Calcutta High Court (Appellete Side)
Prasun Chakraborty vs Smt. Indira Jaiswal on 10 March, 2016
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Jyotirmay Bhattacharya
And
The Hon'ble Justice Ishan Chandra Das
F.A.T 549 of 2015
Prasun Chakraborty
Vs.
Smt. Indira Jaiswal
And
F.A.T 550 of 2015
Sri Pradip Chakraborty
Vs.
Smt. Indira Jaiswal
And
F.A.T 551 of 2015
Prabir Chakraborty
Vs.
Smt. Indira Jaiswal
For the Appellant : Mr. Partha Sarathi Basu, Sr. Adv.
: Mr. Debdutta Basu, Adv.
For the Respondent : Mr.Tapan Kumar Mitra Adv.
: Mr. Arpan Roy Kanjilal, Adv.
Heard on : 10.03.2016
Judgment on : 10th March, 2016.
Jyotirmay Bhattacharya, J.
This First Appeal being F.A.T No.551 of 2015 is directed against the judgment and decree dated 24th August, 2015 passed by the learned Judge 10th Bench, City Civil Court at Calcutta in Tittle Suit No.3138 of 2007 at the instance of the defendant/appellant. There are two other appeals, one being FAT No.549 of 2015 (Prasun Chakraborty Vs. Smt. Indira Jaiswal) and other being FAT No.550 of 2015 (Pradip Chakraborti Vs. Indira Jaiswal). Both these appeals are directed against the judgments and decrees both passed on 24th August 2015 by the learned Judge 10th Bench, City Civil Court at Calcutta in T.S No.3214 of 2007 and T.S. No. 3107 of 2007 respectively. In all these three appeals, the plaintiff/respondent is common, and the defendants/appellants are three brothers. Three suits were filed by the common respondent against all these three brothers for recovering possession of the suit premises which are in their possession at Premises No.12/1 Ram Krishna Das Lane, P.S. Amhertst Street, Kolkata 700009. Prasun Chakraborti was the defendant in T.S. No. 3107 of the 2007. Pradip Chakraborty was the defendant and in T.S. No. 3138 of 2007. Prabir Chakraborty was the defendant in T.S. No. 3138 of 2007.
The case made out by the plaintiff in all these three suits and the defence taken by the defendants in their respective written statement filed in these suits, are identical. Even the evidence of the parties adduced in all the said three suits are in the same line. Those three suits were disposed of by delivering independent judgment in each of these three suits on 24th August, 2015 but each of such judgments is identically same with the other. The issues raised in all these three suits were also identical and all these issues in the said suits were decided by the learned Trial Judge in the same line. In fact the judgment passed in one suit is the verbatim copy of the judgment passed in the other suit. As such, we heard all these three appeals analogously and propose to dispose of all the three appeals by a common judgment.
Let us now give the admitted facts of the parties in all these three suits.
Admittedly, one Shanti Debi Chakraborty was a tenant in respect of three rooms, one kitchen along with bath and privy situated on the ground floor of Premises No.12/1 Ram Krishna Das Lane, P.S. Amhertst Street, Kolkata 700009 under Smt. Indira Jaiswal, the plaintiff/respondent being the transferee landlord, who purchased the suit property from the erstwhile owner of the said Premises. The tenant Shanti Debi Chakraborty was a spinster. She died intestate on 10th January, 2002. At the time of her death she left her brother Paritosh Chakaraborty as her only heir under Hindu Succession Act. After the death of Shanti Debi Chakraborty her brother Paritosh Chakarborty started possessing the said tenancy of Shanti Debi Chakraborty. As such the landlady served a notice under Section 6(4) of the West Bengal Premises Tenancy Act, 1997 dated 4th July, 2006 upon Paritosh Chakraborty inviting him to quit and vacate the tenancy in his occupation on various grounds. By the said notice, the said Paritosh Chakraborty was called upon to vacate and deliver up vacant possession on the expiry of the last date of August, 2006. In the said notice the landlady described Paritosh Chakraborty as a tenant under her. She claimed that the tenancy of Shanti Debi Chakraborty devolved upon Paritosh Babu on the death of Shanti Debi. Thus, in effect the landlady accepted Paritosh Babu as her tenant since the time of death of Shanti Debi. However, no suit was filed against the said Paritosh Babu by acting upon the said notice during his lifetime. Paritosh Babu died subsequently on 18th April, 2007 leaving behind him surviving his three sons, namely, Prasun Chakraborty, Pradip Chakraborty and Prabir Chakraborty. The said Prsun Chakraborty is the defendant in one suit, Pradip Chakaraborty is the defendant in other suit and Prabir Chakraborty is the defendant of another suit. The plaintiff filed these three suits after service of notice upon each of them by describing them as trespassers. Since each of these three sons was occupying one room each out of these three rooms, three suits were filed praying for their eviction from the room in their respective possession describing them as trespassers therein.
The said three sons of Paritosh Babu contested their respective suits by contending that Shanti Debi and her brother Paritosh Babu were joint tenants under the plaintiff in respect of the suit premises and on the death of Shanti Debi, Paritosh Babu became the tenant of the suit premises. After the death of Shanti Debi, Paritosh Babu tendered rent to the landlady and on her refusal to accept the rent, Paritosh Babu deposited the rent to the credit of his landlady in the office of the Rent Controller. They claimed that on the death of Paritosh Babu all the three sons of Paritosh Babu inherited the said tenancy by virtue of the provision contained in Section 2 (g) of the West Bengal Premises Tenancy Act, 1997 and in view of the said provision their tenancy continued till 17th April, 2012 i.e. till the expiry of 5 years from the date of death of their father. The defendants in all those three suits thus, claimed that the present suit which was founded on the basis of the eviction notice issued by the plaintiffs' lawyer on 20th August, 2007 is not maintainable as cause of action for filing the said suit for eviction against the heirs of Paritosh Babu did not mature on the day when such eviction suit was filed against them. This is the pith and substance of the defence of those three brothers in their respective suits filed by the common landlady against them.
The parties led their respective evidence in all these three suits uniformly. The issues framed in all the three suits were also identical. The learned Trial Judge ultimately disposed of all the said three suits by delivering judgment in each of those three suits independently. However, the judgment in one suit is the verbatim copy of the other judgment passed in the other suits. The learned Trial Judge passed eviction decrees in all these three suits by holding that the Shanti Devi and Paritosh Babu were not joint tenants. The learned Trial Judge held that Shanti Debi was the sole and absolute tenant in respect of her tenancy under the plaintiff and on her death, the Paritosh Babu did not inherit the said tenancy as her heir as he did not fall within any of the specified heirs who could have inherited the said tenancy on the death of Shanti Debi as per Section 2(g) of the West Bengal Premises Tenancy Act, 1997. The learned Trial Judge, thus, held that the tenancy of Shanti Debi thus stood extinguished on her death and Paritosh Babu occupied the said tenancy of Shanti Debi illegally as an unlawful occupier and since the time of his death, his sons being the defendants in those three suits also have been occupying the suit premises illegally as unlawful occupiers. The learned Trial Judge further held that even if it is presumed that Paritosh Babu was a joint tenant along with Shanti Debi and on the death of Shanti Debi, Paritosh Babu became the sole tenant and on the death of Paritosh Babu on 18th April, 2007 his sons inherited the suit property as his heirs under Section 2(g) of the West Bengal Premises Tenancy Act, 1997 still then said three sons of Paritosh Babu cannot retain their possession in the suit properties after expiry of 5 years from the death of Paritosh Babu. The learned Trial Judge thus, held that since Paritosh Babu died on 18th April, 2007 the defendants became trespassers in respect of the tenancy of Shanti Debi's tenancy which was in their respective possession w.e.f. 17th April, 2007 and further since they did not vacate the suit premises even in terms of eviction notice served upon them, they are liable to be evicted from the suit premises. Accordingly, decree for recovery of khas possession was passed in all these three suits. The defendants were given two months time to vacate the suit premises, in default, the plaintiff was given liberty to recover vacant possession of the suit premises by evicting the defendants therefrom through execution.
The legality and/or propriety of the said judgment and decree passed in these three suits are under challenge in these three appeals before us.
Now Let us consider the merit of these three appeals in the facts of the present case we have already indicated above that Shanti Debi was admittedly a tenant in respect of the tenancy comprising of three rooms one kitchen along with bath and privy on the ground floor of the said premises under the plaintiff. She was a spinster. She died on 10th January, 2002. On the date of her death, West Bengal Premises Tenancy Act, 1997 was in operation. The said Act came into operation w.e.f. 10th July, 2001.
Let us now consider as to whether Paritosh Babu being the brother of the said tenant could have inherited the said tenancy by virtue of the provision of Section 2(g) of the West Bengal Premises Tenancy Act, 1997. Section 2(g) of the West Bengal Premises Tenancy Act, 1997 is set out hereunder:
"2(g) "tenant" means any person by whom or on whose account or behalf the rent of any premises is or, but for a special contract, would be payable, and includes any person continuing in possession after termination of his tenancy and, in the event of death of any tenant, also includes, for a period not exceeding five years from the date of death of such tenant or from the date of coming into force of this Act, whichever is later, his spouse, son, daughter, parent and the widow of his predeceased son, who were ordinarily living with the tenant up to the date of death of the tenant as the members of his family and were dependent on him and who do not own or occupy any residential premises, and 2[in respect of premises let out for non-residential purpose his spouse, son, daughter and parent who were ordinarily living with the tenant up to the date of his death as members of his family, and were dependant on him or a person authorised by the tenant who is in possession of such premises] but shall not include any person against whom any decree or order for eviction has been made by a Court of competent jurisdiction:
Provided that the time-limit of five years shall not apply to the spouse of the tenant who was ordinarily living with the tenant up to his death as a member of his family and was dependent on him and who does not own or occupy any residential premises, Provided further that the son, daughter parent or the widow of the predeceased son of the tenant who was ordinarily residing with the tenant in the said premises up to the date of death of the tenant as a member of his family and was dependent on him and who does not own or occupy any residential premises, shall have a right of preference for tenancy in a fresh agreement in respect of such premises 1[on condition of payment of fair rent]. This proviso shall apply mutatis mutandis to premises let out for non residential purpose".
On reading of the said provision of the said Act, we find that the brother of a tenant was not given any right of inheritance in respect of the tenancy of the tenant on his death even though the brother satisfies the other conditions mentioned therein i.e. (i) he was staying with the original tenant at the time of his/her death, (ii) he was dependent upon the tenant during his life time and (iii) he had no other residential house elsewhere. Section 2(g) of the said Act clearly indicates that in case of death of a tenant such of his heirs, namely, his spouse, son, daughter, parent and the widow of the predeceased son was given the right of inheritance in respect of the tenancy subject to fulfillment of the other three conditions as mentioned in the said provision as indicated hereinabove. Since right of inheritance was not given to the brother of a tenant, Paritosh Babu, in our considered view, could not have inherited the said tenancy of his sister, namely, Shanti Debi on her death, even though it is found to have been proved that he was residing with Shanti Debi at the time of her death and he was dependent on Shanti Debi during her lifetime and he had no other place of residence elsewhere. Though fact remains that he did not inherit the said tenancy from her sister under Section 2(g) of the said Act but the land lady by serving an eviction notice upon him under Section 6 (4) of the said Act on 4th July, 2006 admitted the tenancy of Paritosh Babu in the same tenancy which his sister had in her lifetime. Thus, even if we hold that Paritosh Babu did not inherit such premises but still then we have no hesitation to hold that he was recognized as a tenant by the landlady in the said eviction notice. Though we find that an eviction notice was served on 4th July, 2006 but the landlady did not file any eviction suit against the said Paritosh Babu during his lifetime by acting upon the said eviction notice. Thus the tenancy of Paritosh Babu continued till his death. He died on 18th April, 2007. Let us now consider as to whether the said tenancy of Paritosh Babu was inherited by his sons?
In this regard, we once again have to refer to the provision of Section 2(g) of the West Bengal Premises Tenancy Act, 1997. The said provision recognizes the right of inheritance of the sons of the tenant if the sons of the tenant can satisfy the three conditions laid down in the said provision as mentioned above.
Let us now consider as to whether the sons of the tenant i.e. Paritosh Babu's sons could have satisfied those three conditions of the said provision to become tenants and to enjoy protection of their stay in the tenancy of Paritosh Babu for a period of 5 years after the death of Paritosh Babu. One of such conditions for inheriting tenancy of the father is that the sons must satisfy that they were living in the suit premises along with the father namely, tenant at the time of his death. This condition in our view is satisfied in the instant case as we find from the evidence that all these three sons were living together with the father in joint mess in the suit premises.
Let us now consider as to the fulfilment of the condition for becoming a tenant in the suit premises through inheritance from the tenant. The other condition is that the sons must satisfy that they were dependent upon the father during his lifetime. On examination of the pleadings made out by the defendant in their respective written statement we find that they never claimed that they were dependent upon their father during the lifetime of the father. One of the sons i.e. Pradip Chakraborty stated in his cross-examination that he is running a business of agency. The other two sons were silent, as to their dependency on their father during the lifetime of the father. Thus, we hold that the said sons of Paritosh Babu failed to satisfy this condition and, as a result, in our considered view they failed to establish their claim for inheritance of the tenancy through their father Paritosh Babu as per the provision of Section 2(g) of the West Bengal Premises Tenancy Act.
Mr. Basu tried to impress upon us that even if the sons failed to prove that they were not financially dependent on the father, namely, the tenant but was otherwise dependent upon the father during the lifetime of the father, then the sons could have inherited the tenancy on the death of the father.
Mr. Basu, further submits that staying of the son with the father in the tenancy coupled with the fact that the sons did not have any other independent place of residence, will prove their dependency upon the father during the lifetime as the father had to provide a shelter to his sons in his tenancy. Or in other words, when the sons of the tenant had to depend upon their father for their accommodation in their father's tenancy, the sons according to Mr. Basu, could be deemed to be dependant upon their father. He further argued that if the provision of the said Act is given a narrow interpretation by holding that dependency means financial dependency only then almost in all cases where the tenant dies intestate leaving his major employed sons it will be difficult for them to prove that they inherited the tenancy of the father on his death even though they remained in possession with their father in his tenancy at the time of his death. In such case such sons could be evicted on the day following the death of his father. Mr. Basu submits that giving restricted interpretation of the said provision will destroy the very object of this Act.
This part of the submission of Mr. Basu does not appeal to us as we hold that providing an accommodation by the tenant to his son, cannot be construed as dependency upon father. In our considered view, if that be intention of the Legislature, then the condition regarding dependency upon the tenants would not have been provided in the said provision in addition to the condition that the sons should also prove that they were residing with the tenant in the suit premises at the time of his death.
In the facts as aforesaid, we hold that since the sons of Paritosh Babu could not establish that they were financially dependent upon their father or in other words, they were maintained by their father during the lifetime of the father, we have no hesitation to hold that the sons of Paritosh Babu could not inherit the said tenancy from their father. Since Paritosh Babu died on 18th April, 2007, all his said three sons became trespassers in the said premises with effect from the day following date of death of their father i.e. from 19th April, 2007. We thus, hold that the suit which was framed on the basis of the ejectment notice served upon the defendant on 20th August, 2007 is maintainable as the cause of action for filing the said suit duly matured on 19th April, 2007 and the said defendants failed to vacate the suit premises even after expiry of the notice period. We thus, conclude by recording that even though we do not agree with the learned Trial Judge that Paritosh Babu inherited the suit premises and on his death his sons also inherited the said tenancy and their tenancy continued till the expiry of 5 years from the date of death of their father but still then we agree with the ultimate conclusion drawn by the learned Trial Judge that the three sons of Paritosh Babu were trespassers in these suit premises and we hold that they remained in illegal occupation thereof since 19th April, 2007 i.e. the day following the date of death of their father and as such we maintain the eviction decrees passed by the learned Trial Judge against all these three defendants in their respective suits. We thus, do not find any merit in any of these three appeals.
All these appeals, thus, stand dismissed and the eviction decree passed by the learned Trial Judge in all these three appeals are affirmed. The appellants are given four weeks time to vacate the suit premises and/or to give up and deliver the vacant and khas possession of the suit premises to the plaintiff/respondent, in default, the plaintiff/respondent will be entitled to recover the vacant and khas possession of the suit premises by evicting those appellants from their respective suit premises in their occupation through execution in accordance with law.
Let the lower Court records be sent down to the Court below. Urgent Photostat certified copy of the judgment if applied for be given to the parties, as early as possible.
(Jyotirmay Bhattacharya, J.) I agree (Ishan chandra Das, J)