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2010 DIGILAW 660 (CAL)

Montee Dey v. Chandralekha Roy

2010-06-18

B.BHATTACHARYA, PRABHAT KUMAR DEY

body2010
JUDGMENT 1. THIS second appeal is at the instance of two married daughters of the appellant and is directed against Order No. 16 dated 30th April, 2010 passed by the learned First Appellate Court below holding that the appeal preferred by the appellant had abated as right to sue did not survive upon the present appellant before us. 2. THERE is no dispute that the father of the present appellants was the tenant in respect of the suit property against whom suit for eviction was filed. During the pendency of the suit the father of the present appellants died and on his death only his widow namely, the mother of the present appellants was substituted although the mother took the point that two married daughters should also be substituted. Ultimately, the suit was decreed against the mother of the present appellants. 3. BEING dissatisfied, the mother of the appellants preferred an appeal before the First Appellate Court below and during the pendency of the appeal, the mother of the appellants died and on her death, the present appellants came up with an application for substitution for being substituted in place of their mother. 4. BY the order impugned herein, the learned First Appellate Court below has rejected such application and at the same time held that right to sue did not survive on the death of the mother of the appellants upon the appellants. Being dissatisfied, the appellants have come up with the present second appeal. 5. AFTER hearing Mr. Sanyal, the learned Advocate appearing on behalf of the appellants, we find that according to the provisions of the West Bengal Premises Tenancy Act, 1997, on the death of the tenant, the tenancy devolves upon the widow for tenant for life and upon other heirs who were ordinarily residing at the time of death of the tenant for a period of five years. 6. THERE is no dispute that the present appellants are the married daughters of the original tenant. Although the mother of the appellants took the plea that the present appellants should also be substituted, the learned Trial Judge overruled such objection and ultimately decreed the suit. 7. BEING dissatisfied, the mother of the appellants preferred an appeal and during the pendency of the appeal the said mother died. Although the mother of the appellants took the plea that the present appellants should also be substituted, the learned Trial Judge overruled such objection and ultimately decreed the suit. 7. BEING dissatisfied, the mother of the appellants preferred an appeal and during the pendency of the appeal the said mother died. On the date of death of the mother of the appellants, five years time from the date of death of the father of the appellants had already expired and thus, even if we assume for the sake of argument, that the plaintiffs, in spite of being married daughters, were residing along with their father, five years after the death of their father they lost right of tenancy in the suit property and their mother's tenancy also came to an end on her death. 8. THEREFORE, the learned First Appellate Court below rightly held that on the death of the mother of the appellants, right to sue did not survive as the heirs of the mother as the tenancy right in the property of their mother came to an end on her death. Even in that appeal, there was no scope of any argument that independently of their own, the appellants were entitled to continue tenancy on the death of their father, being resident in the property as five years' time had already expired from the date of death of their father. Thus, there is no infirmity in the order passed by the learned Court of Appeal below. This appeal is, thus, devoid of any substance and is dismissed under Order 41 Rule 11 of the Code. 9. IN view of dismissal of the appeal itself, the connected application has become infructuous and the same is disposed of accordingly. 10. AFTER this order is passed, Mr. Sanyal, the learned Advocate appearing on behalf of the appellants, prays for stay of execution case by certain time. Having regard to the fact that the appellants did not come forward of their own to be substituted on the death of their father knowing fully well that mother alone was substituted and at the same time law having provided no right of tenancy on the expiry of five years from the death of their father even if they were ordinarily residents of that property, we find no substance in such prayer. The prayer is, thus, refused. The prayer is, thus, refused. Urgent xerox certified copy of this order, if applied for, be handed over to the learned Advocates for the parties within one week from the date of making application upon compliance of all requisite formalities.