MANNALAL SEROWGIE Vs. ISHWARIPRASAD JAIN

JUDGEMENT

(1.) The facts in this case are briefly as follows. The plaintiff-appellant Mannalal Serowgie and the joint family of which he is the karta, is the owner of premises No. 8, Banstollah Gully. It is a three-storeyed structure consisting of a number of rooms. On or about 1.7.1914 two persons, one Prasadilal since deceased and Chittarmal the second defendant-respondent, took a lease of the first and second floor of the said premises. The lease was for a period of three years at a rent of Rs. 230/- per month. The lease was to take effect from 14th of April, 1945 and it expired on or about 13th April, 1948. The case of the appellant is that upon the expiry of the lease, Prasadilal for self and as karta of a joint family consisting of himself, his brothers and their lineal descendants, and the said Chittormal, became joint tenants in respect of the first, second and the third floor of the said premises. The tenancy was a monthly tenancy at a rental of Rs. 325/- per month. The evidence is that the rent was paid at all material times under the name and style of Prasadilal Chittarmal Jain. Theyin their turn inducted a number of sub-tenants. It is in evidence that the respondent No. 1, Ishwariprasad Jain, a brother of Prasadilal, became a sub-tenant in respect of one room. Prasadilal died in May 1953. He died unmarried and without issue. It is necessary here to say something about the family of Prasadilal. I have already stated that the appellant alleges that Prasadilal was a tenant for self and as karta of a Hindu joint family and this is denied. However, it appears that Prasadilal had three brothers, Ishwariprasad, Sitaram and Chitranjilal. Sitaram died during his lifetime, leaving his son Nemchand. Ishwariprasad has a son named Premchand. It is in evidence that Ishwariprasad, Premchand and Nemchand are still residing in the said premises. So far as Chiranjilal is concerned, it is said that he was last known to be residing at Howrah. Anyhow, the evidence of Ishwariprasad is that the family was never joint that the brothers had separated long ago and that neither Prasadilal nor himself ever became karta of a joint family. After the death of Prasadilal, the tenancy continued in the same name of Prasadilal Chittarmal Jain, in which name rent was paid to the landlord as well as rents were realised from sub-tenants. The case of the plaintiff is, that after Prasadilal died, Ishwariprasad together with Chittarmal came to him and Ishwariprasad represented that he was the senior member of the family and the premises let out to Prasadilal and Chittarmal should be let out on the same terms to himself and Chittarmal and so they became the tenants. It is stated in the plaint that rents were in arrears for 28 months from Chaitra Sudi 2nd, Samvat year 2011 corresponding to 5th April, 1954 to Asar Sudi 1st, Samvat year 2013 corresponding to 9th July, 1956, aggregating to Rs. 9100/-. In the plaint, the first defendant is Ishwariprasad Jain for self and as Karta of a joint Hindu Mitakshara family consisting of himself, his brother and their lineal descendants. The second defendant is Chittormal Jain. So far as Ishwariprasad is concerned, it is pleaded that upon the death of Prasadilal he became the karta of a joint Hindu family. Alternatively, he was at all material times the legal heir and/or de facto administrator of the estate of Prasadilal Jain, since deceased. There is an alternative case made against both the defendants for damages for use and occupation. It appears that only Ishwariprasad contested the suit. At the hearing, Ray J., passed a decree against the defendant Chittarmal with cost as of an undefended suit. The suit against Ishwariprasad was however, dismissed with cost. It is against this judgment dated 14.5.1962 that this appeal has been preferred, and the only contesting respondent is Ishwariprasad Jain.

(2.) In the Court below ten issues were framed which are set out below :-

(3.) Before I go into the question as to whether the issues have been properly decided, it would be convenient here to set out the exact stand made by the parties before us. It was a much simpler stand than made in the Court below and makes the real issue to be tried, simpler to understand. According to Ishwariprasad, there was no joint family of which either Prasadilal or himself was the Karta. According to him, he came to Calcutta when he was only 18 years old and thereafter lived and worked with his maternal uncles in their shop at 86/1, Upper Chitpur Road where they sold brass bells and gift ornaments. After a while Prasadilal also came and jointed the business. After the death of the maternal uncles, the business was carried on under the name of Prasadilal Ishwariprasad at 86 and 86/1, Upper Chitpur Road. According to him, Prasadilal and Chittarmal took the tenancy, and he himself had nothing to do with the same. They did not constitute a joint Hindu family with their brothers or with their brothers' sons. He himself, together with his son Premchand, as also Sitaram since deceased and his son Nemchand, had been residing in the said premises as sub-tenants upon payment of rent to Prasadilal Chittarmal. So far as Chiranjilal is concerned, he was living at Howrah and never lived in the said premises. It is not very clear from the evidence as to where he does reside at present or as to whether he is alive at all. The evidence is that both before the death of Prasadilal as well as after his death, Ishwariprasad used to realise rents from the sub-tenants as well as used to pay rents to the landlord, the appellant. According to the appellant, Prasadilal became a tenant, as Karta of a Joint Hindu family, and this was continued after the death of Prasadilal with Ishwariprasad as the Karta, representing the joint family : Chittarmal was a tenant throughout in his personal capacity. According to Ishwariprasad, there was never any joint family. They were all separate. According to him, Prasadilal in his individual capacity was a joint tenant with Chittarmal of the said premises and after the death of Prasadilal, the tenancy continued in the name of Prasadilal, Chittarmal Jain but it was continued by Chittarmal alone. He does not deny, and this has been proved by documentary evidence, that he realised and paid rents both before the death of Prasadilal as well as afterwards. He explains this by saying that before the death at his request and after the death of Prasadilal he did so at the request and as agent of Chittarmal, and that he himself never, either became a tenant under the appellant, nor did he interfere with the estate of Prasadilal. It is also admitted that Prasadilal died unmarried without any issue him surviving. Under the Hindu law, the brothers would be the next heirs. At the time of the death of Prasadilal, two brothers were alive namely, Ishwariprasad and Chiranjilal, of whom, only Ishwariprasad has been made a party leaving out Chiranjilal, whose whereabouts are not known. Mr. Bhabra appearing for the appellant has formulated his case in a very simple way. He argues that it is unnecessary to go into the question of an undivided family or whether the estate of Prasadilal. On the admitted facts, Prasadilal and Chittarmal were joint tenants in respect of a monthly tenancy in respect of the first, second and third floors of the said premises. This monthly tenancy is a heritable property and upon the death of Prasadilal his interest devolved on his heirs including Ishwariprasad. It is then argued that upon this footing, the heirs of Prasadilal namely his surviving brothers together with Chittarmal became tenants of the said premises and each of them had a tenancy-in-common in respect of the whole premises. It is argued, that there was no necessity in law to implead Chiranjilal. Upon the evidence on record, the existence of a joint family of which Prasadilal or Ishwariprasad was a karta has not been proved. But upon the facts mentioned above, there cannot be any dispute that there was a monthly tenancy and upon the death of Prasadilal his interest devolved upon his heirs and that Ishwariprasad was one of his heirs. The dispute, however, commences here. The first point raised by Ishwariprasad is, that he never entered into possession and therefore, is not liable for any part of the rent after the death of Prasadilal. The second point raised by him is, that in any event, if there was a liability of the heirs of Prasadilal, it was a joint liability of all the brothers and inasmuch as Chiranjilal has not been made a party to the suit, the action must fail. Upon both these points, the Court below found in favour of the respondent No. 1. The learned Judge held that upon the death of Prasadilal, Ishwariprasad did not become a tenant of the plaintiff and the plaintiff was not entitled to claim against him on the footing that he was a legal heir or administrator in the absence of all the heirs. As a result, the suit was dismissed with cost as against the defendant No. 1.