AMAL KRISHNA ADITYA Vs. GANESH CHANDRA DAS (1998) Cal 221
| Citation | (1998) Cal 221 |
| Date of Judgment | March 02,1998 |
| Court | High Court of Calcutta |
| Case Type | Civil Appeal No.91 of 1998 |
| Appellant | Amal Krishna Aditya |
| Respondent | Ganesh Chandra Das |
| Bench | N Mitra, D Basu |
| Referred | Section 19, Section 13 The Hindu Succession Act, 1956, Section 106, Section 105, Section 13, Section 19 Transfer of Property Act, 1882 , Section 106. |
FACTS OF THE CASE
The claim was made by the plaintiff and respondent, who claimed, among other things, that they were the owners of the suit property and that the defendant and appellant were his monthly tenants for one room on the first floor and one room and a kitchen on the second floor, respectively, for a rent of Rs. 20/- per month payable in accordance with the English Calendar. The defendant/appellant had illegally converted the kitchen, which was rented to him, into a living room and had been using the space within his tenancy for cooking purposes, despite the plaintiff/respondent’s reasonable need for the suit premises for his own use and occupation as well as that of his family members.
The plaintiff/respondent further stated in the plaint that his family consisted of 5 (five) members, including himself, his wife, and his three sons, who were about 22 years old, 20 years old, and 17 years old, respectively; that the plaintiff/respondent was occupying only one room and a kitchen in the same premises, which was extremely insufficient and unsuitable to meet the plaintiff/respondent’s minimum demands; and that the second and third sons of the plaintiff/respondent were students.
By serving the defendant/appellant with a notice to vacate, the plaintiff/respondent established the defendant/appellant’s tenancy, but the defendant/appellant disregarded the notice.
The defendant/appellant filed this appeal in response to the judgement and decree rendered in favour of the plaintiff/respondent in Ejectment Suit No. 2 of 1976 by the learned Judge, VIII Bench, City Civil Court in Calcutta, on February 13, 1985.
The plaintiff/respondent filed Ejectment Suit No. 2 of 1976 in the City Civil Court in 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”), among other reasons, on the basis of reasonable necessity.
ISSUES
- Is the lawsuit still valid in its current form?
- Is the lawsuit bad because the required parties didn’t join?
- Has the serving of an eviction notice determined the defendant’s tenancy? If so, is the aforementioned notice sufficient, valid, and legal?
ARGUMENTS
The trial court found that the plaintiff/respondent had admitted shared tenancy with regard to Issues No.1 and 2 mentioned above. Rent receipt Exhibit ‘B’ was likewise produced by the plaintiff/respondent in the names of the defendant/appellant and his brothers. He therefore had no doubt that it was a joint tenancy case, and relying on the Supreme Court’s ruling in the Kanji Manji case, the trial court determined that the suit as framed was maintainable and that it was not bad for the absence of necessary parties. As a result, the aforementioned Issues No.1 and 2 were resolved in the plaintiff/respondent’s favour, and as far as the Supreme Court was concerned.
Regarding Issue No. 3, the trial court also ruled that the defendant/appellant admitted service of the notice and that nothing was raised in opposition to its validity, sufficiency, or proper service, other than the fact that it was addressed to and served only on the defendant/appellant even though the tenancy was joint. In light of the aforementioned Supreme Court decision, the trial court concluded that the notice was valid, legal, and sufficient and had been served as required. The aforementioned Question was also satisfactorily resolved in the respondent’s favour.The trial court further noted that it was true that the defendant/appellant paid rent to the rent controller on his own without identifying his brothers or stating that he was also acting on their behalf.
After reviewing the evidence on record and the pleader commissioner’s report in relation to the issue of the plaintiff’s and respondent’s reasonable requirements, the trial court determined that the plaintiff and respondent had proven their case regarding the reasonable requirements of the suit premises for his own use and occupation as well as for the members of his family. Regarding the issue of the plaintiff/respondent’s claim that the suit premises had been damaged, the trial court also observed that the plaintiff/respondent had established that the defendant/appellant had done so through their claims that the kitchen had been converted into a living room and a portion of an open area had been turned into a kitchen without their consent and without authorization. The defendant/appellant had filed the current appeal with this Honourable Court in opposition to the aforementioned judgement and decree.
JUDGEMENT
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.
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.
In the aforementioned decision, the Division Bench further held, among other things, that as between the heirs themselves, they are tenants-in-common and not joint tenants in the sense that, in the event of one of them passing away, his interest will not pass by his survivorship to the other tenants, but rather will be transferred to his heirs in accordance with the law of inheritance. Joint tenants’ interests in the tenancy will pass to the other tenants by survivorship if one of them passes away. Similar to this, when the lone tenant passed away, his heirs took over the lease as tenants-in-common, but in terms of their connection with the landlord, none of the heirs held any estate in severalty.
After the passing of his father, the defendant alone had assumed the role of tenant under the respondent. His other brothers, however, had effectively given up their rights as tenants in relation to the suit premises by acting as described above, even though they had not done so in writing. This was especially true given that they admittedly did not reside in the suit premises but rather lived in America and did not visit the suit premises.
Second, even if it is determined that the aforementioned facts and circumstances of the case do not demonstrate any surrender and/or relinquishment of the tenancy rights of the defendant/appellant’s other brothers, the acts and conducts of the defendant/appellant and his other brothers as stated above would still persuade us that the defendant/appellant represented the entire tenancy. Accordingly, the principle of representation would also obviously apply to the present case, and an order for representation would be made.
Therefore, the contested notice to vacate given on the defendant/appellant and the lawsuit brought by the landlord against the defendant/appellant are both valid, admissible, and maintainable in law, respectively, in any form.
Let’s go on to the suit’s merits. According to the information presented by the parties and the Advocate Commissioner, we may reasonably conclude that the plaintiff/respondent’s requirement, as pleaded in the plaint, has been adequately proven. The lawsuit was launched on the basis of a reasonable requirement.
Thus, we find no justification for interfering with the trial court’s judgement, which we hereby affirm.
As a result, the appeal is denied without a cost order. The appellant has four months from the filing date to leave the suit premises, after which the decree will become enforceable.
REFERENCES
The Transfer of Property Act,1882
The Hindu Succession Act, 1956
This Article is written by Aditi Shakya of Institute of Law, Jiwaji University Gwalior, Intern at Legal Vidhiya.
