SAKINABI Vs. SALEBHAI HASANALI ENGINEER

JUDGEMENT

(1.) THIS is a revisional application be heirs and legal representatives of one Damji Lavji Damani, being the original Rspondent, hereinafter referred to as "the licensee", in the ejectment Application No, 98/1232/e of 1960 filed by the Opponent (Original Applicant), hereinafter referred to as "the licensor", in the Court of Small Causes at Bombay under Section 41 in Chapter VII of the Presidency Small Cause Courts Act, seeking to eject the licensee from the premises mentioned in the application. The licensee died intestate at Bombay on May 31, 1962, leaving him surviving as his only heirs and legal representatives the petitioners in this revisional application. By his applicationdated November 12, 1962, the licensor applied to the Court of Small Causes to set aside the abatement of his application and to condone delay in the making of the application and bring on the record of the ejectment application the names of the above petitioners as Defendants 1 to 8 as legal representatives of the licensee.

(2.) THE petitioners inthis revisional application contend that the Court of Small Causes ought not to have made the order dated February 21, 1963, granting the application of the licensor. Their case is that the Court below ought to have held that since the licensor's case against the deceased licensee was that he was a licensee and his licence had been revoked, the ejectment application came to an end (altogether) upon the death of the licensee on May 31, 1962. the proceedings for ejectment under Section 41 of the Act are such as cannot be continued against the legal representatives of the licensee. The reason for this, according to the petitioners, is that a license is not heritable. The proceedings under Section 41 could only llie against a licensee. These proceedings filed against any particular person are not liable to be continued against his legal representatives, because a licence is not heritable and does not create any rights in the legal representatives of the original Opponent in the ejectment application.

(3.) IN this connection, the Petitioners rely upon the decision of a single Judge, of the High Court at Madras in the case of Ranganatham Pillai v. Govindarajulu Naidu, 1950-2 Mad LJ 280. In the above case, a landlord had filed an ejectment application under Section 41 of the Presidency Small Cause Courts Act against two Defendants. the Defendant 1 to whom the licence had been granted (licensee) died pending the hearing of the ejectment application. The applicant applied to the trial Court for having the 2nd Defendant brought on record as legal representative of Defendant 1 in the ejectment application. The trial court granted that application. In the revisional petition before the High Court of Madras, on behalf of the 2nd Defendant, it was contended that "the cause of action contemplated by section 41 of the Presidency Small Cause Courts Act, where a licensee happens to be the personagainst whom a proceedings is sought to be taken in the first instance is something which necessarily expires with the death of the licensee. " The contention urged was that with the death of the 1st Defendant there was no proceeding to be continued against the 2nd Defendant as "holding under or by assignment from" the 1st Defendant within the language of Section 41 of the Act. the contention was accepted by the Court. In that connection, the Court disapproved of the observation made by the High Court of Calcutta in the case of Hirendra Bhusam v. Purnachandra, (1948) 52 Cal WN 843 at p. 848. The Court referred to the decision of the High Court of Madras in the case of Chinnan v. Ranjithammal, ILR 54 Mad 554: (AIR 1931 Mad 216 ). It is necessary to point out that the first part of the observations in the case of ILR 54 Mad 554: (AIR 1931 Mad 216) quoted in the case of 1950-2 Mad LJ 280 related to the position of a licensee whose licensor sells away the immovable property in question. It is observed that upon transfer and sale of the property and the licensee ceases to have any rights altogether and the licence stands revoked upon further and sale of the property. The Court further observed: "a licence is not annexed to the property in respect of which it is enjoyed nor is it a transferable or heritable rights, but is a right purely personal between grantor and licensee. Unless a different intention appears, it cannot even be exercised by the licensee's servants or agents (Section 56 ). Accordingly in their occupation of the plot and especially so since the death of Poonjolai, the defendants have been mere trespassers. . . . . . . . . . We need not look further for authority than to Vadapalli Narasimham v. Dronamaraju Seetharamamurthi, (1908) ILR 31 Mad 163, for the proposition that the representatives of a tenant on sufferance are mere trespassers, since they cannot be regarded as succeeding to any interes in the tenancy; and what is true also of a licinsee. " Now, in connection with the above observations of the High Court of Madras in the case of ILR 54 Mad 554: (AIR 1931 Mad 216) we respectfully agree that a licence is not annexed to the property, nor is it transferable or heritable. We further agree that a tenant on sufferance is a mere trespasser and what is true of a tenant onsufferance would seem to be true also of a licensee. The total result of the above position is that upon revocation of a licence the licensee ceases to have any lawful right to enter upon and /or to continue in occupation of the property in question. The character of his possession and occupation subsequent to the valid revocation of the licence is that of a trespasser.