned Counsel for the plaintiff-respondent Shri Sudhis Dasgupta submitted, on the other hand, that the learned 1st Appellate Court below very rightly and lawfully held that the plaintiff-respondent reasonably required the suit premises for use and occupation of all the legatees and beneficiaries and hence the said Court very correctly set aside the judgment and decree passed by the learned trial Court. In that connection, it was submitted by him that the plaintiff filed the suit as an executrix and that she represented all the legatees and beneficiaries. In that context, he drew my attention to Section 211 of the Indian Succession Act, 1925 and submitted that the said provisions inter alia laid down that the executor/executrix of a deceased person was his/her legal representative for all purposes and all the property of the deceased vested in him/her as such. He further submitted that under Section 213 .of the said Act, the right of the executor/ executrix/ legatees stood established with the grant of probate, Ext. I, in favour of the plaintiff executrix by the learned Probate Court. He further submitted that the plaintiff was the owner of half of the said property in her individual capacity and that the remaining half share belonged in equal shares to Shri Chandranath Bose, Indranath Bose and Mathuranath Bose, who happened to be the grandsons of the deceased Smt. Hiraprova Bose. He further submitted that the plaintiff was the owner of half of the said property in her individual capacity and that the remaining half share belonged in equal shares to Shri Chandranath Bose, Indranath Bose and Mathuranath Bose, who happened to be the grandsons of the deceased Smt. Hiraprova Bose. His further submission was that the suit was filed by the plaintiff on behalf of all the legatees and beneficiaries including herself. Hence, the suit was quite maintainable and the plaintiff and all other legatees and beneficiaries of the estate of Smt. Hiraprova were entitled to get a decree for reasonable requirement of the suit premises under Section 13(1) (ff) of the West Bengal Premises Tenancy Act being the owners of the suit property as they had no reasonably suitable accommodation elsewhere other than the suit property. He further submitted that the accommodation in their possession was too little and insufficient. 10. On a scrutiny of the records, it appears that learned trial Court dismissed the plaintiff's suit on the ground that the plaintiff had no statutory right to get vacant possession of the tenanted premises for her own requirement in the capacity of an executrix, but she could file a suit for reasonable requirement of the legatees and beneficiaries, It has further been held by the said Court that since the executrix has not filed the suit for the cause of legatees and beneficiaries, she was not entiled to get a decree for eviction. But, a look at the plaint of T.S. No. 627 of 1976 amply demonstrated that it was the specific averment of the plaintiff that she had been managing and looking after the suit premises for the benefit, welfare and advantages of the legatees and beneficiaries as mentioned in the Will of Smt. Hiraprova Bose as the sole executrix. It bas again been averred in the plaint that the accommodation which was available to the plaintiff, a legatee and other legatees and beneficiaries was absolutely meagre, insufficient and inadequate to accommodate the entire family and they were living there in great difficulty. Thus, the plaint as a whole demonstrated very clearly that the plaintiff brought the suit as an executrix not for her own benefit only but also for the benefit of other legatees and beneficiaries. Thus, the plaint as a whole demonstrated very clearly that the plaintiff brought the suit as an executrix not for her own benefit only but also for the benefit of other legatees and beneficiaries. It was, therefore, wrong on the part of the learned trial Court below to say that the executrix did not file the suit for the cause of all the legatees and beneficiaries. The evidence of the plaintiff as on record clearly indicated that she reasonably required the suit premises for the accommodation of all legatees and beneficiaries including herself. Again there is nothing on record to show that the plaintiff has got any other suitable alternative accommodation anywhere else excepting the suit property. It was not the case of the defendant that the plaintiff was actually having any other suitable accommodation elsewhere other than the suit property. As argued by Shri Dasgupta, the plaintiff being the executrix of her deceased mother Smt. Hiraprova Debi was the legal representative in respect of the property for all purposes and that the suit property vested in the plaintiff as such under Section 211 of the Indian Succession Act, 1925, I again agree with Shri Dasgupta that under Section 213 of the Indian Succession Act, the right of the plaintiff as executrix stood established with the grant of a probate of the Will by the Probate Court. Therefore, as an executrix, the plaintiff could certainly file a suit for ejectment against the defendant as an executrix for the benefit and advantages of all the legatees and beneficiaries. A further scrutiny of the evidence of the plaintiff (P. W.1) and also the Advocate Commissioner's report (Ext. 5) indicated the dearth of accommodation for the plaintiff and other legatees in the premises in question vis-a-vis numerical strength of the members of the entire family. That apart I find no question of law, far less any substantial question of law, in the present case. It has been held by the Hon'ble Apex Court in the case of (1) K.D. Kadam v. S.S. Gujar & Ors. That apart I find no question of law, far less any substantial question of law, in the present case. It has been held by the Hon'ble Apex Court in the case of (1) K.D. Kadam v. S.S. Gujar & Ors. reported in 1999 (3) SCC page 722, that when there was no substantial question of law, the High Court could not disturb the findings of fact of the learned 1st Appellate Court without adhering to the principles and limitations imposed by Section 100 C.P.C. In other words, the High Court cannot substitute its own opinion for that of the learned 1st Appellate Court unless the findings of the learned lower Court were erroneous, perverse and illegal. But, such is not the case here. 11. Considering the facts and circumstances of the case and having regard to the entire materials-on-record, I am, therefore, constrained to hold that the learned trial Court below was wrong in dismissing the plaintiff's suit when she reasonably required the suit premises for the use and occupation of all legatees and beneficiaries who had no suitable alternative accommodation elsewhere other than the suit property. I further hold that the plaintiff reasonably required the suit premises for their own use and occupation as owners. The instant Second Appeal is, therefore, dismissed without costs. The judgment and order passed by the learned 1st Appellate Court dt. 3.9.81 are hereby confirmed. The defendant-appellant is directed to vacate the suit premises within a period of four months from date failing which the plaintiff-respondent will be entitled to recover possession by executing the decree. The instant Second Appeal is, thus, disposed of. Let the lower Court records be sent down to the learned Courts below immediately. Later-The learned Advocate for the Defendant I Appellant prays for stay of operation of this judgment but the said prayer is refused. The lower Court records be sent down to the Court below by Special Messenger at the cost of the respondent. Such cost is to be deposited within 10th January, 2001.