SUMILITA BHATTACHARYA & ANR. Vs. NILA CHATTERJEE

JUDGEMENT

(1.) This appeal is directed against the judgment and decree passed by the learned Judge, 10th Bench, City Civil Court, Calcutta in Ejectment Suit No. 979 of 1977. The plaintiff respondent instituted the said Title Suit for eviction of the defendants appellants from the disputed premises at 12, Badur Bagan Lane, P.S. Amherst Street in the city of Calcutta on the ground of reasonable requirement of the disputed premises by the plaintiff and the members of her family and also on the ground of default in payment of rent. The case of the plaintiff respondent was, inter alia, that she became the landlady of the disputed premises on account of her purchase of the said property and by letter of attornment she informed the original tenant Shri Aswini Kumar Ghosh about her title to the property and thereafter the said tenant Aswini Kumar Ghose paid rents to the plaintiff. After the death of the said tenant, the son and the daughter of Aswini Kumar Ghose namely the defendants appellants by two separate letters informed the plaintiff that in view of the death of the said Aswini Ghose, the original tenant, they become tenants in respect of the premises and rent receipt should be issued to them. The plaintiff contended that the said defendants however failed and neglected to pay rent and they defaulted in payment of rent for more than four months within a period of 12 months. The plaintiff further contended that the plaintiff reasonably required the suit premises and she had no suitable alternative accommodation. She had been residing in one room belonging to her mother -in -law but the said accommodation was quite insufficient because the plaintiff's family consisted of the plaintiff, her husband and an adult son. It was also contended that the tenancy was determined by notice to quit and such notice was served on the defendants by registered post and such notice was received by them by putting their signatures on the acknowledgement cards. The plaintiff also contended that the brother of the plaintiff's husband who was a Doctor, after return from abroad, also started residing in the house of her mother -in -law and it become very difficult to accommodate the said brother and to provide suitable accommodation for his chamber. It, however, appears that subsequently in view of the order passed in a proceeding under Sec. 17(2) of the West Bengal Premises Tenancy Act in the suit, the plaintiff gave up the case for eviction on the ground of default. It may also be noted that an application for amendment of the plaint was allowed by the learned trial Judge and by such amendment the plaintiff contended that in view of the extreme bitterness with her mother -in -law and other members in the said house for want of proper accommodation the plaintiff had to leave the said house of her mother -in -law and she was compelled to reside in a flat belonging to her elder sister as her licensee in Behala. The aforesaid suit was contested by the defendant appellant by filing a written statement inter alia disputing the allegations made in the plaint. An application for amendment of the written statement made by the defendants was allowed by the learned trial Judge and by the amendment of the written statement the defendants further contended that the original tenant Aswini Kumar Chose having died, his interest devolved not only on the defendants who were his son and one of the daughters but such interest in tenancy also devolved on two other daughters. No name and other particulars of the other daughters were however disclosed in the additional written statement. At the hearing of the suit, the husband of the plaintiff deposed to the effect that the plaintiff and the members of the family reasonably required the suit premises and the premises belonging to the mother -in -law of the plaintiff had been sold and before the sale of the said property because of the family dispute for want of accommodation the plaintiff had to leave the suit premises and she had been residing in a flat belonging to her sister at Behala. The Secretary of the Cooperative Housing Society under which such flats belong, has been examined by the plaintiff as an witness and it has been stated in deposition by the said Secretary that without the permission of the Go -operative Society such flat cannot be let out to any tenant and the plaintiff and the members of her family were residing in the said flat belonging to a member of the Co -operative Society as a licencee of such member. The husband of the plaintiff has further stated in his deposition that the son of the plaintiff being grown up has since been married and a son has also been born to him. Accordingly, there is urgent need of accommodation for the plaintiff, her husband and son and daughter -in -law and the grandson and precisely for the said purpose, the decree for eviction on the ground of reasonable requirement should be passed. On behalf of the defendants, the husband of the defendant no. 1 deposed and it was stated by the husband of the said defendant no. 1 that the plaintiff had suitable alternative accommodation in the house belonging to her mother -in law and the husband of the plaintiff and that the original tenant Aswini Kumar Ghose having died, the interest in tenancy devolved on the defendants and one of the daughters who was then living and the heirs of a pre -deceased daughter. It was stated by the said husband that two of the grand daughters of the said Aswini Kumar Ghose had in fact stayed with the said Aswini Kumar Ghose while he was alive. The husband of the defendant no. 1 also stated in his deposition that no notice determining the tenancy had been served on any of the defendants and the signatures on the postal acknowledgment receipts were not the signatures of the defendants. The learned trial Judge on comparison of the admitted signatures of the defendants on other documents in the suit, with the signatures in the letters written by the said defendants after the death of Aswini Kumar Ghose to the effect the they became the tenants and the rent receipt should be issued to them and also with the signatures of the defendants appearing on the postal acknowledgment receipts by which the notices of eviction were stated to have been served on the said defendants, came to the finding that the said letters had been written by the said defendants and they also accepted the service of the notice by registered post by putting their signatures. The learned trial Judge also came to the finding that the plaintiff had no suitable accommodation and she had been residing in two rooms in flat at Behala only as a licencee of her elder sister because of want of any accommodation and the plaintiff and the members of the family reasonably required the suit premises. It appears that a serious dispute was raised before the learned trial Judge that since the other heirs of the original tenant of Shri Aswini Kumar Ghose had not been impleaded in the suit and no notice determining pendency of the disputed premises had been issued and served on the said other heirs, the suit for eviction was not maintainable. The learned trial Judge, however, came to the finding that at no point of time, the defendants disclosed the names of other heirs of late Aswini Kumar Ghose. On the contrary, the defendants informed the plaintiff landlady that they become the tenants after the death of their father Sri Aswini Kumar Ghos'e and rent receipts should be issued in their names. In the aforesaid circumstances, the learned trial Judge held that there was no question of giving any notice determining the tenancy on the alleged other heirs and the suit was therefore maintainable in the absence of the said other heirs. In that view of the matter, the learned Judge decreed the suit for eviction on the ground of reasonable requirement and the instant appeal has been preferred by the defendants appellants.

(2.) Mr. Dasgupta, the learned counsel for the appellant has strenuously contended before us that the tenancy right being heritable, such right had developed on all the heirs of the original tenant, Sri Aswini Kumar Ghose. He has submitted that it is not the case that sri Aswini Kumar Ghose was a statutory tenant after the determination of contracts tenancy. Admittedly, the original tenant had died during the continuance of the contractual tenancy. In such circumstances, all the heirs of Sri Aswini Kumar Ghose had inherited the tenancy lights and all of them became tenants -in -common. Accordingly, it was the bounded duty of the plaintiff landlady to determine tenancy by issuing notice to all the said heirs, but admittedly such notice of determination of tenancy had been served only on defendants nos. 1 and 2 and the other heirs not being impleaded as parties defendants in the suit, the suit was bound to fail for want of proper determination of the tenancy of all the tenants and for not impleading necessary parties in the suit. In support of this contention, Mr. Dasgupta has referred to a Bench decision of this Court made in the case of Krishna Dhone Pramanik v/s. Ram Palat Sahoo reported in : 84 CWN 447. It has been held in the said decision that Sec. 2(h) of the West Bengal Premises Tenancy Act only refers to such heirs of statutory tenancy who had been living with the statutory tenant at the time of his death, but where the contractual tenant dies before the institution of the suit, all the heirs of the deceased contractual tenants are tenants under the West Bengal Premises Tenancy Act. He has also referred to another Bench decision of this Court reported in, I.L.R. 1966(1) Cal 252. In the said case, after the death of a contractual tenant the landlord issued rent receipts in respect of only one of the heirs of the original tenant and after determination of the tenancy in respect of the said heir, the suit for eviction was instituted. The question arose for consideration before this Court as to whether or not the suit was maintainable in the absence of the other heirs. It was held in the said decision that the said suit was bad for want of necessary parties, namely, the other heirs of the original tenant. It was, however, held in the said decision that the notice for determination of tenancy was required to be issued in the name of all the co -tenants but service of such notice on one of the tenant was sufficient. Mr. Dasgupta has also referred to another Bench decision of this court made in the case of Ajit Kumar Roy v/s. Satya Bala Duti reported in : 78 CWN 19. Referring to the provision of Sec. 19 of the Hindu Succession Act, the Division Bench held in the said case that all the heirs of a contractual tenant would inherit the tenancy right and they would become tenants -in -common. Hence, notice of termination must be addressed to all the heirs but service could be effected on some and it was not necessary to serve on all the said tenants -in -common. Mr. Dasgupta contended that it was the bounden duty of the plaintiff landlady to enquire, on being intimated by the defendants about the death of the original tenants Shri Aswini Kumar Ghose, about the names and particulars of all the heirs of the said Aswini Kumar Ghose because all such heirs became tenants in common in respect of the disputed tenancy. The landlady failed and neglected to make such enquiries and had only determined the tenancy of two tenants -in -common namely the defendant nos. 1 and 2 and brought the suit for eviction only against the said tenants -in -common. Accordingly, on the admitted position, the suit was bound to fail and the learned trial Judge was wrong in holding that the suit was maintainable and decree for eviction should be passed. Mr. Dasgupta has also contended that it has been only brought in evidence on behalf of the plaintiff that the plaintiff and the members of her family had been residing in a flat belonging to her sister as a licencee. Unless it can be established to the satisfaction of the court that licence was a precarious licence, the plaintiff was not entitled to get the decree for eviction on the ground of reasonable requirement for want of any suitable alternative accommodation. This important aspect of availability of alternative suitable accommodation has not been taken into consideration by the learned Judge in the proper perspective.

(3.) Mr. Mitter, the learned counsel for the plaintiff has however submitted that on the face of the evidence that for want of suitable accommodation, the entire family of the plaintiff has been forced to live as a licencee of her sister in two rooms of the flat of her sister at Behala which was away from the disputed premises and from her place of work, the case of want of suitable accommodation has been convincingly established. Any temporary accommodation given to a relation by way of a licencee cannot be held to be a suitable alternative accommodation. Therefore, the learned Judge was justified in holding that the plaintiff reasonably required the premises for her occupation and also for the occupation of the members of the family. Mr. Mitter has also submitted that at the time of hearing of the suit the family of the plaintiff consists of plaintiff herself, her husband, a grown up son, his wife and a child. For such composition of the family, occupation of two rooms in the said flat at Behala is not sufficient. Mr. Mitter has further contended that the defendants after the death of the original tenant Aswini Kumar Ghose did not inform the plaintiff that there were others heirs of the deceased original tenant. On the contrary by two separate letters written by both the defendants they informed the landlady that they had become the tenants after the death of the original tenant and rent receipts should be issued in their name. Although attempts were made by the defendants to deny the writing of such letters (Ext. 7 series), the learned Trial Judge on comparison of the admitted signatures of the defendants with the signatures appearing on the said letters has held that the said letters had been written by the said defendants. Mr. Mitter has also before this Court that the defendants although asserted that such letters had not been written, they did not take any step to get the signature appearing in those letters verified by any handwriting expert and such inaction on the part of the defendants has been rightly commented upon by the learned Trial Judge. Mr. Mitter has further contended that tenancy right is heritable and the heirs of the deceased tenant inherit such tenancy right but simply because such tenancy right is heritable, such tenancy cannot be imposed on any of the heirs inheriting such tenancy right against the will of such heir. It is entirely a discretion on the part of such heir of the original contractual tenant either to accept the heritable right of tenancy and/or to denounce the same. Mr. Mitter has contended that none of the other alleged heirs of Aswini Ghose has been residing in the suit premises at the time of death of the original tenant or at the time of determination of tenancy and none of them had ever exercised the right of tenancy by claiming such right and/or by making any payment of rent. On the contrary, only the defendant nos. 1 and 2 claimed the tenancy right by inheritance and by writing letters to the plaintiff landlady requested the plaintiff landlady to issue rent receipts in their names. In such circumstances, it must be held that the defendant nos. 1 and 2 only accepted the right of tenancy on the basis of the heritable right of such tenancy. In this connection, Mr. Mitter has referred to a Bench decision of this Court in the case of Uma Roy v/s. Smt. Maghmala Dey & Anr., reported in, 1988(2) Calcutta Land Journal 128. In the said case, all heirs of the original tenant were impleaded but later on the names of all the other heirs excepting two daughters were struck off. The question arose for consideration before this Court as to whether or not the suit was maintainable in the absence of other heirs whose names had been struck off. It was held in the said decision that although the tenancy is heritable but such tenancy cannot be imposed upon the heirs, of the original tenant and if any tenant abandons or relinquishes such right such heir ceased to be a tenant. In the said case, however, the defendants in their written statement accepted the position that the defendant nos. 3 and 4 whose names were not struck off were the only tenants and others had surrendered the tenancy. Accordingly it was held that the suit was maintainable in the absence of such heirs. Mr. Mitter also has referred to a recent decision of Supreme Court made in the case of H. C. Pandey v/s. G. C. Paul reported in : AIR 1989 SC 1470. In the said case, on the death of original tenant, besides the respondent in the Appeal" before the Hon'ble Supreme Court, there were other heirs of the original tenant namely the mother, brothers and sisters of the respondent. A notice for determination of the tenancy under Sec. 106 of the Transfer of Property Act was issued only in the name of respondent and such note was not served and addressed to any other heir. The suit for eviction was filed against the respondent, namely, one of the sous of he original tenant. The question arose for consideration before the Supreme Court as to whether or not such notice for determination not laving been addressed to other heirs of the original tenant was a valid notice and whether or not the suit for eviction instituted only against one of the heirs was maintainable. It has been held by the Hon'ble Supreme Court in the said decision 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 all the heirs of the deceased tenant. The incidence of the tenancy are the same as those enjoyed by the original tenant. But it is a single tenancy which devolves on the heirs. There is no division of the premises or of the rent payable therefore. That is the position as between the landlord and the heirs of the deceased tenant. In other words, the hers succeed to the tenancy as joint tenants. The Supreme Court over -rued the decision of the Allahabad High Court reported in : AIR 1977 All 38 wherein it was held that the heirs of the deceased tenant succeeded as tenants -in -common. Mr. Mitter has submitted by relying on the decision of the Supreme Court that as all the heirs of the original contractual tenant were joint tenants such tenancy had in fact been represented by the defendants who had paid rent in respect of such joint tenancy. Accordingly, the determination of tenancy by issuing notice to the said defendants was a valid notice determining the joint tenancy and the suit for eviction instituted against the defendants representing the joint tenancy was also maintainable.