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2006 DIGILAW 621 (CAL)

Renuka Debnath v. Narayan Chandra Mallick

2006-09-20

PRABIR KUMAR SAMANTA, TAPEN SEN

body2006
Judgment : SAMANTA, J. (1) THE defendants are the appellants in this appeal, against the judgment and decree for recovery of khas possession of the suit premises no. 52-Patal Danga Street, P. S. Amherst Street, Calcutta-700 009 comprising of rooms on the two floors of the said premises as mentioned in detail in the schedule to the plaint. (2) THE plaint case in brief is as under:-The plaintiff/respondent-Narayan Chandra Mallick and his only brother Balai Chand Mallick since deceased granted lease of the aforesaid suit premises to the predecessor-in-interest of the defendants, namely, Jiban Krishna Debnath for a period of 21 years commencing from 2nd of July, 1963 and expiring on 1st of April, 1984. During the subsistence of the said lease Balai Chand Mallick died leaving behind his wife Smt. Bela Rani Mallick as his only heir. The said Bela Rani mallick filed Title Suit No. 610 of 1970 for partition of the aforesaid premises. Through the intervention of the well wishers the said suit was compromised. Bela Rani sold her share to the plaintiff upon acceptance of consideration. The plaintiff thus became the full and absolute owner of the said premises. (3) ALSO during the subsistence of the lease the lessee, Jiban Krishna debnath died leaving behind his widow, five sons and two daughters. On the death of lessee the two sons of the deceased lessee and his widow i. e. , defendant Nos. 1 to 3 by a letter informed the plaintiff that they along with their other brothers only are residing in the suit premises and as such became tenants under the plaintiff and they would be governed by the terms of the lease as entered into by and between the plaintiff and their father. By the said letter the defendants requested the plaintiff to issue the rent receipt in the name of their mother Smt. Renuka Debnath only. The said letter has been marked as Exhibit-11 in the said suit. (4) THE said suit was filed after expiry of the period of lease. Three of the sons and two married daughters of the deceased were impleaded as defendants while the widow figured as defendant No. 1. The said letter has been marked as Exhibit-11 in the said suit. (4) THE said suit was filed after expiry of the period of lease. Three of the sons and two married daughters of the deceased were impleaded as defendants while the widow figured as defendant No. 1. The same was filed upon contention that the lease stood expired by efflux of time upon expiry of 1st of July, 1984 but the defendant did not quit, vacate and deliver up vacant possession of the suit premises to the plaintiff since then. Altho. ugh the defendants were not entitled to any notice to quit but the plaintiff asked the defendants to quit, vacate and deliver possession of the suit premises by a letter dated 6th March, 1986 which was duly received by the defendants but failed and neglected to quit, vacate and deliver up vacant possession of the premises to the plaintiff. (5) THE defendants contested the suit by filing two separate sets ot written statements, one by defendant Nos. 1 to 5 and the other by defendant No. 6. The sum and substance of both the written statement are more or less same. Besides, usual denial of all the statements of the plaint, in the written statements a case was made that the defendant no. 1, the widow of the deceased lessee having been granted rent receipt by the plaintiff acting on the basis of the said letter was accepted as a monthly tenant under him, the tenancy of which is governed by the West Bengal Premises. Tenancy Act, 1956. (6) ON the pleadings of the parties several issues were framed by the learned Trial Judge, out of which two are of relevance, namely, is the suit bad for defect of parties and did the defendants acquire a new tenancy in theii favour during the continuance of the lease? (7) IN the suit, plaintiff examined himself as P. W. 1 while the defendanl examined herself as D. W. 1. No other witnesses were examined in the suit, (8) AT the trial the lease deed was proved in evidence and marked as exhibit-2. The sale deed executed by Smt. Bela Rani Mallick, wife of deceased balai Chand Mallick, in respect of her share in the suit premises in favour of the plaintiff was also marked as Exhibit-1. No other witnesses were examined in the suit, (8) AT the trial the lease deed was proved in evidence and marked as exhibit-2. The sale deed executed by Smt. Bela Rani Mallick, wife of deceased balai Chand Mallick, in respect of her share in the suit premises in favour of the plaintiff was also marked as Exhibit-1. (9) THE rent receipts issued in favour of the defendant No. 1 were proved in evidence and marked as Exhibit-4 series. Two letters addressed to the defendant No. 1, one dated 15th March, 1984 issued prior to the expiry of the lease requesting her to vacate the suit premises upon expiry of the lease and the other dated 7th March, 1986, i. e. , after expiry of the lease in the nature of notice under Section 106 of the Transfer of Property Act commanding her to vacate and deliver peaceful possession of the suit premises on the expiry of the month of April 1986, were proved in evidence and marked as Exhibits-6 and 7 respectively. The Postal Acknowledgement receipts were also marked as Exhibits-7 and 8. (10) THE learned Trial Court upon consideration of the evidence of the parties and the aforesaid exhibits, more particularly the Exhibit No. 11 as aforesaid, has held that the same created an impediment for the defendant to build up a case for fresh tenancy as alleged by them. By the said letter addressed to the plaintiff, it was specifically stated by them that they would be governed by the terms of the lease. They themselves did not plead for creation of any tenancy in between the plaintiff and defendant No. 1 by the said letter. That apart, no evidence was adduced by the defendants to show that a fresh tenancy was created by and between the plaintiff and the defendant No. 1 in respect of the suit premises upon surrender of leasehold interest in the suit premises. Also no evidence was led so as to create a fresh tenancy by implication. (11) ON the question of defect of parties the learned Trial Judge has held that for the purpose of treating a person to be a premises tenant on the death of the original tenant two conditions are to be fulfilled by him. Also no evidence was led so as to create a fresh tenancy by implication. (11) ON the question of defect of parties the learned Trial Judge has held that for the purpose of treating a person to be a premises tenant on the death of the original tenant two conditions are to be fulfilled by him. He must be a family member of the deceased lessee and was residing in the tenanted premises at the time of death of the tenant. The learned Judge has, accordingly, held that since the defendant No. 1 was residing in the suit premises as being the wife of the deceased lessee and further since she was set up as a sole lessee by all the heirs and legal representative of the deceased lessee and the rent receipts were issued in her name only after the death of the original lessee there was no defect of parties in the suit. The original lease continued to be in force till before its expiry. For coming to such a conclusion the learned Trial Judge relied on a Supreme Court decision reported in All 2001 SCW 2142 which has been rendered in a case governed by Bombay rents, Hotels and Lodging House Rates Control Act, 1947. 1 will deal with the said decision latter when it is necessary. (12) MR. Dhirendra Kumar Das, learned Advocate, appearing on behalf of the defendant/appellants argued this appeal on a limited point that the suit is not maintainable as it suffers from defect of parties inasmuch as the heirs and legal representatives of the deceased defendant have not been made parties in the suit. In other words, all the heirs and legal representatives of the deceased lessee inherited the leasehold interest in the suit property and as such the suit for recovery of possession upon expiry of lease by efflux of time is not maintainable only against some of the heirs of the deceased lessee. This argument certainly has been advanced by accepting the position that the lease as per Exhibit-2 above which was for a period of 21 years, commencing from 2nd July, 1963 and expiring on 1st July, 1984 subsisted between the plaintiff lessor and the heirs and legal representatives of the deceased lessee. This argument certainly has been advanced by accepting the position that the lease as per Exhibit-2 above which was for a period of 21 years, commencing from 2nd July, 1963 and expiring on 1st July, 1984 subsisted between the plaintiff lessor and the heirs and legal representatives of the deceased lessee. (13) THIS very contention put an end to the issue as to the creation of a fresh monthly tenancy governed by the West Bengal Premises Tenancy Act, 1956 in favour of the defendant No. 1 alone, the widow of the deceased lessee, because of the aforesaid letter (Exhibit-11) or upon acceptance of rent from her by the plaintiff and by granting rent receipt, therefore, to her. The above contention, therefore, raises a question that upon the death of the original lessee, all the heirs and legal representatives of the original lessee having inherited the leasehold interest in the suit premises whether a suit for recovery of possession of the entire suit premises would be maintainable against one such heir of the deceased lessee. This question obviously brings in the further question as to whether on the death of the original lessee, the heirs and legal representatives would inherit the tenancy as joint tenants or tenants in common. It is not in doubt that once it is held that they would inherit the same as joint tenants then the suit against any one of the joint tenants would be very much maintainable, but not in case of a tenancy in common. (14) MR. Das elaborating his arguments further contended that upon expiry of the lease by efflux of time with effect from 01. 07. 1984 all the heirs of the deceased lessee were in possession of suit premises as tenants at sufferance by implication of law. Their possession was juridical. As such the defendants as also the other two sons of the deceased lessee were entitled to maintain their possession as they are having a protected possessory right until evicted by a due process of law. According to him the defendants are thus in possession of the suit premises as tenants at sufferance and not as joint tenants as contended by the plaintiff and held by the learned trial Judge. In support of such contention Mr. According to him the defendants are thus in possession of the suit premises as tenants at sufferance and not as joint tenants as contended by the plaintiff and held by the learned trial Judge. In support of such contention Mr. Das referred to the two Supreme Court decisions reported in 1995 (5) SCC 698 R. V. Bhupal prasad v. State of A. P. and Ors. , 2001 (6) SCC 512 , Kewal Chand Nimani v. S. K. Sen and Ors. (15) IN the case of R. V. Bhupal Prasad (supra) it has been held in paragraph-8 of the said report as under:- "tenant at sufferance is one who comes into possession of land by lawful title, but who holds it by wrong after the termination of the term or expiry of the lease by efflux of time. The tenant at sufferance is, therefore, one who wrongfully continues in possession after the extinction of a lawful title. There is little difference between him and a trespasser. In Mullas Transfer of Property Act (7th Edn.) at page 633, the position of tenancy at sufferance has been stated thus: A tenancy at sufferance is merely a fiction to avoid continuance in possession operating as a trespass. It has been described as the least and lowest interest which can subsist in reality. It, therefore, cannot be created by contract and arises only by implication of law when a person who has been in possession under a lawful title continues in possession after that title has been determined, without the consent of the person entitled. A tenancy at sufferance does not create the relationship of landlord and tenant. At Page 769, it is stated regarding the right of a tenant holding over thus: The Act of holding after the expiration of the term does not necessarily create a tenancy of any kind. If the lessee remaining in possession after the determination of the term, the common law rule is that he is a tenant on sufferance. The expression "holding over" is used in the tenant continuing in possession after the determination of the lease, without the consent of the landlord and a tenant doing so with the landlords consent. The former is called a tenant by sufferance in the language of the English law and the latter class of tenants is called a tenant holding over or a tenant at will. The former is called a tenant by sufferance in the language of the English law and the latter class of tenants is called a tenant holding over or a tenant at will. The lessee holding over with the consent of the lessor is in a better position than a mere tenant at will. The tenancy on sufferance is converted into a tenancy at will by the assent of the landlord, but the relationship of the landlord and tenant is not established until the rent was paid and accepted. The assent of the landlord to the continuance of the tenancy after the determination of the tenancy would create a new tenancy. The possession of a tenant who has ceased to be a tenant is protected by law. Although he may not have a right to continue in possession after the termination of the tenancy, his possession is juridical. " (16) THIS contention of Mr. Das therefore does not get support from this decision. Because the tenancy at sufferance is a consequence of both the classes of joint tenancy and tenancy in common because of severance of leasehold interest during the subsistence of the lease by the lessor or by efflux of time. This judgment nowhere says that the lessee and/or all the heirs and legal representatives of the deceased lessee shall be held to be the tenants at sufferance even when they are not in possession, or for that matter tenants at sufferance are at law tenants at common. (17) IT may be stated herewith that in this particular case the exhibit-11 is the living document against such proposition. The five sons of the deceased lessee along with their widow mother agreed to continue with the lease of the leasehold interest in the suit premises on the same terms and conditions as entered into by and between the plaintiff and the predecessor-in-interest of the defendants. The defendant/tenants thus became tenants at sufferance after the expiry of the lease by efflux of time. It is thus clear that such tenancy at sufferance came into existence as soon as the contractual tenancy which existed between the parties came to an end by efflux of time. The defendant/tenants thus became tenants at sufferance after the expiry of the lease by efflux of time. It is thus clear that such tenancy at sufferance came into existence as soon as the contractual tenancy which existed between the parties came to an end by efflux of time. If the contractual relationship of landlord and tenant between the parties was that of a joint tenant or tenants in common such relationship would continue till before the expiry of the lease and in that status the tenants would be the tenants at sufferance soon after the expiry of the lease if they continue to hold it by wrong after the expiry of the lease by efflux of time. This tenancy at sufferance, therefore, is the consequence upon the expiry of the lease by efflux of time and does not give a new incidence to the tenancy. The rather the tenants would be the tenants at sufferance in the same status and characteristic as they had before the expiry of the lease. (18) THE decision of the Supreme Court in the case of Kewal Chand Nimani and Ors. did not lay down any new proposition of law other than what is discussed above. It has been held there that a person whose lease has expired is still entitled to maintain possessory right so long as and until he be evicted by due process of law. However, the factual aspect of the matter has to be gone into to make the provisions of law or judicial precedence applicable - the proposition which is noticed above pertains to the possessory right and eviction in accordance with law. In the present case the lessee has lost his possessory right and the same stands shifted on to the State; once, however, the possessory right is transferred or shifted from the lessee and the lease deed stands terminated during this temporary interregnum when the lessee was deprived of its possession, question of putting back the lessee in. possession, after the expiry of the lease in accordance with the provisions of law, does not and cannot arise. The Court has to do equity and in doing so it has to consider the fact situation of the matter in issue and it is only thereafter that it can pass certain orders thereof. possession, after the expiry of the lease in accordance with the provisions of law, does not and cannot arise. The Court has to do equity and in doing so it has to consider the fact situation of the matter in issue and it is only thereafter that it can pass certain orders thereof. There is not even an iota of right existing in favour of the lessee to call for their possessory right. The right of the lessee stands obliterated by reason of efflux of time coupled with the issuance of the requisition order which temporarily suspended the lessees right to occupy though that does not put an end to the lessors right to own the premises unless of course, acquisition follows by requisition order and the provisions of law on the basis of which the order for requisition was passed also expired by lapse of time. (19) IN such context can it be said that the other two sons of the deceased lessee who are not signatories to the Exhibit-11 and also were not proved to be in possession of the suit premises on the death of their father or at any time since thereafter till today could also be said to be the tenants at sufferance of the suit premises and whose absence would make the suit not maintainable? In my view there cannot be any answer than no. (20) SO far the question as above is concerned it could not have detained j me any further in view of the decision of the Supreme Court reported in AIR ? 1989 SC 1470 (H. C. Pandey v. G. C. Paul) except for the Division Bench judgment of this Court reported in 1998 (1) CHN 521 (Amal Krishna Aditya v. Ganesh Chandra Das) both of which have been cited by Mr. Amal Krishna sen learned Advocate for the respondent for which I give my reasons below:-The aforesaid Supreme Court decision is a decision under the provisions of the Transfer of Property Act. In the said decision, the supreme Court has laid down in no uncertain terms 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. The incidence of the tenancy is the same as those enjoyed by the original tenant. The incidence of the tenancy is the same as those enjoyed by the original tenant. It is a single tenancy, which devolves upon the heirs. There is no division of the premises or of the rent payable therefor. That is the position as between the landlord and the heirs of the deceased tenant. In other words, the heirs succeed to the 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 all and acted on behalf of all the heirs of the original tenant, the notice to only one of the joint tenants could not be said to be insufficient. (21) THIS decision practically put a death mail to the argument advanced on behalf of the appellants. (22) HOWEVER, Division Bench of this Court in the aforesaid reported decision in the case of Amal Krishna Aditya (supra) has observed that the above noted reported decision of the Supreme Court is the alone decision of the Supreme court consisting of two Honble Judges which has held that on the death of the original tenant his heirs and legal representatives will inherit the tenancy as joint tenants while the majority decisions of the Supreme Court like AIR 1968 SC 751 : air 1990 SC 2053 have rendered a contrary view. Moreover, both the contrary decisions of the Supreme Court are by the three Honble Judges. The said Division bench further by discussing the question in the face of the judgment of two honble Judges oft he Supreme Court in the case of H. C. Pandey (supra) and the majority decisions of the Supreme Court reported in AIR 1968 SC 751 and air 1990 SC 2053 has followed the ratio of the decision reported in AIR 1968 sc 751 by endowing due authoritative proposition made by the Division benches of at least three Judges of the Supreme Court as per the dictum given by the Supreme Court in the decision reported in 1989 (2) SCC 751 (Union of India v. Raghubar Singh). (23) BE that as it may I am of the view that it is not necessary to go into the controversy as to whether the decision of the Supreme Court reported in the case of H. C. Pandey (supra) has laid down the correct proposition of law or not for the purpose of deciding the question raised in this appeal on behalf of the appellant. In this case at least there is no controversy that all the sons unambiguously represented to the plaintiff/landlord that on the death of the original tenant rent receipt be issued in the name of defendant No. 1 alone, their mother. There is no evidence forthcoming that all the heirs and legal representatives of the deceased original tenant exercised their lease hold interest in the suit premises at any point of time. Interestingly, the married daughters of the deceased original tenant did not put their hand in the aforesaid letter (Ext-11) whereby the sons of the original tenant requested the plaintiff / landlord to issue rent receipt only in the name of their mother defendant No. 1. The defendant No. 1 alone deposed in the suit. None of the sons of the deceased original tenant deposed in the suit. She proved nothing except for deposing that the landlord gave rent receipt in her name and she was the sole tenant in respect of the suit premises and she cannot say if after the death of her husband, the sons along with her became lessees in the suit premises. (24) AGAIN the letter Ext-11 was signed by the defendant No. 1, widow and two sons of the deceased namely Niranjan and Badal, defendant Nos. 2 and 3 respectively. The defendant Nos. 1 to 3 by the said letter (Ext-11)represented all the heirs and legal representatives of the deceased original lessee. None of the sons and daughters of the deceased lessee came forward to assert their possession or their tenancy right. The suit was accordingly filed by impleading the defendant Nos. 1 to 3 who represented all the heirs and legal representatives of the deceased original lessee. In either case of joint tenancy or tenancy-in-common it cannot be said that the suit suffered from defect of parties because of such representation. The suit was accordingly filed by impleading the defendant Nos. 1 to 3 who represented all the heirs and legal representatives of the deceased original lessee. In either case of joint tenancy or tenancy-in-common it cannot be said that the suit suffered from defect of parties because of such representation. In this regard, the observation made by the Division Bench of this Court in the case of Amal krishna Aditya (supra) at Paragraphs54 and 55 of the said report is of much relevance. It has been held therein as under:- " Secondly even if it is held that the above facts and circumstances of the case do not prove any surrender and/or relinquishment of the tenancy rights of the defendant/appellants other brothers, but the acts and conducts of the defendant / appellant and his other brothers as stated above would lead us to the conclusion that the defendant / appellant represented the entire tenancy, and thus, the principle of representation would also clearly apply to the present case, and any action taken by the landlord against the defendant / appellant alone, would bind the other co-tenants also, as the defendant / appellant would be deemed to be representing the other co-tenants. Therefore, in any form, the impugned notice to quit served upon the defendant/appellant and as well as the suit filed by the landlord against the defendant/appellant, are both valid, legal and maintainable in law, respectively. " (25) IT is settled position of law that the suit for recovery of possession upon expiry of lease by efflux of time is not necessarily to be preceded by a notice of eviction under Section 106 of the Transfer of Property Act. Therefore, the notice of eviction if there be any to the defendant No. 1 alone is of no consequence. In this case the plea of a fresh monthly premises tenancy has been thus abandoned as stated hereinbefore. Therefore, upon expiry of lease the tenancy became tenancy at sufferance. According to the Supreme Court there is little difference between a tenant at sufferance and a trespasser. Legally speaking a trespasser is a person who came into possession without any semblance of right to possess. Therefore, upon expiry of lease the tenancy became tenancy at sufferance. According to the Supreme Court there is little difference between a tenant at sufferance and a trespasser. Legally speaking a trespasser is a person who came into possession without any semblance of right to possess. It is therefore an absurd proposition that the sons of the deceased who have not even proved their possession in the suit premises are to be treated as tenants at sufferance and impleaded as parties for a suit for recovery of possession from them. (26) FOLLOWING the aforesaid observation made by the Division Bench of this Court and in view of the discussions as above I have no hesitation to hold that the present suit is very much maintainable in the absence of the other sons of the deceased original lessee if there be any. In view of the above discussions I do not find any necessity to deal with the other two judgments cited by Mr. Amal Kr. Sen learned Advocate on behalf of the respondents, namely, the decision of Supreme Court reported in 1995 Supp. (3) SCC 403 (Karayadathil Kunhimoosa Manjerintha and Anr. v. Valiaparambath m. T. Kalliani (SMT) and Ors. and the Division Bench judgment of this Court reported in 1989 (1) CLJ 351 (Smt. Sumilita Bhattacharya and Anr. v. Smt. Nila chatterjee). However, I like to mention that the decision of the Supreme court reported in AIR 2001 SC 2251 (Ashok Chintaman Juker and Ors. v. Kishore Pandurang Mantri and Anr.) as referred to by the learned Trial Judge in his judgment is not of much relevance for the present purpose as the said judgment has been rendered under the provision of the Rent Control legislation. Incidences of monthly premises tenancies governed by Rent control legislation are different from those of the lease for a period of 21 years and above. For all the foregoing reasons, I hold that the contention advanced by mr. Das on behalf of the appellant is not tenable and the same is therefore rejected. The appeal is accordingly dismissed. There will be no order as to costs.