Calcutta High Court
Kartick Das vs Sri Kamal Ghosh And Ors. on 29 January, 2004
Equivalent citations: (2004)1CALLT600(HC), AIR 2004 (NOC) 466 (CAL), 2004 A I H C 3033, (2004) 2 RENCR 123, (2004) 1 HINDULR 570, (2004) 1 RENTLR 390, (2004) 3 RECCIVR 409, (2004) 3 ICC 40, (2004) 1 CALLT 600
JUDGMENT A.K. Mitra, J.
1.This Miscellaneous Appeal has been preferred challenging the Judgment and order dated 19.1.1998 passed by the learned 10th Assistant District Judge, Alipur in Miscellaneous Appeal No. 276 of 1997 affirming the order dated 27.5.1997 passed by the learned Munsif, 2nd Court at Alipur in Miscellaneous Case No. 50 of 1996.
2. The background of the case may be summarised in the manner as follows:
The respondent Nos. 1 and 2 Sri Kamal Ghosh and Sri Amal Ghosh are the owners in respect of premises No. 208A, Rash Behari Avenue, Calcutta-29. Once Sri A.K. Dutta was the monthly tenant in respect of South Eastern Flat of the second floor of the said premises at a rental of Rs. 550.00 payable according to English Calendar month. The rent was being paid in two shares that is Rs. 275/- each to the respondent Nos. 1 and 2 (Sri Kamal Ghosh and Sri Amal Ghosh). It appears from the records that on July 1988 the respondent Nos. 1 and 2 filed Title Suit No. 338/88 in the Court of learned 2nd Munsif at Alipur against one Lakshmi Rani Dutta. Originally A.K. Dutta was the tenant and Lakshmi Rani Dutta was his wife. The original tenant A.K. Dutta died and Lakshmi Rani Dutta became the tenant therein. Now as stated this suit for eviction and for mesne profits as well as for recovery of possession was filed by the owners against Lakshmi Rani Dutta who was made defendant. In September 1988 said Lakshmi Rani Dutta entered appearance in the suit arid filed applications under Section 17(2) and Section 17(2)(a)(b) of the West Bengal Premises Tenancy Act. She did not however file any Written Statement. On 22.5.1989 another Title Suit was filed by the owners being T.S. No. 36/1987 against Lakshmi Rani Dutta praying for permanent injunction against her from assigning, prevailing and/or pertaining with possession of the tenanted flat. The said suit was decreed on 30.10.1989. Smt. Lakshmi Rani Dutta, the defendant in the suit died without leaving any heir or legal representative.
3. Thereafter, on 20.12.1989 Sri Kartick Das, the appellant herein filed two applications in the suit being T.S. No. 338/88 (which is the title suit and the proceeding arising thereof concerned in this second appeal), one under Order XXII Rule 5 and another under Order XXII, Rule 4A of the Code of Civil Procedure for the determination of the appellant as the legal representative of the said deceased for substitution in the suit and for appointment of Administrator General for the purpose of the said suit till disposal of the application under Order XXII, Rule 5 of the Code of Civil Procedure. On 29.1.1990 the learned Munsif by an order kept the petition under Order XXII, Rule 5 of the Code of Civil Procedure in abeyance on the ground that a probate case is pending. The learned Munsif, however, allowed the other petition under Order XXII, Rule 4A of the Code of Civil Procedure and appointed the Administrator General to represent the suit on behalf of the deceased defendant On 2.3.1990 the appellant herein was directed by the learned Munsif to deposit Rs. 25,000/- as cash security in the office of the Administrator General against arrear rent. Being aggrieved by the said order dated 2.3.1990 directing the appellant to deposit the amount, the appellant filed a revisional application before the learned District Judge at Alipur. The said revisional application was rejected by the 3rd Court of Additional District Judge, Alipur. Challenging the order dated 17.12.1990 passed the learned Additional District Judge rejecting the revisional application filed by the appellant herein, an application under Article 227 was moved before this High Court and by an order dated 5.2.1991 one of the learned single Judges of this High Court rejected the said application. Ultimately, on 20.4.1993 the appellant deposited the sum of Rs. 25,000/- in the trial Court.
4. Thereafter, on 14.5.1993 the learned Munsif rejected the application of the appellant for substitution under Order XXII, Rule 5 of the Code of Civil Procedure on the ground that the tenancy of the deceased original defendant is not transferable by bequest under Will. Ultimately on 24.3.1993 the said T.S. No. 338/88 was decreed ex parte in favour of the respondents Nos. 1 and 2 as in spite of service of summons of he said suit upon the Administrator General, he neither appeared nor contested the suit. The respondent Nos. 1 and 2 herein being the owners of the suit premises filed an application for execution before the learned Court of 2nd Munsif at Alipur which was numbered as Title Execution Case No. 22/95. The appellant herein appeared in the said execution case and filed an application for addition of party in the said suit on the basis of the Will of ,Smt. Lakshmi Rani Dutta (since deceased) and the learned Munsif rejected the said application for addition of party.
5. On 19.8.1995 the appellant herein filed a suit being T.S. No. 42/95 against the respondents praying for declaration and injunction and the said suit being T.S. No. 42/95 was registered in the Court of learned 10th Assistant District Judge at Alipur. On 19.8.1995 that is on the very same date of filing of the suit an application for injunction was filed by the appellants restraining the respondents from executing the writ already issued by the Court in connection with the ejectment decree in T.S. No. 338/1988 and the said injunction application was registered by the learned Assistant District Judge.
6. On 31.7.1996 being aggrieved by the said order dated 19.8.1995 the appellant preferred Miscellaneous Appeal No. 372/95 which was dismissed by the learned 1st Additional District Judge at Alipur on contest.
7. The appellant then filed an application under Order XXI, Rules 98, 99, 100 and 101 of the Code of Civil Procedure and the said application was numbered as Miscellaneous Case No. 50/96. The appellant filed an application for stay in the aforesaid Title Execution case No. 22/95 for staying the said Execution Case till the disposal of Miscellaneous Case No. 50/96. On 16.1.1995 the learned 2nd Munsif at Alipure stayed further proceeding of Title Execution Case No. 22/95 till 21.3.1997 or till the disposal of Miscellaneous Case No. 50/96 whichever is earlier. The respondents Nos. 1 and 2 herein being aggrieved by the aforesaid order dated 16.1.1997 passed by the learned Munsif, 2nd Court at Alipur in Title Execution Case No. 22/95 filed an application under Section 115 of the Code of Civil Procedure in this High Court which was numbered as C.O. No. 268/ 1997. The said revisional application was disposed of by one of the learned single Judges' of this Court directing the learned trial Judge to conclude the hearing on day to day basis till the matter is disposed of. On 11.4.1997, the learned 2nd Munsif at Alipur dismissed the Miscellaneous Case No. 50/96 filed by the appellant for default. Being aggrieved by the said order dated 11.4.1997 the appellant therein filed a revisional application and by order dated 25.4.1997 one learned single Judge of this High Court rejected the application for revision. On 27.5.1997 Miscellaneous Case No. 50/96 was dismissed by the learned 2nd Munsif at Alipur on contest. The appellant therein filed Miscellaneous Appeal No. 276/97 and the said Miscellaneous Appeal No. 276/97 was dismissed on contest by the learned 10th Additional District Judge at Alipur by order dated 19.1.1998. Hence this second Miscellaneous Appeal challenging the said order dated 19.1.1998.
8. Before the Hon'ble Division Bench of this High Court this second Miscellaneous Appeal came up for hearing under Order 41 Rule 11 of the Code of Civil Procedure and on 22.4.1998 and after hearing the matter under Order 41 Rule 11 of the Code of Civil Procedure Their Lordships directed this appeal to be heard on the following substantial question(s) of law.
1. Whether in view of the definition of tenant as contained in Section 2(H) of the West Bengal Premises Tenancy Act a legatee under a Will shall also be a tenant in view of the decision of the Hon'ble Apex Court reported in AIR 1984 SC 1980 as well as decision contrary to the aforementioned proposition as laid down by Division Bench of this High Court reported in 1976 CLJ page 13.
9. The learned counsel for the appellant submitted that it is to be decided whether the definition of estate includes a tenancy or not. In this connection the learned counsel relied on a decision (Damadilal and Ors. v. V. Parashram and Ors.). The learned counsel laid stress on paragraphs 11 and 12 of this judgment which are quoted hereinbelow:
"11. We find it difficult to appreciate how in this country we can proceed on the basis of a tenant whose contractual tenancy has determined but who is protected against eviction by the statute, has no right or property but only a personal right to remain in occupation, without ascertaining what his rights are under the statute. The concept of a statutory tenant having no estate or property in the premises which he occupies is derived from the provisions of the English Rent Acts. But it is not clear how it can be assumed the position is the same in this country without any reference to the provisions of the relevant statute. Tenancy has its origin in contract. There is no dispute that a contractual tenant has an estate or property in the subject-matter of the tenancy, and heritability is an incident of the tenancy. It cannot be assumed, however, that with the determination of the tenancy the estate must necessarily disappear and the statute can only preserve his status of irremovability and not the estate he had ,in the premises in his occupation. It is not possible to claim that the 'sanctity' of contract cannot be touched by legislation. It is therefore necessary to examine the provisions of the Madhya Pradesh Accommodation Control Act, 1961 to find out whether the respondents' predecessors-in-interest retained a heritable interest in the disputed premises even after the termination of their tenancy.
12. Section 2(1) of the Madhya Pradesh Accommodation Control Act, 1961 defines 'tenant' to mean, unless the context otherwise requires.
"a person by whom or on whose account or behalf the rent of any accommodation is, or, but for a acontract express or implied, would be payable for any accommodation and includes any person occupying the accommodation as a sub-tenant and also any person continuing in possession after the termination of his tenancy whether before or after the commencement of this Act; but shall not include any person against whom any order or decree for eviction has been made."
The definition makes a person continuing in possession after the determination of his tenancy a tenant unless a decree or order for eviction has been made against him, thus putting him on par with a person whose contractual tenancy still subsists. The incidents of such tenancy and a contractual tenancy must therefore be the same unless any provision of the Act conveyed a contrary intention. That under this Act such a tenant retains an interest in the premises, not merely a personal right of occupation, will also appear from Section 14 which contains provisions restricting the tenant's power of subletting. Section 14 is in these terms:
"Section 14. Restrictions on sub-letting.--(1) No tenant shall, without the previous consent in writing of the landlord--
(a) sub-let the whole or any part of the accommodation held by him as a tenant;
or
(b) transfer or assign his rights in the tenancy or in any part thereof.
2. No landlord shall claim or receive the payment of any sum as premium or pugree or claim or receive any consideration whatsoever in cash or in kind for giving his consent to the subletting of the whole or any part of the accommodation held by the tenant."
10. There is nothing to suggest that this section does not apply to all tenants as defined in Section 2(1). A contractual tenant has an estate or interest in premises from which he carves out what he gives to the sub-tenant. Section 14 read with Section 2(1) makes it clear that the so-called statutory tenant has the right to sub-let in common with a contractual tenant and this is because he also has in interest in the premises occupied by him. Considering the position of the sub-tenant of a statutory tenant in England, Lord Denning said in Solomon v. Orwell (1954)1 All ER 874 "when a statutory tenant sublets a part of the premises he does not thereby confer any estate or interest in the sub-tenant. A statutory tenant has no estate or interest in himself and he cannot carve something out of nothing. The sub-tenant, like the statutory tenant, has only a personal right or privilege. In England the statutory tenant's right to sublet is derived from specific provisions of the Acts conceding this right to him; in the Act we are concerned with in this appeal, the right, flows from his status as a tenant. This is the basic difference between the English Rent Restriction Acts and the Act under consideration and similar other Indian statues. In a Special Bench decision of the Calcutta High Court, Krishna Prosad Bose v. Sm. Sarajibala Dasi. Bachawat, J., considering the question whether a statutory tenant continuing in occupation by virtue of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 could sublet the premises let to him, said:
"The Rent Control and Tenancy Acts create a special world of their own. They speak of life after death. The statutory tenancy arises phoenix-like out of the ashes of the contractual tenancy. The contractual tenant may die but the statutory tenant may live log thereafter. The statutory tenant is an ex-tenant and yet he is a tenant.
The concept of statutory tenancy under the English Rent Acts and under the Indian statutes like the one we are concerned with in this appeal rests on different foundations. It must therefore be held that the predecessor-in-interest of the present respondents had a heritable interest in the premises and consequently the respondents had the right to prosecute the appeal in the High Court. Mr. Gupte's first submission thus fails."
11. The learned counsel placing reliance on this decision submitted that the tenant can assign his rights in the tenancy or in any part thereof and in the instant case the original tenant Lakshmi Rani Dutta assigned in favour of the appellant Kartick Ch. Das this tenancy and as such the learned Courts below went on wrong by not taken into account that Kartick Das, the appellant herein is a tenant. The learned counsel also submitted that Section 2(1) of Madhya Pradesh Accommodation Control Act, 1961 has been quoted in this judgment of the Hon'ble Apex Court which gives the definition of tenant. The learned counsel then relied on a decision (Bali Ram Dhote v. Bhupendra Nath Banerjee and Ors.). The learned counsel for the appellant relied on paragraphs 7 and 8 of this judgment which are quoted hereinbelow:
"7. Under Sections 211 and 307 of the Indian Succession Act an executor obtains a title by virtue of the will and not from the date when the will is probated. Under Section 211 of the Indian Succession Act "the executor or administrator, as the case may be, of a deceased person is his legal representative for all purposes and all the properties of the deceased person vest in him as such the executor derives his title from the will and immediately after the testator's death, his property vests in the executor as the law knows no interval between the testator's death and the vesting of the property. An executor by virtue of his office, that is in the character of execution takes an estate in the property of the deceased and a legal character is vested in him. In the present case, the will also empowers the executor, the defendant No. 4 herein to sell the property. The executor represents the estate even before he has taken the probate. As such the probate is not necessary to make an executor entitled to the properties as his title is derived under the will. There is nothing in the law to prevent the executor from acting as an executor and exercise a power given to him without obtaining probate.
8. In a case (Kadiyala Venkata Subamma v. Ramayya) it has been, held "probate and administration" refers to proof and not vesting of title on executor. The provisions of Section 12 of the Probate and Administration Act do not suggest that before probate the executor has no title but are only intended to simplify the proof of his title as dating from the testator's death. The object is to get rid of the multiplicity of proof in every case where either the will itself, or anything done under it by the executor is challenged. Probate once granted authenticates the will against all the world; it affords the ready means of proof of the contents of the will; and it is a complete answer by the executor to any challenge of his authority as such. Probate is no part of the executor's title. Executor is only the person to whom the testator has confided the carrying out of his disposition and it is not necessary that before the executor can dispose of the property he must be clothed with probate, and the power of disposal is not dependent upon the grant of the probate.
So in this case when the advocate for the plaintiff received a letter from the defendants stating the name of the executor and giving a copy of the will what prevented the vendee from having the draft conveyance prepared and having it approved by the defendants. Probate mainly gives an adequate protection and nothing further."
12. In this judgment one learned single Judge of this Hon'ble Court observed that the executor of a Will derives his title from the Will and immediately after the testator's death, his property vests in the executor. The learned counsel submitted that in this judgment the Hon'ble single Judge made it clear that whether the Will has been probated or not the executor will be stepping into the shoes of the original title holder. The learned counsel submitted that in this case also the appellant on the basis of the probate of the Will would be a tenant more so when in this the learned single Judge observed that even if the executor prior to probate will be entitled to claim right. The learned counsel also submitted that in this judgment the learned single Judge Bench of this High Court observed that probate is only the consequence and the executor comes into position immediately on the death of the testator. The learned counsel relied on Section 29 and Section 30 of the Hindu Succession Act and submitted that these two sections of the Hindu Succession Act, 1956 provides how a probate will be dealt with after the death of the predecessor-in-interest when he or she dies in testate. Section 29 and 30 of the said Act are quoted hereinbelow:
"29. Failure of heirs.--If an intestate has left no heir qualified to succeed to his or her property in accordance with the provisions of this Act such property shall devolve on the Government; and the Government shall take the property subject to all the obligations and liabilities to which an heir would have been subject.
30. Testamentary succession.--Any Hindu may dispose of by will or other testamentary disposition any property, which is capable of being so disposed of by him, in accordance with the provisions of the Indian Succession Act, 1925 (39 of 1925), or any other law for the time being in force and applicable to Hindus.
Explanation.--The interest of a male Hindu in a Mitakshara coparcenary property or the interest of a member of a tarwad, tavazhi, illom, kutumba or kavaru shall, notwithstanding anything contained in this Act or in any other law for the time being in force, be deemed to be property capable of being disposed of by him or by her within the meaning of this section."
13. The learned counsel submitted that when a probate is granted which still stands then the succession of the beneficiary stands and nothing more is required to establish that he has got the tenancy by way of inheritance. The learned counsel for the appellant then relied on a decision (Sm. Gian Devi Anand v. Jeevan Kumar), The learned counsel relied on paragraphs 31 and 34 and submitted that the heirs of statutory tenant are entitled to same protection against eviction as afforded to tenant under Act and the tenancy is heritable. Paragraphs 31 and 34 which have been relied upon by the learned counsel for the appellant are quoted hereinbelow:
"31. We now proceed to deal with the further argument advanced on behalf of the landlords that the amendment to the definition of 'tenant' with retrospective effect introduced by the Delhi Rent Control Amendment Act (Act 18 of 1976) to give personal protection and personal right of continuing in possession to the heirs of the deceased statutory tenant in respect of residential premises only and not with regard to the heirs of the so called statutory tenant' in respect of commercial premises, indicates that the heirs of so called statutory tenants, therefore, do not enjoy any protection under the Act. This argument proceeds on the basis that in the absence of any specific right created in favour of the so-called statutory tenant' in respect of his tenancy, the heirs of the statutory tenant who do not acquire any interest or estate in the tenanted premises, become liable to be evicted as a matter of course. The very premise on the basis of which the argument is advanced is, in our opinion, unsound. The termination of the contractual tenancy in view of the definition of tenant in the Act does not bring about any change in the status and legal position of the tenant, unless there are contrary provisions in the Act; and, the tenant notwithstanding the termination of tenancy does enjoy an estate or interest in the tenanted premises. This interest or estate which the tenant under the Act despite termination of the contractual tenancy continues to enjoy creates a heritable interest in the absence of any provision to the contrary. We have earlier noticed the decision of this Court in Damadilal's case (supra). This view has been taken by this Court in Damadilal's case and in our opinion this decision represents the correct position in law. The observations of this Court in the decision of the Seven Judge Bench in the case of V. Dhanapal Chettiar v. Yesodai Ammal (supra) which we have earlier quoted appear to conclude the question. The amendment of the definition of tenant by the Act 18 of 1976 introducing particularly Section 2(1)(iii) does not in any way mitigate against this view. The said Sub-section (iii) with all the three Explanations thereto is not in any way Inconsistent with or contrary to Sub-section (ii) of Section 2(1) which unequivocally states that tenant includes any person continuing in possession after the termination of his tenancy. In the absence of the provision contained in Sub-section 2(1)(iii), the heritable interest of the heirs of the statutory tenant would devolve on all the heirs of the 'so called statutory tenant' on his death and the heirs of such tenant would in law step into his position. This Sub-section (iii) of Section 2(1) seeks to restrict this right in so far as the residential premises are concerned. The heritability of the statutory tenancy which otherwise flows from the Act is restricted in case of residential premises only to the heirs mentioned in Section 2(1)(iii) and the heirs therein are entitled to remain in possession and to enjoy the protection under the Act in the manner and to the extent indicated in Sub-section 2(1)(iii). The Legislature which under the Rent Act affords protection against eviction to tenants whose tenancies have been terminated and who continue to remain in possession and who are generally termed as statutory tenants, is perfectly competent to lay down the manner and extent of the protection and the rights and obligations of such tenants and their heirs. Section 2(1) (iii) of the Act does not create any additional or special right in favour of the heirs of the 'so called statutory tenant' on his death, but seeks to restrict the right of the heirs of such tenant in respect of residential premises. As the status and rights of a contractual tenant even after determination of his tenancy when the tenant is at times described as the statutory tenant, are fully protected by the Act and the heirs of such tenants become entitled by virtue of the provisions of the Act to inherit the status and position of the statutory tenant on his death, the Legislature which has created this right has thought it fit in the case of residential premises to limit the rights of the heirs in the manner and to the extent provided in Section 2(1)(iii). It appears that the Legislature has not thought it fit to put any such restrictions with regard to tenants in respect of commercial premises in this Act.
34. It may be noticed that the Legislature itself treats commercial tenancy differently from residential tenancy in the matter of eviction of the tenant in the Delhi Rent Act and also in various other Rent Acts. All the grounds for eviction of a tenant of residential premises are not made grounds for eviction of a tenant in respect of commercial premises. Section 14(1)(d) of the Delhi Rent Act provides that non-user of the residential premises by the tenant for a period of six months immediately before the filing of the application for the recovery of possession of the premises will be a good ground for eviction, though in case of a commercial premises no such provision is made. Similarly, Section 14(1)(e) which makes bona fide requirement of the landlord of the premises let out to the tenant for residential purposes a ground for eviction of the tenant, is not made applicable to commercial premises. A tenant of any commercial premises has necessarily to use the premises for business purposes. Business carried on by a tenant of any commercial premises may be and often is, his only occupation and the source of livelihood of the tenant and his family. Out of the income earned by the tenant from his business in the commercial premises, the tenant maintains himself and his family; and the tenant, if he is residing in a tenanted house, may also be paying his rent out of the said income. Even if a tenant is evicted from his residential premises, he may with the earnings out of the business be in a position to arrange for some other accommodation for his residence with his family. When, however, a tenant is thrown out of the commercial premises, his business which enable him to maintain himself and his family comes to a standstill. It is common knowledge that it is much more difficult to find suitable premises for residence. It is no secret that for securing commercial accommodation, large sums of money by way of salami, even though not legally payable, may have to be paid and rents of commercial premises are usually very high. Besides, a business which has been carried on for years at a particular place has its own goodwill and other distinct advantages. The death of the person who happens to be the tenant of the commercial premises and who was running the business out of the income of which the family used to be maintained, is itself a great loss to the members of the family to whom the death, naturally, comes as a great blow. Usually, on the death of the person who runs the business and maintains his family out of the income of the business, the other members of the family who suffer the bereavement have necessarily to carry on the business for the maintenance and support of the family. A running business is indeed a very valuable asset and often a great source of comfort to the family as the business keeps the family going. So long as the contractual tenancy of a tenant who carries on the business continues, there can be no question of the heirs of the deceased tenant not only inheriting the tenancy but also inheriting the business and they are entitled to run and enjoy the same. We have earlier held that mere termination of the contractual tenancy does not bring about any change in the status of the tenant and the tenant by virtue of the definition of the 'tenant' in the Act and the other Rent Acts continues to enjoy the same status and position unless there be any provisions in the Rent Acts which indicate to the contrary. The mere fact that in the Act no provision has been made with regard to the heirs of tenants in respect of commercial tenancies on the death of the tenant after termination of the tenancy, as has been done in the case of heirs of the tenants of residential premises, does not indicate that the Legislature intended that the heirs of the tenants of commercial premises will cease to enjoy the protection afforded to the tenant under the Act. The Legislature could never have possibly intended that with the death of a tenant of the commercial premises, the business carried on by the tenant, however flourishing it may be, and even if the same constituted the source of livelihood of the members of the family, must necessarily come to an end on the death of the tenant only because the tenant died after the contractual tenancy had been terminated. It could never have been the intention of the Legislature that the entire family of a tenant depending upon the business carried on by the tenant will be completely stranded and the business carried on for years in the premises which had been let out to the tenant must stop functioning at the premises which the heirs of the deceased tenant must necessarily vacate, as they are afforded no protection under the Act. We are of the opinion that in case of commercial premises governed by the Delhi Act, the Legislature has not thought it fit in the light of the situation at Delhi to place any kind of restriction on the ordinary law of inheritance with regard to succession. It may also be borne in mind that in case of commercial premises the heirs of the deceased tenant not only succeed to the tenancy rights in the premises but they succeed to the business as a whole. It might have been open to the Legislature to limit or restrict the right of inheritance with regard to the tenancy as the Legislature had done in the case of the tenancies with regard to the residential houses but it would not have been open to the Legislature to alter under the Rent Act, the Law of Succession regarding the business which is a valuable heritable right and which must necessarily devolve on all the heirs in accordance with law. The absence of any provision restricting the heritability of the tenancy in respect of the commercial premises only establishes that commercial tenancies notwithstanding the determination of the contractual tenancies will devolve on the heirs in accordance with law and the heirs who step into the position of the deceased tenant will continue to enjoy the protection afforded by the Act and they can only be evicted in accordance with the provisions of the Act. There is another significant consideration which, in our opinion, lends support to the view that we are taking. Commercial premises are let out not only to individuals but also to Companies, Corporations and other statutory bodies having a juristic personality. In fact, tenancies in respect of commercial premises are usually taken by Companies and Corporations. When the tenant is a Company or a Corporation or anybody with juristic personality, question of the death of the tenant will not arise. Despite the termination of the tenancy, the. Company or the Corporation or such juristic personalities, however, will go on enjoying the protection afforded to the tenant under the Act. It can hardly be conceived that the Legislature would intend to deny to one class of tenants, namely, individuals the protection which will be enjoyed by the other class, namely, the Corporations and Companies and other bodies with juristic personality under the Act. If it be held that commercial tenancies after the termination of the contractual tenancy of the tenant are not heritable on the death of the tenant and the heirs of the tenant are not entitled to enjoy the protection under the Act, an irreparable mischief which the Legislature could never have intended is likely to be caused. Any time after the creation of the contractual tenancy, the landlord may determine the contractual tenancy, allowing the tenant to continue to remain in possession of the premises, hoping for an early death of the tenant, so that on the death of a tenant he can immediately proceed to institute the proceeding for recovery and recover possession of the premises as a matter of course, because the heirs would not have any right to remain in occupation and would not enjoy the protection of the Act. This could never have been intended by the Legislature while framing the Rent Acts for affording protection to the tenant against eviction that the landlord would be entitled to recover possession, even no grounds for eviction as prescribed in the Rent Acts are made out."
14. The learned counsel submitted that under Section 29 of Hindu Succession Act 1956 has no manner of application in the instant case since Section 30 of the said Act comes into play. The learned counsel further submits that though in the instant case decree for eviction has been passed against the appellant till then the said decree has been challenged by the appellant in the instant application filed under Order XXI, Rules 98, 99, 100 and 101. The learned counsel submits that the right of the appellant can be adjudicated under Order XXI, Rule 101 and as such though decree has been passed for eviction that can be said to be under challenge or that can be said to be subjudice in view of the application filed in the execution proceeding under Order XXI, Rule 98 and 101 of the Code of Civil Procedure. The learned counsel then submitted that in view of the provisions of Order 22, Rule 4 the appellant can be substituted In place of Lakshmi Rani Dutta inasmuch as Order 22, Rule 4 provides for substitution of the legal representative of the deceased and according to the learned counsel for the appellant the present appellant is the legal representative of the deceased tenant Lakshmi Rani Dutta and the estate of Lakshmi Rani Dutta devolves in the appellant under Section 30 of the Hindu Succession Act and the learned counsel also submitted that immediately on the death of the deceased tenant the appellant has become the legal representative. The learned counsel submitted thereafter that the decree has been passed against the Administrator General or it can be said to have been passed against the Government and the said decree cannot be said to be binding upon the appellant. The learned counsel then submitted that in West Bengal Premises Tenancy Act no prescription is there in the right of transfer and the transfer in dues is not illegal. The learned counsel also submitted that as his application for injunction filed in T.S. No. 42/95 has been rejected and in the Miscellaneous Appeal also the prayer for injunction has been rejected that does not mean that the same will stand as bar of res Judicata inasmuch as those were interlocutory applications and the instant application filed by the appellant is for final determination of his right. The learned counsel submitted that no decree has been passed against him and he is the legal representative of the deceased tenant and as such he is entitled to protection as provided in the Act. The learned counsel in this regard placed reliance on the decision . The learned counsel placed reliance on paragraphs 10, 11 and 12 of this judgment and submits that the Hon'ble Apex Court has observed that on the death of statutory tenant his heirs and legal representatives should be brought on record. The learned counsel submitted that the appellant is entitled to protection under the Act. The learned counsel submitted that both the Courts below went on wrong in coming to the conclusion that the appellant cannot be accepted as a tenant in view of the bequest made in the Will by the deceased tenant. The learned counsel for the respondent submitted that on principle there is no basic difference in between the ratio of these two decisions (Jaspal Singh v. Additional District Judge and Ors.) and the decision reported in 1976(1) CLJ page 13 (Satyabrata Banerjee and Anr. v. Ushaprobha Sarkar and Ors.). The learned counsel submitted that Section 2(h) of the West Bengal Premises Tenancy Act provides two important words "heirs" and "ordinarily residing". The learned counsel for the respondent submitted that Section 13(1)(a), 13(2), 13(3) and Section 16(1), (2) and (3) of the West Bengal Premises Tenancy Act read together clear out the position that even if a transfer by Will or bequest will attract sub-tenancy and the Act provides for this purpose previous consent of the landlord is required. The learned counsel then submitted that Section 30 of the Hindu Succession Act also contends and important wording is "is capable of being disposed or. The learned counsel submits that in that view of the provision of Section 30 of Hindu Succession Act the tenancy right is not transferable by Will. The learned counsel submits that in view of the provisions of Section 14 of the West Bengal Premises Act transfer is not totally prohibited if the transfer is permissible that is if it is with the prior consent of the landlord. The learned counsel then relied on a decision reported in 1982(1) All India Rent Control Journal, page 198 and submitted that in this judgment the Hon'ble Division Bench of this High Court observed that subletting is not prohibited if it is with the prior consent of the landlord but under Section 14(1) the unauthorised subletting shall not binding upon the landlord. In this judgment the Hon'ble Division Bench also discussed the doctrine of precedent and observed that judgments given under other Acts only binding when the provisions of various Acts are pari materia. The learned counsel for the respondent laid stress on paragraphs 7, 14 and 21 of this Judgment which are quoted hereinbelow:
"7. Thus, the learned Judges of the Court below In substance found that the decision In the ejectment suit in which the present appellant and the defendant were co-defendants operated as res judicata, and therefore, the plaintiff in the present suit cannot be heard to say that he was a sub-tenant under the defendant. We do not however, propose to decide the said question of res judicata. The suit out of which this appeal arises is yet to be decided. We understand that the defendant respondent has not yet filed his written statement and the trial Court has not framed the issues. Only after the suit becomes ready upon examination of the pleadings and the previous judgment on record, the Court may decide whether in fact the decision in the previous ejectment suit operates as res judicata. Therefore, upon incomplete and insufficient materials now on record at this interlocutory stage, we are not prepared to prejudge the cause. Even if, we express our prima facie views on the issues of res judicata, the same may prejudice a fair disposal of the suit by the trial Court. We hold for the same reason, that the trial Court was also not justified in dismissing the plaintiff's application for temporary injunction practically only on the ground that the suit brought by him was barred by res judicata. We do not propose to rest our decision in this appeal on the issue of res judicata.
14. There is, however, another aspect of the matter which is very relevant for deciding this temporary injunction matter. The learned Judge of the trial Court has himself observed that the plaintiff with his family had been residing in the suit premises for a long time and that he would be in great trouble if he was thrown out of the suit premises. But in view of the decision in the aforesaid ejectment suit, the learned Judge held that the plaintiff has no prima facie case and cannot be favoured with an order of temporary injunction. Secondly, it is settled principle governing grant of interlocutory injunction that the Court ought to see that there is a bona fide contention between the parties and then on which side, in the event of success, will lie the balance of convenience if the injunction does not issue. At the interlocutory stage the Court may also consider whether triable issues have been raised by the plaintiff and whether there were substantial questions to be investigated. We have already observed that the question of res judicata ought to be determined at the time of the final hearing and not at the interlocutory stage of the suit. Therefore, to decide the application for temporary injunction the balance of convenience ought to be the main criterion. Since 1962, the plaintiff with his family had been residing in the suit premises. Whether his exclusive occupation was as a licensee or as a tenant may be hereinafter decided in accordance with law. The defendant who had been residing elsewhere is not in physical occupation of the flat. In case, even before his suit is decided the plaintiff dispossessed he is likely to suffer serious inconvenience and difficulty. On the other hand, in case the defendant is not temporarily allowed to recover possession, he may be given pecuniary compensation. We hold that the status quo about the possession ought to be preserved till final disposal of the suit. But, the plaintiff cannot be allowed to occupy the suit premises unconditionally. It is only fair and equitable that he should be directed to deposit charges for use and occupation of the premises which on his own admission he had not paid since the year 1973. He ought to be also restrained from transferring the possession of the flat in favour of any third party.
21. In our view, Section 23 of the Contract Act is not applicable to sublettings after the commencement of the 1956 Act without prior consent in writing of the landlord. A consideration for a contract of subletting between the tenant of the first degree and his sub-tenant foes not come within the categories enumerated in Section 23 of the Contract Act. Section 14(1) does not really forbid sub-letting by a tenant of the first degree but it makes unauthorised sub-letting by a tenant of the first degree but it makes unauthorised sub-letting by a tenant of the first degree but it makes unauthorised sub-letting not binding upon the landlord and also entitled the landlord to evict a tenant who has sublet after the commencement of the Act without his consent. The creation of unauthorised subletting would not defeat provisions of any law. Subletting under the general law as not unlawful and in the absence of a contract to the contrary a tenant could sublet. Under Rent Control legislation, some classes of sub-tenants have been given protection from eviction. The legal position of those sub-tenants who do not enjoy the benefits of Rent Control legislation appears to be the same as that under the general law. In the absence of any privity of contract, the unauthorised sub-tenancies, are not binding upon the superior landlord who can evict such sub-tenants in execution of eviction decrees obtained against the tenant of the first degree. But the mere fact that an unauthorised sub-tenant has been denied the benefits of protection under the Rent Control legislation does not necessarily mean that a subletting by a tenant is not totally forbidden or that such subletting if permitted would defeat provisions of any law. The West Bengal Premises Tenancy Act has provided that a subletting shall have no effect as against the superior landlord and expresses no intention to prohibit the act of subletting merely because the tenant, who sublets unauthorisedly, may incur punishment it does not necessarily mean that subletting is forbidden by law."
15. The learned counsel for the respondent further submitted that if a tenant assigns the tenancy to the assignee there is no question of payment of rent contract in between the landlord and the assignee and bequeath by Will does not bring about any rent consideration. The learned counsel for the respondent relied on a decision (Pandit Kishanlal v. Ganpatram Khosla and Anr.). The learned counsel relied on paragraph 7 of this judgment in which it has been observed "in the present case the company did not surrender its rights to the appellant; it sought to transfer its right to Khosla. The company admittedly did not serve the notice as required by law, nor did the appellant agree to accept the unilateral determination of the tenancy by the company. The true position was therefore that the company did not immediately on the service of the notice she is to be a tenant and Khosla, because he was let into possession became an assignee of the rights of the company as a tenant and he could not be regarded as a trespasser. The High Court was therefore in our view in arrear in holding that the proceedings were not maintainable in the Court of the controller for position. Khosla being an assignee of the tenancy rights of the company was much liable to sue in the Court of the controller as the company for an order in ejectment." The learned counsel for the respondent submitted that in view of his submissions and in view of the provisions of the Act as well as the decision cited by him the appeal should be dismissed and the judgments of both the Courts below should be affirmed.
16. The learned counsel for the appellant sought to distinguish the judgment reported in AIR 1968 SC (supra) and 1982(1) of Indian Rent Control Journal (supra) and submitted that these judgments are not relevant in the context.
17. Heard the learned counsel for the parties. Considered their submissions and considered the judgments of both the Courts below. Keeping an eye with the substantial question of law framed in this second appeal and the submissions made by the learned counsel for the respective parties on this substantial question of law let us see what the term 'estate' means. It is settled position of law and it has no longer resintegra that the word 'estate' as undoubtedly in law a diversity of meaning though ordinarily the term 'estate' is applied to the property. Now the property signifies every species of property. Tenancy initially comes out of a contract in between the landlord and the tenant and right of tenancy can be right and there can be some protections given to a tenant in or by the statute but in any even the right of tenancy cannot be termed as property or estate of the tenant. Section 2(h) of the West Bengal Tenancy Act which is vital and relevant for the purpose of determination of this substantial question of law is quoted hereinbelow:
"Tenant means any person by whom or on whose account or behalf, the rent of any premises is, or but a special contract would be, payable and includes any person continuing in possession after the termination of his tenancy or in the event of such person's death, such of his heirs as were ordinarily residing with him at the time of his death but shall not include any person against whom any decree or order for eviction has been made by a Court by competent jurisdiction. The definition of tenant is quite clear and includes to important terms which are 'his heirs' and 'were ordinarily residing with him at the time of his death'. Now 13(1)(a) provides 'notwithstanding anything to the contrary in any other law, no order or decree for the recovery of possession of any premises shall be made by any Court in favour of the landlord against a tenant except on one or more of the following grounds, namely:
"(a) Where the tenant or any person residing in the premises let to the tenant without the previous consent in writing of the landlord transfers, assigns or sublet in whole or in part the premises held by them."
18. Next comes the question of transfer or assignment. In this regard reliance may be placed in (supra) which provides that by a testamentary disposition a tenant cannot be allowed to transfer a tenancy right. Principly however this decision does not differ with the decision reported in 1976(1) CLJ page 13 (supra). The quoting observation made in this judgment is quoted hereinbelow:
"The word 'transfer' is of wider import than what has been defined in Section 5 of the Transfer of Property Act. While defining the expression, 'transfer of property' in the Transfer of Property Act, special attention has been given to those sections following Section 5 and as such the said definition is confined to those transactions, such as sale, mortgage, gift, lease etc. But while considering the import of the word transfer as appearing in Section 13(1)(a) of the West Bengal Premises Tenancy Act, it should not be confined to those transactions only as contemplated in the Transfer of Property Act. The definition as given in the Transfer of Property Act is not exhaustive; it merely enumerates or concentrates on those transactions to which the said definition was sought to be applied. By testamentary disposition a transfer becomes effective on the death of the testator. It has been contended that Section 13(1)(a) does not contemplate transfers in future and such transfers are outside the ambit of the section. Although the will becomes effective on the death of the testator and after the grant of the probate, still the said contention is unacceptable. Keeping in view the purpose for which the provision of Sections 13(1)(a) of the Act has been enacted, it appears that the word 'transfer' has been used in the wider connotation embracing a bequest by will.
The said Sub-section [13(1)(a)] speaks of transfers, assigns and sublets. The term, 'assign' is significant. It covers a disposition which may be operative even after death. The use of the word 'assign' in juxtaposition with the word 'transfer' in the section in question appears to give an added strength to the word transfer by plugging the loopholes, if any was to be found open to circumvent the provision. Therefore, the testamentary disposition of the tenancy by P in the instant case, comes clearly within the term assignment, and as such the tenant cannot thereafter get any protection after it becomes effective on the death of the tenant executing the will. In other words, the Will be executed by P conies within the mischief of the Section 13(1)(a) of the West Bengal Premises Tenancy Act, 1956, so far as the disposition of his tenancy in question is concerned."
19. Now, it has to be seen that whether by way of testamentary succession the legatee of a Will can be a heir within the meaning of the West Bengal Premises Tenancy Act read with Hindu Succession Act. As has already been quoted Section 30 of the Hindu Succession Act deals with testamentary disposition. Now, whether a tenant is capable of disposing of the tenancy right by way of Will, considering its language thinking about the object of introduction of the provisions of Section 2(h), Section 13 and Section 14 of the West Bengal Premises Tenancy Act by the legislature it can be very well said that the tenancy right is not a property or not an estate of the tenant which can be disposed of in favour of anybody by way of Will or testament. In the instant case the appellant was in no way related with the deceased tenant Lakshmi Rani Dutta and the appellant claimed his right only on the basis of the Will. Now, in the instant case, since after the death of the tenant, no one was there to represent the deceased tenant Lakshmi Rani Dutta, the Administrator General was made party defendant and decree was made against the Administrator General. The appellant herein though claimed an independent right ultimately but as would appear from the facts and circumstances of the case it could not be established by him that he was an heir ordinarily residing with the tenant. If it is taken for granted that he was ordinarily residing with the tenant then also he cannot be the heir as to get protection under West Bengal Premises Tenancy Act inasmuch as the tenant is not capable of disposing of the tenancy as the property by virtue of any Will. I respectfully agree with the observation made by the Hon'ble Apex Court in the decision (supra) and held that considering the provisions of the different status that is Section 5 of the Transfer of Property Act, Order 22, Rule 4 of the Code of Civil Procedure, Section 29 and 30 of the Hindu Succession Act and mainly considering the provisions of West Bengal Premises Tenancy Act, 1965, keeping the objects of this enactment of 1965 in its spirit, in my opinion, the transfer of tenancy right by a tenant through a testamentary disposition is not a valid transfer or this transfer does not confer any tenancy right on the transferee.
20. In view of the discussions made above, the appeal, therefore, fails and is dismissed. The judgment and order passed by the Courts below are hereby affirmed. Let the decree be drawn up accordingly. The parties are to bear their own costs respectively.
Let the LCR be sent down to the Courts below forthwith.
Urgent xerox certified copy, if applied for, will be supplied to the parties expeditiously.
Later 29.01.2004 The amount which has been stated to have been deposited before the Registrar, Appellate Side by the appellant be withdrawn by Mr. Kamal Ghosh or his authorised representative.
Learned counsel for the appellant prays for stay of operation of the order for a period of two months from date, since the matter is very old one and long pending, the prayer for stay is refused at this stage.
Let a xerox plain copy of this order duly countersigned by the Assistant Registrar (Court) be handed over to the learned counsel for the parties on usual undertaking.