Calcutta High Court
Amal Krishna Aditya vs Ganesh Chandra Das on 2 March, 1998
Equivalent citations: AIR1998CAL221, AIR 1998 CALCUTTA 221, (1999) 2 RENTLR 297, (1998) 1 CAL HN 521, (1998) 4 ICC 232
JUDGMENT N.K. Mitra, J.
1. This appeal has been preferred by the defendant/appellant against the judgment and decree dated 13th February, 1985, passed in favour of the plaintiff/respondent by the learned Judge, VIII Bench, City Civil Court at Calcutta, in Ejectment Suit No. 2 of 1976.
2. The plaintiff/respondent filed Ejectment Suit No. 2 of 1976 in the City Civil Court at Calcutta against the defendant/appellant for his eviction from one room on the first floor and one room and a kitchen on the second floor of the premises No. 33/C, Haralal Das Lane, Calcutta-700 006, (hereinafter referred to as the 'suit premises') inter alia, on the ground of reasonable requirement.
3. The case as made out by the plaintiff/ respondent in the plaint inter alia, was that the plaintiff/respondent was the owner of the suit premises and the defendant/appellant was a monthly tenant under him in respect of one room on the first floor and one room and a kitchen on the second floor at a rental of Rs. 20/- per month payable according to the English Calendar. The suit premises was reasonably required by the plaintiff/respondent for his own use and occupation and also for the use and occupation of his family members, and that the defendant/ appellant had illegally converted the kitchen, which was let out to him, into a living room and had been using the space within his tenancy for cooking purpose, thereby causing damage to the suit premises. In the plaint, the plaintiff/ respondent stated further, that his family consisted of 5 (five) members namely, himself, his wife and his three sons aged about 22 years, 20 years and 17 years respectively; that the plaintiff/ respondent was in occupation of only one room and a kitchen in the same premises, which was most insufficient and unsuitable to meet the minimum demands of the plaintiff/respondent; that the second and third sons of the plaintiff/ respondent were students and they had no living room nor any room for study; that the sons of the plaintiff/respondent lived and resided in one room belonging to the brother of the plaintiff/respondent in the same premises; that the marriage negotiation of the plaintiff/respondent's eldest son was going on, but it could not be materialised for want of accommodation, inasmuch as, in that case, one room would be required for his eldest son alone, and one room was also required by the plaintiff/ respondent for using as Thakurghar. The plaintiff/ respondent determined the tenancy of the defendant/appellant by a notice to quit but the defendant/appellant failed to comply with the same.
4. The defendant/appellant contested the suit by filing written statement denying and disputing the allegations of the plaintiff/respondent as made out in the plaint. In the written statement, it was stated inter alia, that the tenancy of the suit premises previously belonged to Sri Mahindra Nath Aditya, the father of the defendant/appellant and on his death, the said tenancy devolved upon his heirs and legal representatives namely, Amal Kanti Aditya, Kamal Kanti Aditya, Mukul Aditya and Chanchal Aditya and since the death of Manindra Nath Aditya, the said heirs are holding the disputed tenancy, as joint tenants. The defendant/appellant also denied the plaintiff/ respondent's plea of reasonable requirement of the suit premises and further stated that the occupation available to the plaintiff/respondent in the same premises was more than sufficient. The defendant/appellant also alleged that the ejectment notice was bad in law and the suit as framed was also not maintainable.
5. Subsequently, the written statement was amended and in the amended written statement, it was stated by the defendant/appellant that Manindra Nath Aditya, the father of the defendant/ appellant took tenancy of one room on the first floor and two rooms on the second floor of the suit premises in or about 1943 and the plaintiff/ respondent and his other two brothers namely, Kali Das and Krishna Das used to issue rent receipts in the name of Late Manindra Nath Aditya and a true copy of such rent receipt was also annexed to the additional written statement. After the death of Manindra Nath Aditya, the plaintiff/respondent used to issue rent receipts in the name of the sons of Late Manindra Nath Aditya, namely, Amal Krishna Aditya who was the defendant/appellant, Kamal Kanti Adiya, Mukul Aditya and Chanchal Aditya and a true copy of such rent receipt was also annexed to the additional written statement as an annexure, even a true copy of the earlier ejectment notice dated 8th December, 1955, issued by the plaintiff/ respondent in the names of the sons of the deceased tenant was also annexed to the additional written statement as an annexure. The defendant/appellant further stated that the plaintiff/respondent never issued any rent receipt in the name of the defendant/appellant and never inducted him in the suit premises as a tenant and the actual tenants were the legal heirs of Late Manindra Nath Aditya who derived the tenancy from him. In the additional written statement, the defendant/ appellant also denied the alleged conversion of a kitchen into living room on the ground that no kitchen formed part of the tenancy of the original deceased tenant. All the rooms given in the rent to the original tenant where all living rooms and the covered space was being used as kitchen from the beginning, so there was no question of damaging the tenancy.
6. A Commissioner was appointed for making local inspection of the suit premises and he submitted a report. In his report, the Commissioner stated inter alia, that the defendant/appellant was in occupation of two rooms, two covered space with an open sky terrace on the second floor and' one room with covered verandah on the first floor in the suit premises. The Advocate Commissioner in his report, apart from making observations regarding user of the rooms in the disputed premises by both the parties, also observed inter alia, that the damages of the second floor were caused due to natural wear and tear.
7. The plaint was also amended in the suit inserting a statement therein that the plaintiff/ respondent was not in possession of any other reasonably suitable accommodation.
8. The plaintiff/respondent examined himself as P. W. 2 and in examination-in-chief, he stated inter alia, that previously, the defendant's father was the tenant and after his death, his heirs namely, the defendant/appellant and his other three brothers informed the plaintiff/respondent that rent receipt should be granted in the name of the defendant/appellant. His brothers made that arrangement, as all of them were living in America. For the last 21 years, however, the defendant/appellant did not pay any rent to the plaintiff/respondent but deposited rent with the Rent Controller. The defendant/appellant constructed a kitchen on an open space on the second floor without obtaining sanction from the Corporation and originally, the tenancy of the defendant included one kitchen on the second floor which was now being used as a bed room. In his cross-examination, however, the plaintiff/ respondent stated that the defendant/appellant and his brothers all lived in the suit premises and it was a joint tenancy and he admitted issuance of rent receipt in the names of all the brothers of the defendant/appellant which was marked as Exhibit-B and Manindra's sons were using the tenancy in the same manner with the difference that they did not allow the plaintiff/respondent to go to the roof.
9. The defendant/appellant as D. W. 1 in his examination-in-chief had stated that the plaintiff/ respondent never granted any rent receipt in the name of the defendant/appellant alone, and though he deposited rent with the Rent Controller for the suit premises in his own name alone, but it was deposited, in fact, on behalf of his brothers also. The defendant/appellant further stated that his brothers also visited the suit premises at intervals when they came to India.
10. The ejectment notice issued against the defendant/appellant was made Exhibit-9, wherein it was stated by the learned Advocate issuing the said ejectment notice on behalf of the plaintiff/ respondent, that a combined notice of ejectment under Section 106 of the Transfer of Property Act and 13(6) of the West Bengal Premises Tenancy Act, 1956 was being given to quit, vacate and deliver up the vacant possession of the suit premises to the plaintiff/landlord on the expiry of the last day of the month of October, 1975.
11. In all eight Issues were framed in the suit including the following Issues Nos. 1, 2 and 5 namely, "(1) Is the suit maintainable in its present form?
(2) Is the suit bad for non-joinder of necessary parties?
(5) Has the tenancy of the defendant been determined by service of an ejectment notice? If so, is the said notice legal, valid and sufficient?"
12. Regarding the above Issues Nos. 1 and 2, the findings of the trial court were that there was an admission of joint tenancy by the plaintiff/ respondent. Exhibit 'B' which was the rent receipt, which was also issued by the plaintiff/respondent in the name of the defendant/appellant and his brothers. Thus, he had no doubt that it was a case of joint tenancy and relying upon the decision of the Supreme Court in Kanji Manji's case, , the trial court held that the suit as framed was maintainable and it was not bad for non joinder of necessary parties and as such the said Issue Nos. 1 and 2, were answered in favour of the plaintiff/respondent and so far as the above Issue No. 5 was concerned, the trial Court also held that service of notice was admitted by the defendant/appellant and nothing was argued against the validity and sufficiency of the notice and due service thereof, except that it was addressed and served on the defendant/appellant alone though it was a joint tenancy, and in view of the said decision of the Supreme Court as referred to above, the trial court held that the notice was valid, legal and sufficient and duly served on the defendant/appellant whose tenancy had been properly determined by the notice. The said Issue was also answered in the affirmative and in favour of the plaintiff/respondent. The trial court also observed that admittedly, the defendant/appellant alone deposited rent with the Rent Controller without mentioning the names of his brothers or that he was representing them also.
13. So far as the Issue regarding the reasonable requirement of the plaintiff/respondent was concerned, the trial Court after discussing the evidence-on-record and also the pleader commissioner's report held that the plaintiff/ respondent had proved his case regarding reasonable requirement of suit premises for his own use and occupation and also for the members of his family. So far as the Issue regarding the allegation of the damage of the suit premises made by the plaintiff/respondent was concerned, the trial Court also observed that the plaintiff/ respondent had proved that the defendant/ appellant had caused damage to the suit premises as the statement of the plaintiff/respondent that the kitchen bad been convened into a living room and a part of open space had been converted into kitchen unauthorisedly and without plaintiff/ respondent's consent, which was not denied in the oral evidence adduced by the defendant/ appellant. Against the said judgment and decree the defendant/appellant had preferred the present appeal in this Hon'ble Court.
14. It has been submitted by Mr. Das Gupta, learned Senior Counsel, appearing on behalf of the defendant/appellant that the suit was bad for nonjoinder of necessary parties and the ejectment notice serviced upon the defendant was also bad and defective, inasmuch as, when admittedly, after the death of the original tenant, his heirs and legal representatives had inherited the tenancy, under the law, such heirs and legal representatives became tenants-in-common and they all along enjoyed the tenancy as such and though the deposits of rent with the Rent Controller might have been made by the defendant/appellant alone in his own name, it should be deemed to have been deposited on behalf of the other heirs also. Moreover, since there was no evidence on record to show that the other heirs and legal representatives of the deceased-tenant barring the defendant/appellant, had surrendered their interests in the suit premises, the tenancy should be deemed to be continuing as one tenancy being enjoyed by all the heirs and legal representatives of the deceased-tenant including the defendant/ appellant as tenants-in-common. According to Mr. Das Gupta, therefore, all the heirs of the deceased-tenant should have been made parties to the suit, and the notice of the ejectment should have also been served upon all of them or at least should have been addressed to all of them. In support of his contentions Mr. Das Gupta refers to the Bench Decisions of this Hon'ble Court in the case of Bijoy Chand Mahatab v. Kali Prosanna Seal : Sm. Sunila Sundari Dassi v. Sailendra Nath Dey, ILR (1966) 1 Cal 252 and Ajit Kumar Roy v. Satya Bala Dutt, . So far as the decision of the Supreme Court in the case of Kanji Manji v. Trustees of Port of Bombay, , as relied upon by the trial Court in coming to the conclusion with the notice served upon the defendant/appellant being one of the joint tenants, was sufficient, and the suit filed against the defendant/appellant was competent, as the heirs of the deceased became joint tenants after the death of the original tenant was concerned, Mr. Das Gupta contends inter alia, that the trial Court upon a total mis-interpretation of law and also upon a mis-consideration of the facts and circumstances of the case held as such. Mr. Das Gupta further contends that there is a gulf of difference between the joint tenants and tenants-in-common under the Hindu Law, inasmuch as, under the Dayabhaga School of Hindu Law, when a tenant dies, his heirs and legal representatives inherit the tenancy as tenants-in-common as in the present case, but under Mitakshara School of Hindu Law, they become joint tenants, as under the said law, inheritance is based on survivorship. Mr, Das Gupta contends further that in the Bench decision of this Hon'ble Court in the case of Sunila Sundari Dassi (ILR (1966) 1 Cal 252) (supra) the decision of the Supreme Court in the Kanji Manji's case (supra) has also been explained.
15. Regarding the reasonable requirement of the plaintiff/respondent, Mr. Das Gupta, however, contends that since there is no averment in the plaint that the plaintiff/respondent is not in possession of any reasonable suitable accommodation elsewhere and even if, the rooms in occupation of the defendant/appellant are given to the plaintiff/respondent, the plaintiff/ respondent's requirement for himself and for his family members would not be fulfilled completely, no decree for eviction can be passed in favour of the plaintiff/respondent on the ground of reasonable requirement and hence, the decree challenged in appeal has to be set aside and in support of his contention, he refers to the Bench decision of this Hon'ble Court in the case of Smt. Gita Devi Shah v. Smt. Chandramoni Karnani, .
16. Mr. Roy Chowdhury, learned Senior Advocate, appearing on behalf of the plaintiff/ respondent contends inter alia, that it was the defendant/appellant alone who deposited rent with the Rent Controller all along in his name only, and there was no whisper in the challans about the existence of any other tenants-in-common and as such, it should be deemed that the defendant/appellant alone became tenant of the suit premises after the demise of the original tenant and hence, the notice of ejectment issued in the name of the defendant/appellant and served upon him only as well as the suit filed against him alone were both valid and legal. Mr. Roy Chowdhury next contends that even assuming that the other heirs of the deceased-tenants inherited the tenancy alone with the defendant/ appellant, they became joint tenants and not tenants-in-common and as such, the issue of ejectment notice determining tenancy to one of such joint tenants would operate against all the joint tenants and the suit for eviction against one of such joint tenants without impleading the other joint tenants was also maintainable. In support of his said contention Mr. Roy Chowdhury refers to the decision of the Supreme Court in the case of H.C. Pandey v. G. C. Paul, which was also followed in the other two decisions of this Hon'ble Court as cited by Mr. Roy Chowdhury namely, Smt. Sumilita Bhattacharyya v. Smt. Nila Chatterjee, (1989) 2 Cal LJ 351 which was a Division Bench judgment, and also in the case of Smt. Kamala Devi Mukherjee v. Arun Das Gupta, (1993) 2 Cal LT 226, which was a single Bench decision. Regarding the decision as cited by Mr. Das Gupta as stated above, Mr. Roy Chowdhury contends that the judgment is per incuriam, inasmuch as, it was against the statute namely, the West Bengal Premises Tenancy Act, 1956 itself, as there is no such provision in the said Act that until and unless it is found that the complete requirement of the landlord would be fulfilled if he gets possession of the tenanted portion in the suit premises, no decree for eviction can be passed in his favour, even if possession of the tenant's occupation may fulfil the requirement of the landlord to a considerable extent and the landlord would be in a somewhat better position than the existing accommodation available to him.
17. Lastly, Mr. Roy Chowdhury, contends that the doctrine of representation would also operate to the facts and circumstances of the present case or at least its principle, inasmuch as, when from the record, it appears that the other heirs of the deceased-tenant are residing elsewhere and they made arrangement that rent was to be paid by the defendant alone, service of notice upon the defendant/appellant and also filing of suit only against the defendant were both legal and valid as it should have to be presumed that the defendant/appellant represented the other joint tenants also.
18. The judgment of the Supreme Court in the case of Kanji Manji (supra) as relied upon by the trial Court, was a case under the Bombay Rents, Hotel and Lodging House Rates Control Act, (57 of 1947), (as amended by Bombay Act of 4 of 1953). In that case, by a deed of assignment dated February 28, 1947, five (5) persons took the suit premises as joint tenants, the notice of ejectment was served upon one of the joint tenants and the suit was also filed against one of such joint tenants only, as would appear from the facts of the said case. The Supreme Court considering the said facts observed in paragraph No. 7 at page 471 of the said decision as follows :--
"7. The argument about notice need not detain us long. By the deed of assignment dated February 28, 1947, the tenants took the premises as joint tenants. The exact words of the assignment were that'.......... the Assignors do and each of them doth hereby assign and assure with the Assignees as Joint Tenants. ........'. The deed of assignment was approved and accepted by the Trustees of the Port of Bombay and Rupji Jeraj and the appellant must be regarded as joint tenants.
The trial Judge, therefore, rightly held them to be so. Once it is held that the tenancy was joint, a notice to one of the joint tenants was sufficient, and the suit for the same reason was also good. Mr. B. Sen in arguing the case of the appellant, did not seek to urge the opposite. In our opinion, the notice and the frame of the suit were, therefore, proper, and this argument has no merit."
19. The said decision of the Supreme Court came up for consideration before a Bench Decision of this Hon'ble Court in the case of Sunila Sundari Dassi (ILR (1966) 1 Cal 252) (supra). In that case, one Hari Charan Dey was a tenant under the plaintiff/respondent in respect of the suit premises. On the death of Hari Charan the tenancy devolved upon his heirs namely, sons, daughters, and widow including the respondent in the above case. Sailendra, who was one of the sons of late Hari Charan, however, appeared to have taken out a tenancy in his own name and had been paying rent on account of that tenancy by himself alone although he along with some of the heirs of Hari Charan were actually occupying the disputed premises. The landlords filed a suit for eviction against Sailendra alone determining his tenancy by a joint notice to quit under Section 106 of Transfer of Property Act and Section 13(6) of West Bengal Premises Tenancy Act, 1956. Sailendra, however, in his written statement took the plea that the old tenancy of his deceased-father which devolved upon his heirs including Sailendra had not been terminated and was continuing, and as such, the landlords were not entitled to get a decree against Sailendra alone. The Division Bench in the said decision, qbserved inter alia, that Sailendra's new tenancy, if any, taken inclusively by him, had been duly terminated by the notice but so long as Haricharan's tenancy, which substituted in his heirs, was not determined, the landlords would not be entitled to get a decree for khas possession.
20. So far as the decision of the Supreme Court in Kanji Manji's case (supra) was concerned, the Division Bench explained the said decision in the following manner:
"We do not also think that, fairly read, the said decision can be said to support the view that, in all cases of joint tenancies, a suit against any of the joint tenants would be enough to entitle the landlord to a decree for eviction. The least that can be said from this point of view as regards the aforesaid decision is to point out that the statements of facts there are, at any rate, insufficient to support any such extreme contention. Apart from all considerations, there can be no doubt that, in the instant case, the notice of ejectment did not relate at all to the old tenancy of Haricharan nor was it addressed to all the joint tenants and, upon that simple ground, the present suit must fail as the said tenancy cannot be said to have been validly terminated. We have already pointed out that the new tenancy of Sailendra, if any, has been duly determined but, in spite of that, the plaintiffs' instant suit must fail on the ground that the old tenancy of Haricharan, which devolved on his heirs, including Sailendra, is still subsisting."
21. The Division Bench relying upon the well-known Privy Council decision in the case of Harihar Banerjee v. Ram Sashi Roy, 45 Ind App 222 : (AIR 1918 PC 102), further held that although the service of notice upon one of the joint tenants could be sufficient for the purpose of terminating the joint tenancies, the notice must be addressed to all the joint tenants.
22. The case that as cited by Mr. Das Gupta as referred to above, was also a Bench Decision of this Hon'ble Court. In that case the predecessor-in interest of the defendants-appellants was the sole tenant of the suit premises and on his death the defendants being his heirs and legal representatives inherited the said tenancy. A notice to quit was served upon some of the defendants only. The Division Bench after considering the principles of law enunciated by different decisions, observed inter alia, as follows :--
" 10. There can be no doubt that except in the case of coparceners of a Joint Hindu Family governed by the Mitakshara School of Hindu Law, persons inheriting a property, take the same as tenants-in-common and not as joint tenants. There is also no doubt that the estate of a lessee or a monthly tenancy is property within the meaning of Section 19 of the Hindu Succession Act. The defendants, therefore, inherited the property, namely, the monthly tenancy of their predecessor-in-interest as tenants-in-common and not as joint tenants."
23. Since the Division Bench referred to Section 19 of the Hindu Succession Act, 1956 in its above observation, it is proper that we should also look into the provisions of the said Section 19.
24. Section 19 of the Hindu Succession Act, 1956 states inter alia, that if two or more heirs succeed together with a property of an intestate, they should take the property save as otherwise expressly provided in the Act, per capita and not per stirpes and as tenant-in-common and not as joint tenants.
25. The Division Bench in the said decision further held inter alia, that as between the heirs themselves, they are tenants-in-common and not joint tenants in the sense that on the death of one, his interest will not pass by his survivorship to the other tenants, but will devolve on his heirs under the law of inheritance. In the case of joint tenants, on the death of one, his interest in the tenancy will pass to the other tenants by survivorship. Similarly, when the sole tenant died his heirs inherited tenancy as tenants-in-common, but so far as the relationship between the heirs of the deceased-tenant and the landlord are concerned, none of heirs holds any estate in severalty.
26. Discussing the principle of law enunciated by Harihar Banerjee's case and Kanji Manji's case , their Lordships further held that a notice to quit addressed to all the tenants but served on one of them is sufficient applies to the case of tenants-in-common also. From the above Division Bench judgment, it is thus quite clear that their Lordships were of the view that in case of tenants-in-common the notice to quit may be served upon on one such tenant-in-common but it must be addressed to all the tenants-in-common.
27. The salient feature of a joint tenancy is, that it connotes unity to title, possession, interest and commencement of title but in a case of tenancy-in-common or co-tenancy, there may be unity of possession and commencement of title, but the other two features would be absent. The Allahabad High Court in its Full Bench decision in the case of Ram Awalamb v. Jata Sankar, (FB) has explained such differences between joint tenancy and tenancy-in-common or co-tenancy in a very lucid way in paragraph 41 at pages 534-535 of the said decision in the following manner:
"41. ....... ........ ........ ........
According to Halsbury's Laws of England (Vol. 32, page 332) 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."
28. In Mulla's treatise on the Transfer of Property Act, 7th Edition at page 213, the position of joint tenancy and tenancy-in-common has also been discussed in very lucid manner. It is stated inter alia, therein that the Rule of English Law is to presume that a transfer to a plurality of persons creates a joint tenancy with a right of survivorship, unless there are words of severance as was held in the case of Morley v. Bird, (1798) 3 Ves 628. This principle has been adopted in Section 106 of the Indian Succession Act, 1925, replacing Section 93 of the Indian Succession Act, 1865 and a joint tenancy has been recognised in a gift by Will of an Indian Christian, Parsee and Muslim in the cases of Arakal v. Domingo, (1911) ILR 34 Mad 80; Navroji v. Perozbai, (1899) ILR 23 Bom 80 and Mahamad Jusali v. Fatmabai AIR 1948 Bom 53, respectively.
29. The Hindu Law, however, is exactly the opposite. In Jogeswar Naraindeo v. Ram Chund Dutt, (1896) 23 Ind App 37, it was observed inter alia, by Lord Watson, who delivered the judgment on behalf of the Judicial Committee, referring to a Bench Decision of the Madras High Court in the case of Vydinada v. Nagammal, (1888) ILR 11 Mad 258 as follows :--
"There are two substantial reasons why it ought not to be followed as an authority. In the first place, it appears to their Lordships that the learned Judges of the High Court of Madras were not justified in importing into the construction of a Hindu Will an extremely technical rule of English conveyancing. 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. In the second place, the learned Judges misapprehended the law of England, because it is clear, according to that law, that a conveyance, or an agreement to convey his or her personal interest by one of the joint tenants, operates as severance."
30. In a subsequent decision, the Privy Council, in the case of Bahu Rani v. Rajendra Baksh Singh also held on the similar line. Sir John Wallis, who "delivered the judgment on behalf of the Committee in that case, observed inter alia, after quoting with approval the observations of Lord Watson as referred to above, as follows :--
"In their Lordships' opinion this is a clear ruling that the principle of joint tenancy is unknown to Hindu Law except in the case of the joint property of an Undivided Hindu Family governed by the Mitakshara Law which under that law passes by survivorship."
31. The Supreme Court of India in the case of Boddu Venkatakrishna Rao v. Smt. Boddu Satyavathi, , while constructing a Will under the Hindu Law vis-a-vis the joint tenancy and tenancy-in-common, also observed, referring to the decisions of the Privy Council as stated above, inter alia, as follows :--
"(5) Let us now consider the position in law. The law has been summarised in Mulla' s Transfer of Property Act (Fifth Edition) at page 226. As early as 1896 it was held by the Judicial Committee of the Privy Council in Jogeswar Narain Deo v. Ram Chandra Dutt, (1896) 23 Ind App 37 at p. 44 (PC) that:
'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 the case of Mt. Bahu Rani v. Rajendra Baksh Singh .
(6) it was argued before us that there were indications in the Will that the intention of the testatrix was that the foster children should take as joint tenants and that this was apparent from the clause in the Will which provided that 'the entire property should be in possession of both of them and that both of them should enjoy throughout their lifetime the said property and that after their death the children that may be born to them should enjoy the same........' We do not think that from this one can spell out a joint tenancy which is unknown to Hindu Law except as above stated. The testatrix did not expressly mention that on the death of one all the properties would pass to the other by right of survivorship. We have no doubt on a construction of the Will that the testatrix never intended the foster children to take the property as joint tenants. The foster children who became tenants-in-common partitioned the property in exercise of their right."
32. From the above judgments it would appear that it is the considered opinion, the different courts of law including the Privy Council and the Supreme Court of India that the principle of joint tenancy was unknown to Hindu Law except in the case of joint property of an undivided Hindu Family governed by the Mitakshara Law.
33. It would not be out of context to mention that not only under the Hindu Law, under the Mohammedan Law also, when a person dies intestate, his estate devolves upon his heirs who succeed to the estate as tenants-in-common in specific shares and not as joint tenants, as has been held by the Supreme Court itself in the case of Syed Shah Gulam Ghouse Mohiuddin v. Syed Shah Ahmad Mohiuddin Kamisul Qadri, . In paragraph 12 at page 2188 of its said decision, the Supreme Court observed inter alia, as follows :--
"........ The estate of a deceased Mohammedan devolves on his heirs at the moment of his death. The heirs succeed to the estate as tenants-in-common in specific shares. Where the heirs continue to hold the estate as tenants-in-common without dividing it and one of them subsequently brings a suit for recovery of the share the period of limitation for the suit does not run against him from the date of the death of the deceased but from the date of express ouster or denial of title and Article 144 of Schedule-I to the Limitation Act, 1908 would be the relevant Article."
34. The Supreme Court further observed in the said decision that in Mohammedan Law, the doctrine of partial partition is not applicable because the heirs are tenants-in-common and the heirs of the deceased Muslim succeed to the definite fraction of every part of his estate.
35. The Supreme Court, however, in its latter decision in the case of H.C. Pandey v. G. C, Paul, , has given a contrary view as would appear from paragraph 4 at page 1471 of its said decision which is quoted below :--
"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 was served on the respondent was sufficient. It seems to us that the view taken in Ramesh Chand Bose, (supra) is erroneous where the High Court lays down that the heirs of the deceased- tenant succeed as tenants-in-common. In our opinion the notice under Section 106 of the Transfer of Property Act served by the appellant on the respondent is a valid notice and, therefore, the suit must succeed."
36. It appears, that the principle of law as enunciated by the Privy Council in its decisions as referred to above and also by the Apex Court of the Country in its decision in were not referred to and/or discussed at all in the Supreme Court's later judgment in the case of H.C. Pandey, (supra).
37. A subsequent Division Bench judgment of this Hon'ble Court-in the case of Sunilita Bhattacherjee v. Nila Chatterjee, (1989) 2 Cal LJ 35,1 also relying upon the decision of the Supreme Court in the case of H. C. Pandey, (supra), held that at any rate, on the death of the original tenant, his heirs hold the tenancy as joint tenants. Unfortunately the decision of the Supreme Court in or the judgments of the Privy Council as referred to above were not cited and/or discussed the said judgment.
38. The Supreme Court in its subsequent decision in the case of Textile Association (India) Bombay Unit v. Balmohan Gopal Kurup, , has also held on the same line as held in its earlier decision in , as would appear from paragraph 4 at page 2053 of its said decision, which is quoted below :--
"4. Mr. Lalit, Counsel for the appellants argued that the ex parte decree obtained against the joint tenants was equally binding on the respondent. Reference was made in this context to the decisions of this Court in Kanji Manji v. Trustees of the Port of Bombay, and H.C. Pandey v. G.C. Paul, . Both the cases relate to the validity of the notice issued to one of the joint tenants. It was held that the notice issued to one of them would be valid. We do not think that the principle stated in those cases on the facts obtained are relevant to the present case. There is a finding in this case that the respondent was as much a tenant as the mother and the other brother. That being the position the ex parte decree for eviction obtained - against his mother and brother without impleading him in that suit has to be set aside. It is not sufficient as the Courts below have said that the decree was not binding upon the respondent. That decree cannot be kept alive against two other tenants and possession of the premises could be exclusively given to the respondent. The respondent cannot be put into exclusive possession of the premises since his mother and brother are also equally entitled to. It seems to us, therefore, the ex parte decree for eviction should be set aside and the petitioner should be impleaded as a party to that suit and it should proceed on merits."
39. In a subsequent decision, in the case of Kumar Jagadish Chandra v. Elleen K. Patrica D' Rozaria in the Supreme Court has also held while construing the definition of a tenant under West Bengal Premises Tenancy Act, 1956, that on the death of the contractual tenant his heirs and legal representatives become tenants. The single Bench judgment of this Hon'ble Court in (1993) 2 Cal LT 226 as cited by Mr. Roy Chowdhury has relied upon the case of the Supreme Court in and also the Division Bench of this Hon'ble Court in (1989) 2 Cal LJ 351. It appears from the said single Bench decision that the learned Judge tried to distinguish the judgment of the Supreme Court as referred to above.
40. From the above discussions, it thus appears, that is the lone decision of the Supreme Court consisting of two Hon'ble Judges which has held that on the death of the original tenant, his heirs and legal representatives inherit the tenancy as joint tenants, while the majority decisions of the Supreme Court like have given contrary views. Moreover, both the contrary decisions of the Supreme Court as referred to above are decisions of three Hon'ble Judges.
41. As there was some debate on the question whether a Division Bench of Judges is obliged to follow the law laid down by a Division Bench of larger number of Judges, since doubt had arisen on the point by the following observation made by the Hon'ble Mr. Justice Chinnappa Reddy in Javed Ahmed Abdul Hamid Pawala v. State of Maharashtra, :
"The case also raises the further question whether a Division Bench of three Judges can purport to overrule the judgment of a Division Bench of two Judges merely because three is larger than two. The Court sits in Divisions of two and three Judges for the sake of convenience and it may be inappropriate for a Division Bench of three Judges to purport to overrule the decision of a Division Bench of two Judges. Vide Young v. Bristol Aeroplane Co. Ltd., (1944) 2 All ER 293. It may be otherwise where a Full Bench or a Constitution Bench does so."
42. The Supreme Court in its subsequent decision in the case of Union of India v. Raghubir Singh, observed :
"What then should be the position in regard to the effect of the law pronounced by a Division Bench in relation to a case realising the same point subsequently before a Division Bench of a smaller number of Judges? There is no constitutional or statutory prescription in the matter, and the point is governed entirely by the practice in India of the Courts sanctified by repeated affirmation over a century of time. It cannot be doubted that in order to promote consistency and certainty in the law laid down by a superior Court, the ideal condition would be that the entire Court should sit in all cases to decide questions of law, and for that reason the Supreme Court of the United States does so. But having regard to the volume of work demanding the attention of the Court, it has been found necessary in India as a general rule of practice and convenience that the Court should sit in Divisions, each Division being constituted of Judges whose number may be determined by the exigencies of judicial need, by the nature of the case including any statutory mandate relative thereto, and by such other considerations which the Chief Justice, in whom such authority devolves by convention, may find most appropriate. It is in order to guard against the possibility of inconsistent decisions on points of law by different Division Benches that the rule has been evolved, in order to promote consistency and certainty in the development of the law and its contemporary status, that the statement of the law by a Division Bench is considered binding on a Division Bench of the same or lesser number of Judges. This principle has been followed in India by several generations of Judges."
43. The Supreme Court then went on discussing the point referring to a plethora of decisions of its own Court and ultimately in paragraph 28 of its said decision at page 778 (of SCC) : (Para 29, at p. 1946 of AIR) held as follows :--
"We are of opinion that a pronouncement of law by a Division Bench of this Court is binding on a Division Bench of the same or a smaller number of Judges, and in order that such decision be binding, it is not necessary that it should be a decision rendered by the Full Court or a Constitution Bench of the Court. We would, however, like to think that for the purpose of imparting certainty and endowing due authority decisions of this Court in future should be rendered by Division Benches of at least three Judges unless, for compelling reasons, that is not conveniently possible."
44. We are therefore, to follow the decision of the Supreme Court in , in view of the ratio of the decision of the Apex Court in the case of Union of India v. Raghubir Singh, (supra) and applying the ratio of the decision in , we hold that the heirs of the deceased-tenant in the present case before us, who inherited the tenancy jointly, became tenants-in-common and not joint tenants as wrongly held by the learned trial Judge relying upon , and the said finding accordingly, cannot be sustained in law.
45. Now the question is, when the heirs of the deceased tenant inherit the tenancy as tenants-in-common and not as joint tenants, if the landlord wants to bring an eviction suit against the said heirs, whether notice to quit is to be served upon all such tenants-in-common and whether all of them should be made parties to the eviction suit, or whether the notice can be served upon one of them only and the suit can also be filed only against one of them without impleading the other tenants-in-common, who would also be bound by the decree for eviction if passed in the suit, though they are not made parties to the suit.
46. We may start with the well-known Privy Council decision in the case of Harihar Banerjee v. Ram Sashi Roy, 45 Ind App 222 : (AIR 1918 PC 102), which was a case of joint tenancy and it was observed therein that "a notice under Section 105, Transfer of Property Act, may be served either personally or to one of the family or servants of the person intended to be bound by it at his residence, or if such tender or delivery be not practicable, affixed to a conspicuous part of the property. The personal tender or delivery may take place anywhere, the vicarious tender or delivery must take place at the residence of the person intended to be bound by the notice. The procedure in the case of joint tenants is that each is intended to be bound, and it has long ago been decided that service of a notice to quit upon one joint tenant is prima facie evidence that it has reached the other joint tenants".
47. From the above decision, it follows therefore, that in case of a joint tenancy, a notice to quit may be served upon one of the joint tenants but it must be addressed to all, in order to rope in the other joint tenants in the ejectment suit. Unless the notice is addressed to all the joint tenants, the joint tenants, who have been left out in such notice, would not be bound by the same.
48. The said decision of the Privy Council was quoted with approval by a Division Bench decision of the Hon'ble Court in the case of Bijoy Chand Mahatab v. Kali Prosanna Seal and it was held therein that where no notice was addressed to one of the joint tenants, the mere service of notice upon the other joint tenant is not a sufficient notice to quit according to law.
49. The above two decisions were discussed in the Division Bench Decision of this Hon'ble Court in the case of Sunila Sundari Dassi, (ILR (1966) 1 Cal 252) (supra), wherein it was held, that the proof of service of notice of eviction on one of the heirs of the deceased-tenant is sufficient to maintain a suit for eviction against the other heirs of the deceased-tenant, but such notice of eviction must he addressed in the names of all such heirs, though service of notice upon all of them need not be proved.
50. In the Bench Decision in the case of Ajit Kumar Roy's case (supra) it was also held inter alia, that a notice to quit under Section 106 of Transfer of Property Act should contain the name of all the tenants so as to bind them all. The service of notice is not required to be effected on all the tenants and that the principle that a notice to quit addressed to all the tenants but served upon one of them is sufficient, applies, to the case of joint tenants as also to the case of tenants-in-common.
51. The notice to quit in the present case is addressed to and served upon only the defendant/ appellant excluding therein the other tenants-in-common. The ejectment suit in the instant case also, was filed by the plaintiff/respondent against the defendant/appellant alone, leaving aside the other tenants-in-common.
52. However, there are certain special facts and circumstances, so far as the present case is concerned. First, the plaintiff/respondent as P.W. 1 in his examination-in-chief, had categorically stated that all the brothers of the defendant/appellant told the plaintiff/respondent after their father's death that rent receipt should be granted in the name of the defendant/appellant, and the brothers of the defendant/appellant all live in America and they do not live in the suit premises where the defendant/appellant alone live with his family, and the defendant/appellant was tenant under him, but he had not paid rent and started depositing rent with the Rent Controller. No contrary suggestion, however, was given by the defendant/appellant to the plaintiff/respondent while cross-examining him regarding the above statements. Further, the defendant/appellant also deposing as D.W. 1, had stated in his examination-in-chief that he deposited rent with the Rent Controller for the suit premises in his name alone, and he did not mention in the challans that the rents were being deposited also on behalf of his brothers, though he had made a statement that the deposits were also being made on behalf of his other brothers. In his cross-examination also, he had stated that he was depositing rent with the Rent Controller and only his name appears as a tenant in the challans and his brothers visit the suit premises at intervals when they come from America.
53. All the above facts would clearly lead us to the conclusion that the defendant/appellant alone had become tenant under the plaintiff/ respondent after the death of his father and his other brothers, though not in writing, but really, speaking, had relinquished their rights as tenants in respect of the suit premises by their conduct as aforesaid, more so, when admittedly, they do not reside in the suit premises but live in America and also do not visit the suit premises regularly but only casually.
54. Secondly, even if it is held that the above facts and circumstances of the case do not prove any surrender and/or relinquishment of the tenancy rights of the defendant/appellant's other brothers, but the acts and conducts of the defendant/appellant and his other brothers as stated above would lead us to the conclusion that the defendant/appellant represented the entire tenancy, and thus, the principle of representation would also clearly apply to the present case, and any action taken by the landlord against the defendant/appellant alone, would bind the other co-tenants also, as the defendant/appellant would be deemed to be representing the other co-tenants.
55. Therefore, in any form, the impugned notice to quit served upon the defendant/appellant and as well as the suit filed by the landlord against the defendant/appellant, are both valid, legal and maintainable in law, respectively.
56. Let us now come to the merits of the suit. The suit was filed on the ground of reasonable requirement from the evidence adduced by the parties as well as the Advocate Commissioner, we can safely hold that the requirement of the plaintiff/respondent as pleaded in the plaint has been duly proved.
57. So far as Mr. Das Gupta' s contention that since the entire requirement of the plaintiff/ respondent would not be fulfilled even if the defendant/appellant vacates the suit premises, no decree for eviction can be passed in favour of the plaintiff/respondent on the ground of reasonable requirement, in view of the Bench Decision of this Hon'ble Court in the case of Smt. Gita Devi Shah v. Smt. Chandramoni Karnani, , is concerned, we are, however, of the view that the said decision is per incuriam, inasmuch as, nowhere it is stated in the West Bengal Premises Tenancy Act, 1956, specially in Section 13(1) that when the landlord files a suit on the ground of reasonable requirement, it is to be proved by the landlord that by getting possession of the disputed tenancy his entire requirement would be fulfilled. On the contrary, it is well-settled that if the court finds that by getting possession of the disputed premises, the requirement of the landlord would be fulfilled to a considerable extent, or that the landlord would be in a better position to some extent in comparison with his present accommodation, the Court would not hesitate in passing the decree on the ground of reasonable requirement in favour of the landlord. In the present case also, if we take into consideration the occupation which the landlord enjoys presently, and the extra occupation he would get if he gets possession of the disputed premises, it would be quite clear that the landlord's requirements would be fulfilled to a considerable extent and as such we hold that trial court's finding on the question of reasonable requirement is quite legal and valid.
58. We thus find no reason to interfere with the decree passed by the trial Court which we hereby affirm.
59. The appeal, therefore, is dismissed without any order as to costs. The appellant is given four months' time from the date to vacate the suit premises, failing which the decree will become executable.
D.K. Basu, J.
60. I agree.