Shri Chandra Nath Chandra vs Shri Buddhadeb Halder on 5 February, 2020

[Cites 17, Cited by 1]

Calcutta High Court (Appellete Side)

Shri Chandra Nath Chandra vs Shri Buddhadeb Halder on 5 February, 2020

Dated: 5th February, 2020 Soumen Sen, J.:- The appeal is arising out of a decree passed by the learned Judge, City Civil Court at Calcutta in Title Suit No. 1314 of 2012 in a suit for eviction of the defendant/respondent on revocation of licence.

One Kanai Lal Chandra during his lifetime was the absolute owner of several properties including a tenancy in respect of a stationery, grocery shop in the front portion and one godown in the ground floor at 123/1, Bipin Behari Ganguly Street, P.S.- Muchipara, Kolkata - 700 012 under the landlord, namely, Hoplal Mathur Vaishya Charitable Trust. The said Kanai Lal Chandra died intestate on 27th January, 1977. His widow Bibhabati Chandra also died intestate on 22nd November, 1986, 2 leaving behind fourteen heirs, heiresses and legal representatives. Upon the death of Kanai Lal Chandra and Bibhabati Chandra, all the legal heirs, by operation of law, became the joint owners of all the properties and became tenants-in-common in respect of the suit property, being shop room no. 10 at 123/1, Bipin Behari Ganguly Street, Kolkata. On 24th September, 1990, a registered partition deed was executed between the said fourteen legal heirs. By virtue of the said deed of partition, the shop room was allotted to two sons of Kanai Lal Chandra, Sri Chandra Nath Chandra and Sri Biswanath Chandra, since deceased, in the manner following:-

"Sri Chandra Nath Chandra (Fourteenth party therein) was allotted the Eastern Side being Lot "A" of the main shop room in tenancy right in all that a stationery shop and grocery shop room at the front road side in the ground floor at premises No. 123/1, Bipin Behari Ganguly Street, Kolkata - 700012 under the landlord namely Hoplal Mathur Vaishya Charitable Trust;

Sri Biswanath Chandra (Thirteenth party therein) was allotted all that back portion godown (rooms being Lot "C") in tenancy right in all that one godown in the back portion in the ground floor at premises No. 123/1, Bipin Behari Ganguly Street, Kolkata - 700012 under the landlord namely Hoplal Mathur Vaishya Charitable Trust." (emphasis supplied) On the basis of the said deed of partition, Chandra Nath and Biswanath claimed to be joint tenants in respect of the property in question. Biswanath died on 16th December, 2011 as a bachelor. The defendant is the nephew of the plaintiff. It is alleged that in the month of 3 September, 2011, the defendant approached the plaintiff for permitting him to store his goods in the portion of the said tenancy of the plaintiff, temporarily and free of cost, assuring that he would remove the same within a very short time and that he would arrange an alternative space in the meantime. On the basis of such assurance and taking into consideration the relationship between the parties, the plaintiff permitted the defendant to store his goods temporarily in a portion of the aforesaid premises purely as licensee under the plaintiff, free of cost.

Since the defendant did not remove the goods within a reasonable period of time, the plaintiff, upon notice, revoked the license and sued for recovery of possession of the suit premises. The defendant filed its written statement in the suit. Before the learned Trial Judge, the defendant had contended that the plaintiff cannot have any right in respect of the Lot 'C' property allotted to Biswanath in view of the partition and accordingly, he was not entitled to an eviction decree in respect of Lot 'C' of the premises. The learned Trial Judge, relying upon the registered partition deed, arrived at a finding that since the plaintiff could not establish his right in respect of Lot 'C' property, the suit must fail, and, accordingly, dismissed the suit.

The learned Counsel appearing on behalf of the appellant has argued that the learned Trial Judge has completely misconstrued the deed of partition and has interpreted the law incorrectly without understanding the nature and scope of joint tenancy. It is submitted that the parties knew since 1988 that it is a joint tenancy of Chandra 4 Nath and Biswanath, and splitting of tenancy is unknown in law. It is submitted that, in absence of any evidence to the contrary showing that the other legal heirs of the original tenant had exercised any right of tenancy in respect of the property in question, the nature of tenancy under the present facts and circumstances of the case should be treated as a joint tenancy and if there are only two joint tenants the survivor is to be considered only as tenant. In this regard, Mr. Raut has relied upon the following passage from the commentaries on West Bengal Premises Tenancy Act, 3rd Edition by S.P. Sengupta:-

"(f) Joint Tenant and Tenants-in-Common: Distinction between them: Joint tenancy is 'an estate in fee-simple, fee-tail, for life, for years, or at will, arising by purchase or grant to two or more persons. Joint tenants have one and the same interest, accruing by one and the same conveyance, commencing at one and the same time, and held by one and the same undivided possession. The primary incidence of joint tenancy is survivorship, by which the entire tenancy on the deceased of any joint tenant remains to the survivors, and at length to the last survivor' - Black's Law Dictionary.

'The death of one joint tenant creates no vacancy in the seisin or possession. His interest is extinguished. If there were only two joint tenants, the survivor is now seised or possessed of the whole. It there were more than two, the survivors continue to hold as joint tenants. This incident, which is called the jus accrescendi, is the most important feature of joint tenancy' - Halsbury's Laws of England, 4th Ed., pp.351, 531. (emphasis supplied) The learned counsel has also relied upon the Division Bench judgment in Sumilita Bhattacharya & Anr. vs. Nila Chatterjee, 5 reported in 1989(2) CLJ 351, for the proposition that persons who do not exercise their right of joint tenancy after the death of the original tenant in any manner cannot be said to be joint tenants and such tenancy rights of such other legal heirs may be considered to be abandoned or relinquished by the heirs of the original tenants. In similar vein, learned counsel for the appellant has relied Pushpa Rani & Ors. vs. Bhagwanti Devi & Anr., reported in AIR 1994 SC 774 and Smt. Madhubala vs. Smt. Budhiya & Anr., reported in AIR 1980 All 226.

Mr. Raut has taken us through the evidence of the defendant to show that the defendant, in fact, had admitted during his cross-examination that his mother consciously had put her signature in the registered deed of partition relinquishing her right in the property. Chandra Nath and Biswanath were the joint tenants in respect of the property in question and the mother of the defendant Ana bela Halder had no connection with the tenancy right. It is thus argued that on such consideration, the right of the plaintiff to recover possession of the property in question could not have been denied by the learned Trial Judge. Per contra, Mr. Tanmoy Mukherjee, the learned Counsel on behalf of the defendant, submits that the concept of joint tenancy is unknown in Hindu Law unless the parties are governed by the Mitakshara School of Hindu Law. In view of the fact that parties are governed by the Dayabhaga School of Hindu Law, the tenancy right devolves upon all the 6 heirs of Biswanath Chandra, upon his death. It is submitted that in view of the partition deed, which has been conveniently suppressed in the plaint, there is a split of the tenancy between the two brothers and on the death of Biswanath, succession in relation to the shares of Biswanath opens. Since Biswanath died a bachelor, the mother of the plaintiff was entitled to succeed to such tenancy rights. The learned Counsel further submits that the plaintiff had suppressed the partition deed in tracing his right to the tenancy. The deed clearly shows that the plaintiff has no interest over the entirety of the shop room. The plaintiff has not even pleaded surrender of tenancy by any of the legal heirs in favour of the plaintiff in respect of the suit premises after the death of Biswanath. It is submitted that except in the case of Hindu joint coparcenary governed by the Mitakshara School of Hindu Law, the tenancy is considered as tenancy-in-common and not as joint tenancy and, in case of tenancy-in-common, the right of the mother of the defendant to inherit the tenancy right upon the death of Biswanath could not be denied. In this regard the learned counsel has relied upon judgments in the case of Kumar Jagdish Chandra Sinha & Ors. vs. Eileen K. Patricia D'Rozarie (Mrs.), reported in (1995) 1 SCC 164, Amar Nath Pramanick vs. Sanjib Das Gupta & Ors., reported in (2008) 3 CHN 962 and Krishna Dhone Pramnick vs. Ram Palat Sahoo, reported in 1980 (1) Cal LJ 346.

We have heard the learned counsel for the parties.

We have gone through the pleadings as well as the evidence on record. The right to the tenancy is based upon the deed of partition followed by the rent receipts issued by the landlord apparently in the joint name of Chandra Nath and Biswanath. A plain reading of the partition deed shows that the two brothers for the purpose of convenience have mutually divided the said property for carrying their respective business, with other legal heirs relinquishing their right to claim tenancy. The landlord has issued one rent receipt in the joint name of Chandra Nath and Biswanath treating the said unit of tenancy as one single unit. All the rent receipts subsequent to 1990 would show that the landlord had recognised Chandra Nath and Biswanath to be the joint tenants in respect of the property in question. This clearly shows that all other legal heirs of the original tenant had surrendered their tenancy right in respect of the property in question in favour of both the brothers. In a given situation, law recognises that implied surrender of other heirs in respect of the tenancy right can be inferred. It is clear from the partition deed that all the heirs including the mother of the defendant had relinquished their right in respect of the said property in question. The defendant in his written statement has also admitted in paragraph 5(g) that her mother had no interest in the property in question. The said paragraph 5(g) is reproduced hereinbelow:-

"g) It was the desire of Biswanath Chandra that his sister Ana Bela Halder should get the area occupied by him as tenant. Be it mentioned here that although rent receipt was being issued in the joint name but in fact both the tenants had 8 been occupying separate area as mentioned in the deed of partition. Said B. Chandra, at his lifetime allowed his sister to occupy the tenanted area and in terms the mother of the defendant i.e. Ana Bela Halder allowed the defendant to run business from the said tenanted area."

Even if it is assumed that the said statement is correct, it only shows that Biswanath allowed his sister to occupy the said portion of the premises during his lifetime which is possible only with the consent of other brother as it is a joint tenancy. It is also judicially recognised that allowing a close relative to stay temporarily would not create any right in respect of such close relative over any property in question [See Sumilita Bhattacharya (supra)]. The said decision also recognises that upon the death of the original tenant if some of his heirs remain silent and never claimed any tenancy right, in respect of those other legal heirs, tenancy stands impliedly surrendered or relinquished. The same is also reiterated by the Hon'ble Supreme Court in Pushpa Rani (supra). In the instant case, it is not in dispute that only two sons of the original tenant occupied the premises in question for the purpose of carrying on business. The evidence of the defendant is also interesting as it would go to show that he had accepted virtually that his mother was not entitled to any tenancy right in respect of the property in question. During his cross-examination he has stated that Biswanath was a tenant in respect of back portion of the godown, however, he was unable to prove the same. On the contrary, the evidence of the plaintiff is that although for the purpose of convenience the original tenants have created a division, 9 but for all practical purposes it was one unit. This evidence has not been demolished. The defendant during cross-examination has admitted that Ana Bela Halder had no connection with the tenancy and was a housewife. There is no written document to show that Biswanath had intended to transfer his tenancy right in favour of Ana Bela Halder. He was also unable to show as to whether Biswanath during his lifetime had approached the landlord to transfer the tenancy right of the said godown in favour of Ana Bela Halder.

However, the question arises whether upon the death of Biswanath the legal heirs of Biswanath would inherit the tenancy rights or it would devolve upon Chandranath being the only survivor of the joint tenancy. The argument of Mr. Rout is based on the principle that by reason of the death of Biswanath his interest is extinguished and Chandranath being only survivor of the joint tenancy should be held to be seized or possessed of the whole tenancy.

The judgments cited at the bar are primarily on the issue as to whether all the legal heirs of the deceased original tenant would be required to be served with the notice of eviction irrespective of the fact that some of the heirs of the original tenant may not be residing with the original tenant at the time of his death. In deciding the said issues, the Courts have discussed the effect and consequence of death of the original tenant in relation to his legal heirs. In deciding such issue, the Courts have discussed whether such legal heirs should be treated as joint tenants or tenants-in-common.

The difference between joint tenants and tenants-in-common has already been discussed. For the sake of brevity, we may refer to the following passages from Woodfall's Law of Landlord and Tenant, 25th Ed. pp. 63 and 65, which are quoted:

"Joint tenants have unity of title, unity of commencement of title, unity of interest, so far as in law to have equal shares in the joint estate, unity of possession, as well as of every part as of the whole, and right of survivorship".

The question often arises is whether the tenants holding a tenancy after demise of the original tenant are joint tenants or tenants-in-common. A three Judge Bench of the Hon'ble Supreme Court in Boddu Venkata krishna Rao v. Boddu Satyavathi, reported in AIR 1968 SC 751 has considered the principle of joint tenancy and has held in paragraph 5 as under:

"5. Let us now considered the position in law. The law has been summarised in Mulla's Transfer of Property Act (5th Edi) at p.226. As early as 1896 it was held by the Judicial Committee of the Privy Council in Jogeswar Nrain Deo v. Ram Chund Dutt that: (SCC Online PC) 'The principle of joint tenancy appears to be unknown to Hindu Law except in the case of coparcenary between the members of an undivided family.' and that it was not right to import into the construction of a Hindu will an extremely technical rule of English conveyancing. Many years later the principle was reiterated in Bahu Rani v. Rajendra Bakhsh Singh."

The principle laid down in the aforesaid judgment shows that in India, especially among Hindus, the Courts strongly leans against holding any particular grant as a joint grant. This principle was subsequently reiterated by the Hon'ble Supreme Court in Textile Association (India) vs. Bal Mohan Kurupd, reported in 1990 (4) SCC 700. Even in a decision subsequent to Boddu Venkata Krishna Rao (supra) the Supreme Court in Syed Shah Gulam Ghouse Mohiuddin vs. Syed Shay Ahmed Mohiuddin Kamisul Qudrihe, reported in AIR 1971 SC 2184 reiterated the above principle. However, in Kanji Manji vs. Port of Bombay, reported in 1963 SC 468, H.C. Pandey vs. G.C. Paul, reported in 1989 SC 1470 and Kumar Jagdish Chandra vs. Eileen - K. Patricia - D. Rosario, reported in 1995(1) SCC 146 it was held that the heirs of the deceased tenant succeed to the tenancy as joint tenants. In H.C. Pandey (supra) the Supreme Court in paragraph 4 has observed as follows:

"4. It is now well settled that on the death of the original tenant, subject to any provision to the contrary either negativing or limiting the succession, the tenancy rights devolve on the heirs of the deceased tenant. The incidence of the tenancy are the same as those enjoyed by the original tenant. It is a single tenancy which devolves on 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. In the present case it appears that the respondent acted on behalf of the tenants, that he paid rent on behalf of all and he accepted notice also on behalf of all. In the circumstances, the notice served on the respondent was sufficient. It seems to us that the view taken in Ramesh Chand Bose is erroneous 12 where the High Court lays down that the heirs of the deceased tenant succeed as tenants-in-common. [In the Transfer of Property Act notice] served by the appellant on the respondent is a valid notice and therefore the suit must succeed."

A Bench of three-Judge of the Hon'ble Supreme Court in Harish Tandon vs. Addl. District Magistrate, Allahabad, reported in 1995 (1) SCC 537 after noticing H.C. Pandey (supra) has held that it is difficult to hold that after the death of the original tenant his heirs become tenants-in-common and each one of the heirs shall be deemed to be an independent tenant in his own right.

The view of our High Court on this is not uniform.

In Sumilita Bhattacharya (supra) it was held that the heritable tenancy rights may be accepted or abandoned or relinquished by the heirs of the original tenants. Such tenancy right may be surrendered either expressly or by conduct of the parties. In the aforementioned case it was found that the heirs of the pre-deceased daughter and the other married daughter of the original tenant had never exercised any right of joint tenancy in the disputed premises after the death of the original tenant namely, Aswini Kumar Ghosh. On the contrary only the defendants asserted such right and claimed to be the tenant by way of inheritance of the tenancy right and they requested the plaintiff/landlady to issue rent receipt in their names and rents were also paid by them.

Even in the additional written statement the names of the other heirs, the deceased Aswini Kumar Ghosh was not disclosed and it had not been stated either in the original written statement or in the additional written statement that such heirs had also expressed their rights in tenancy, after the death of the original contractual tenant. It was observed that:-

"It has been held by the Supreme Court in H.C. Pandey's case that a suit in respect of the joint tenancy by issuing notice determining the tenancy to only one of the heirs of the original tenant and impleading only one of such heirs and leaving aside the other heirs is maintainable because the joint tenancy of the heirs of a deceased tenant is represented by one of the heirs who is also one of the joint tenants. In our view, the decision of the Supreme Court squarely applies to the facts of this case more so when the alleged heirs had never come forward to assert their heritable right in the joint tenancy and the Defendants 1 and 2 had only exercised such heritable right of tenancy and had paid rents for such tenancy right. In such circumstances, even assuming for the argument's sake that the alleged heirs had become joint tenants in respect of the tenancy after death of the original contractual tenant and they had not surrendered and/or relinquished their tenancy right, the defendants must be held to have represented the other joint tenants. We, however, hold that in the facts of the case the other alleged heirs of Aswinin Ghosh by their conduct, must be held to have relinquished and/or abandoned their heritable right in the joint tenancy. Accordingly, the determination of tenancy by issuing notice to the defendants was sufficient and the suit for eviction against the defendants representing the joint tenancy is also maintainable and the decree for eviction binds all the joint tenants."

However, later decision in Amal Krishna Aditya vs. Ganesh Chandra Das, reported in 1998 (1) CHN 521 and Amar Nath Pramanick (supra) followed Boddu Venkata Krishna (supra) and held that the decision in H.C. Pandey (supra) cannot be treated as a valid precedent in view of the law laid down in the Textile Association (supra). In Amar Nath Pramanick (supra) it was observed that Sumilita Bhattacharya (supra) was delivered at a point of time when the decision in the case of Textile Association (supra) was not delivered and in view of the decision of Textile Association (supra), the aforesaid Division Bench decision taking a contrary view is no longer good law. It was observed in paragraph 21 in Amar Nath Pramanick (supra):-

"21. Thus, it is clear that only except the case of Hindu Joint Coparcenaries governed by the Mitakshara School of Hindu law in India, the tenancy is inherited as a tenancy in common and not as a joint tenant and in case of tenancy in common, the notice must be addressed to all the tenants-in-common and the principles that the notice addressed to all but served upon one of them is sufficient applies to both the joint tenancy and the tenancy in common. (See in this connection, the observations of the Division Bench of this Court consisting of Arun Kumar Mukherjee and M.M. Dutt, JJ., as Their Lordships then were, in Ajit Kumar Roy v. Satya Bala Roy reported in AIR 1973 Cal 339). In the case before us, the notice was admittedly addressed only to Salil, one of the tenants-in-common and, therefore, the suit was not preceded by a valid notice to quit."

'Tenancy-in-common' is a form of ownership whereby each tenant (i.e. owner) 'holds an undivided interest in property. Unlike a joint tenancy or a tenancy by the entirety, the interest of a tenant in common does not 15 terminate upon his or her prior death (i.e. there is no right of survivorship). Assume, for example, B and C acquire real estate as equal tenants-in-common, each having furnished one half of the purchase price. Upon B's prior death, his one-half interest in the property passes to his estate or heirs.' Accordingly, tenants-in-common are those 'tenants who hold the same land together by several and distinct titles, but by unity of possession, because none knows his own severalty and, therefore, they all occupy promiscuously. Where two or more hold the same land, with interest accruing under different titles, or accruing under the same title, but at different periods or conferred by words of limitation importing that the grantees are to take in distinct shares' - See Black's Law Dictionary, 6th Ed., pp. 1465-66.

Halsbury's Laws of England (Vol. 32, p. 332) has stated that joint tenants are those who form one body of ownership. Each tenant has an identical interest in the whole land and every part of it. The title of each arises by the same act. The interest of each is the same in extent, nature and duration. Thus joint tenancy connotes four ideas - unity of title, unity of possession, unity of interest and unity of commencement of title. In a tenancy-in- common also there may be unity of possession and where title is derived from a common sale deed or by inheritance from one person it might very well commence at one and the same time. However, other ingredients which would be the main ingredients of the joint tenancy would be missing.

Most of these decisions were considered in a fairly recent decision of the Hon'ble Supreme Court in Suresh Kumar Koel vs. Rakesh, reported in 2018 (6) SCC 708. The Hon'ble Supreme Court on consideration of almost all the judgments on the point of service of notice upon all the legal heirs of the original tenant has held as under:

"24. We are of the view that in the light of H.C. Pandey, the situation is very clear that when original tenant dies, the legal heirs inherit the tenancy as joint tenants and occupation of one of the tenants is occupation of all the joint tenants. It is not necessary for the landlord to implead all legal heirs of the deceased tenant, whether they are occupying the property or not. It is sufficient for the landlord to implead either of those persons who are occupying the property, as party. There may be a case where landlord is not aware of all the legal heirs of the deceased tenant and impleading only those heirs who are in occupation of the property is sufficient for the purpose of filing of eviction petition. An eviction petition against one of the joint tenants is sufficient against all the joint tenants and all joint tenants are bound by the order of the Rent Controller as joint tenancy is one tenancy and is not a tenancy split into different legal heirs. Thus, the plea of the tenants on this count must fail."

The concept of joint tenancy and tenancy-in-common was summarised in paragraphs 14 and 15 of the report which reads:

"14.The issue at hand is what would be the status of the succeeding legal representatives after the death of the statutory tenant. In this regard, it would be worthy to discuss the two capacities viz. tenancy in common and joint tenancy, and the rights that one holds in these two different capacities. Fundamentally, the concepts of joint tenancy and tenancy in common are different and distinct in form and substance. The incidents regarding the co- tenancy and joint tenancy are different: joint tenants have unity of 17 title, unity of commencement of title, unity of interest, unity of equal shares in the joint estate, unity of possession and right of survivorship.

15. Tenancy in common is a different concept. There is unity of possession but no unity of title i.e. the interests are differently held and each co-tenant has different shares over the estate. Thus, the tenancy rights, being proprietary rights, by applying the principle of inheritance, the shares of heirs are different and ownership of leasehold rights would be confined to the respective shares of each heir and none will have title to the entire leasehold property. Therefore, the estate shall be divided among the co-tenants and each tenant in common has an estate in the whole of single tenancy. Consequently, the privity exists between the landlord and the tenant in common in respect of such estate."

The definition of tenant in Clause 2(g) of the West Bengal Premises Tenancy Act 1997 is new and it specifically mentions who will be statutory tenants after the death of the contractual tenant, whose tenancy has already been determined. A time limit (not exceeding 5 years and in case of deceased's spouse, up to his or her lifetime) is provided, beyond which they cannot continue as statutory tenants. It is thus clear from the scheme of the present Act that the statutory tenants will continue to possess as joint tenants and not as tenants-in-common. It appears from the decision of the Apex Court that the heirs of the deceased contractual co-tenants will have no interest in the tenancy. It appears to us that the tenancy vis-à-vis the landlord are joint tenants but as regards their inter se relationship the tenants are just like tenants-in-common.

This is reiterated in view of Section 19 (b) of the Hindu Succession Act 1986 which clearly states that if two or more heirs succeeded together to the property of an intestate, they shall take the property as tenants-in- common and not as joint tenants. However, it does not dilute the principle that where some of the heirs of the original tenant after the death of the original tenant had exercised their right of tenancy to the exclusion of others, the relationship between such tenants making such claim would be treated as joint tenants in relation to the landlord without requiring the landlord to serve upon notices to all who have not exercised their right of tenancy or has relinquished their rights otherwise it lead to absurdity as aptly explained in Harish Tandon (supra). In the instant case, the mother of the defendant has never claimed any tenancy right in respect of the property in a question. The defendant has failed to produce any documents to show that upon the death of his maternal uncle, his mother had ever asserted her right as tenant in respect of the portion under occupation of Biswanath. On the contrary the evidence on record shows that respondent wants to settle the matter amicably with no assertion of any right of tenancy. The deed of partition disclosed by the defendant only shows that both the brothers had agreed to demarcate their joint tenancy for their business convenience without disturbing the unit of tenancy. What was tenancy- in-common became joint tenancy on or after 24th September, 1990. They have treated tenancy as one and carried on their business as joint tenants. The landlord has also treated the plaintiff and his brother as 19 joint tenants. All the legal heirs of the original tenant had relinquished their right in respect of the suit property in favour of the appellant. Once the mother of the defendant as legal heirs of the original tenant had relinquished her right in the tenancy in favour of her brother, her son cannot claim any such right.

There is no evidence on record to show that upon the death of Biswanath the defendant or his mother tendered any rent to the landlord or asserted their tenancy right in respect of the property in question not even a single letter to the landlord asserting any such right:

In fact, by reason of relinquishment of any right in the suit property by the mother of the defendant as reflected from the deed of partition it is not open to the defendant to assert any right in respect of the suit premises. The defendant has no independent right.

The most prominent feature of a joint tenancy is the incident of survivorship called jus accrescendi: that on the death of one of the joint tenants, his interest is extinguished and the survivors continue as joint tenants. If there is ultimately one survivor, he becomes seized of the whole interest. On the death of the last survivor, the whole land devolves on his heirs or by devise. In a tenancy-in-common, each tenant holds an undivided share, not necessarily equal in respect of which he is precisely in possession of the ownership of that share. On the death of a tenant-in-common, his estate does not pass to the survivors but devolves on his heir or passes under his will.

The argument that Sub-Clause (b) of Section 19 has totally done away with the principle of joint tenancy in the matter of succession of a Hindu male or female dying intestate is not acceptable since the mother of the defendant had already relinquished her right in respect of the suit premises and the appellant and his brother continued to remain as joint tenants to the exclusion of all other heirs.

Under such circumstances the appeal is allowed.

The decree of the Trial Court is set aside. There shall be decree for recovery of vacant possession of the suit premises. In the event the defendant vacates and hands over vacant possession within sixty days from date, the appellant considering the relationship between the parties has agreed not to claim mesne profits, in default, the Trial Court shall appoint an advocate commissioner for determination of mesne profit.

I agree (Soumen Sen, J.) (Saugata Bhattacharyya, J.)

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