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Sakinabi and ors. Vs. Salebhai Hasanali Engineer - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. No. 963 of 1963
Judge
Reported inAIR1967Bom9; (1965)67BOMLR571; ILR1966Bom100
ActsPresidency Small Cause Courts Act, 1882 - Sections 41; Code of Civil Procedure (CPC), 1908 - Order 22, Rules 1 and 2; Succession Act, 1925 - Sections 305 and 306
AppellantSakinabi and ors.
RespondentSalebhai Hasanali Engineer
Appellant AdvocateA.A. Peerbhoy, ;Shah and ;Gilman Fernandes, Advs.
Respondent AdvocateC.P. Patel, Adv.
Excerpt:
.....cause courts act--whether such proceedings can be continued after licensee's death against his legal representatives.;ejectment proceedings against a licensee under section 41 of the presidency small cause courts act, 1882, do not expire with his death but are liable to be continued upon death of the licensee against his legal representatives.;the ejectment application proceedings against persons mentioned in section 41 of the act are proceedings relating to property rights and/or recovery of properties and are not proceedings which are. relating to personal causes of action. these proceedings do not die with the death of a party to the proceedings whether he may be applicant and/or opponent but are such as could be continued against legal representatives of a deceased party to the.....k.k. desai, j.(1) this is a revisional application be heirs and legal representatives of one damji lavji damani, being the original rspondent, hereinafter referred to as 'the licensee', in the ejectment application no, 98/1232/e of 1960 filed by the opponent (original applicant), hereinafter referred to as 'the licensor', in the court of small causes at bombay under section 41 in chapter vii of the presidency small cause courts act, seeking to eject the licensee from the premises mentioned in the application. the licensee died intestate at bombay on may 31, 1962, leaving him surviving as his only heirs and legal representatives the petitioners in this revisional application. by his application dated november 12, 1962, the licensor applied to the court of small causes to set aside the.....
Judgment:

K.K. Desai, J.

(1) This is a revisional application be heirs and legal representatives of one Damji Lavji Damani, being the original Rspondent, hereinafter referred to as 'the licensee', in the ejectment Application No, 98/1232/E of 1960 filed by the Opponent (Original Applicant), hereinafter referred to as 'the licensor', in the Court of Small Causes at Bombay under Section 41 in Chapter VII of the Presidency Small Cause Courts Act, seeking to eject the licensee from the premises mentioned in the application. The licensee died intestate at Bombay on May 31, 1962, leaving him surviving as his only heirs and legal representatives the petitioners in this revisional application. By his application dated November 12, 1962, the licensor applied to the Court of Small Causes to set aside the abatement of his application and to condone delay in the making of the application and bring on the record of the ejectment application the names of the above petitioners as Defendants 1 to 8 as legal representatives of the licensee.

(2) The petitioners in this revisional application contend that the Court of Small Causes ought not to have made the order dated February 21, 1963, granting the application of the licensor. Their case is that the Court below ought to have held that since the licensor's case against the deceased licensee was that he was a licensee and his licence had been revoked, the ejectment application came to an end (altogether) upon the death of the licensee on May 31, 1962. the proceedings for ejectment under Section 41 of the Act are such as cannot be continued against the legal representatives of the licensee. The reason for this, according to the petitioners, is that a license is not heritable. The proceedings under Section 41 could only lie against a licensee. These proceedings filed against any particular person are not liable to be continued against his legal representatives, because a licence is not heritable and does not create any rights in the legal representatives of the original Opponent in the ejectment application.

(3) In this connection, the Petitioners rely upon the decision of a single Judge, of the High Court at Madras in the case of Ranganatham Pillai v. Govindarajulu Naidu : (1950)2MLJ280 . In the above case, a landlord had filed an ejectment application under Section 41 of the Presidency Small Cause Courts Act against two Defendants. the Defendant 1 to whom the licence had been granted (licensee) died pending the hearing of the ejectment application. The applicant applied to the trial Court for having the 2nd Defendant brought on record as legal representative of Defendant 1 in the ejectment application. The trial court granted that application. In the revisional petition before the High Court of Madras, on behalf of the 2nd Defendant, it was contended that 'the cause of action contemplated by section 41 of the Presidency Small Cause Courts Act, where a licensee happens to be the person against whom a proceedings is sought to be taken in the first instance is something which necessarily expires with the death of the licensee.' The contention urged was that with the death of the 1st Defendant there was no proceeding to be continued against the 2nd Defendant as 'holding under or by assignment from' the 1st Defendant within the language of Section 41 of the Act. the contention was accepted by the Court. In that connection, the Court disapproved of the observation made by the High Court of Calcutta in the case of Hirendra Bhusan v. Purnachandra (1948) 52 CWN 843. The Court referred to the decision of the High Court of Madras in the case of Chinnan v. Ranjithammal ILR 54 Mad 554: AIR 1931 Mad 216. It is necessary to point out that the first part of the observations in the case of ILR 54 Mad 554: AIR 1931 Mad 216quoted in the case of : (1950)2MLJ280 related to the position of a licensee whose licensor sells away the immovable property in question. It is observed that upon transfer and sale of the property and the licensee ceases to have any rights altogether and the licence stands revoked upon further and sale of the property. The Court further observed: 'A licence is not annexed to the property in respect of which it is enjoyed nor is it a transferable or heritable rights, but is a right purely personal between grantor and licensee. Unless a different intention appears, it cannot even be exercised by the licensee's servants or agents (Section 56). Accordingly in their occupation of the plot and especially so since the death of Poonjolai, the defendants have been mere trespassers. . . . . . . . . . We need not look further for authority than to Vadapalli Narasimham v. Dronamaraju Seetharamamurthi ILR (1908) 31 Mad 163, for the proposition that the representatives of a tenant on sufferance are mere trespassers, since they cannot be regarded as succeeding to any inters in the tenancy; and what is true also of a licinsee.' Now, in connection with the above observations of the High Court of Madras in the case of ILR 54 Mad 554: AIR 1931 Mad 216 we respectfully agree that a licence is not annexed to the property, nor is it transferable or heritable. We further agree that a tenant on sufferance is a mere trespasser and what is true of a tenant on sufferance would seem to be true also of a licensee. The total result of the above position is that upon revocation of a licence the licensee ceases to have any lawful right to enter upon and /or to continue in occupation of the property in question. The character of his possession and occupation subsequent to the valid revocation of the licence is that of a trespasser.

(4) In this very connection and in connection with the contents of S. 41 of the Act, in the case of (1948) 52 Cal WN 843 the Calcutta High Court, inter alia, observed : 'According to Section 41, 'occupant' comprises, a 'tenant or occupier of any person holding under or by assignment from him', and the first paragraph of the section suggests that by 'occupier' is meant a person occupying the property by permission of the applicant or any person through whom the applicant claims, that is to say, a licensee. The effect of the section, generally stated, therefore, is that the landlord may demand possession from a tenant or a licensee or a person holding under by assignment from such tenant or licensee, as the case may be, and if the demand be not complied with, he may apply for summon against the person who failed to deliver possession on such demand'. Raghava Rao J. in deciding the case of : (1950)2MLJ280 dissented from the views expressed by the High Court of Calcutta as quoted above. As we will presently point out, it appears to us that the construction of Section 41 of the Act as decided by the High Court of Calcutta in the manner mentioned above is correct. With respect, we do not agree with Raghava Rao J. that the opinion expressed by the High Court of Calcutta is erroneous.

(5) Now, in this connection, we will first refer to the relevant provisions in Section 41 of the Act which run as follows:-

'41. Summons against person occupying property without leave. When any person has had possession of any immoveable property x x x x x x as the tenant, or by permission, of another person, or of some person through whom such other person claims, and such tenancy or permission has determined or been withdrawn.

and such tenant or occupier or any person holding under or by assignment from him (hereinafter called the occupant) refuses to deliver up such property in compliance with a request made to him in this behalf by such other person, such other person (hereinafter called the applicant) may apply to the Small Cause Court x x x x x x'.

Apparently, the provisions in Section 41 provide for a summary application for ejectment of parties who by consent may have been enjoying rights of occupation of properties. These parties have been mentioned in the section as (I) tenants, (ii) occupants by permission of another person and (iii) occupants to whom permission may have been granted by the parties who had permission. Against all such parties, ejectment proceedings are liable to be instituted under Section 41. The only condition for institution of such application is that the tenancy or permission must be determined or must have been withdrawn. According to the licensor, the original licensee Damji Lavji Damani was given a licence to be on the premises mentioned in the application. His licence had been revoked by the licensor prior to the institution of the ejectment application. The obvious result of that revocation was as already discussed above that the licensee was from the date of revocation of the licence a trespasser in occupation of the premises mentioned in the application. he thereafter had no right whatsoever according to the licensor to continue to occupy the premises. The question is as to how the proceedings by way of ejectment application were affected by reason of licensee's death on May 31, 1962. Now, in this connection the provisions which became applicable were the provisions in Order 22, Rules 1 and 4 of the Code of Civil Procedure. The relevant parts of these rules provide:

'1. The death of a X X X X defendant shall not cause the suit to abate if the right to sue survives.'

'4. (1) Where X X X X a sole defendant or sole surviving defendant dies and the right to sue survives the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit. x x x x x x'.

(6) In connection with the question of the right to sue surviving upon death of a person, the relevant statutory provisions are contained in Sections 305 and 306 of the Indian Succession Act. These sections provide as follows:

'305. An executor or administrator has the same power to sue in respect of all causes of action that survive the deceased, and may exercise the same power for the recovery of debts as the deceased had when living.

306. All demands whatsoever and all rights to prosecute or defend any action or special proceeding existing in favour of or against a person at the time of his decease, survive to and causes of action for defamation, assault, as defined in the Indian Penal Code, or other personal injuries not causing the death of the party; and except also cases where, after the death of the party, the relief sought could not be enjoyed or granting it would be nugatory.'

The maxim of law in this connectionism actio personalis moritur cum persona (the right of personal action dies with the person). The converse of this has been accepted as correct by all Courts throughout. The converse it that property rights in favour of and or against any person continue to exist in favour of or against legal representatives of a deceased party-litigant. It is for this reason that one finds the above provisions in the Code of Civil Procedure and the Indian Succession Act. The questioning connection with bringing legal representatives on record (in the language of Section 306 of the Indian Succession Act) would be:-

'Whether the cause and or the suit relates to defamation, assault, as defined in the Indian Penal Code, or it relates to other personal injuries not causing the death of the party and whether it is such as after the death of the party the relief sought could not be enjoyed or granting it would be nugatory.' In this connection, reference may be made to the provisions in the Fatal Accidents Act and similar statutes. In our view, it is not possible for us to form the opinion that the ejectment application proceedings against persons mentioned in Section 41 of the Presidency Small Cause Courts Act are proceedings not relating to property rights and/or recovery of properties. These are not proceedings relating to personal causes of action. These proceedings do not die with the death of a party to the proceedings whether he may be applicant and/or opponent. On the contrary these being proceedings for recovery of properties and for enforcing rights to properties, are such as could always be continued against legal representatives of a deceased party to the proceedings.

(7) Having regard to the above discussion, with respect, we are unable to accept as correct the ratio of the decision in the case of : (1950)2MLJ280 mentioned above. We respectfully disagree with the observation in that case that the ejectment proceedings under Section 41 of the Presidency Small Cause Courts Act are something which necessarily expire with the death of the licensee. In our view, these are proceedings which are liable to be continued upon death of the Opponent in the proceedings against his legal representatives.

(8) In this connection, it is necessary to mention that by the written statement filed by the licensee, it was, inter alia, contended that he was not a licensee as alleged in the application. Infact, he was a sub-tenant. Having regard to his position as a sub-tenant, he also contended they by the notice mentioned in the application the Applicant was not entiled to terminate his rights as a sub-tenant. He had acquired rights of a tenant. He was not liable to be ejected from the premises. Now, these were contentions relating to exercise and enforcement of proprietary rights on behalf of the licensee. It is difficult to see how the legal representatives of the licensee are not entiled to adopt these contentions and if they are right how they are liable to be ejected in the ejectment application proceedings. We have referred to the above contentions made in the written statement only because these go to show that contentions of various kinds relating to proprietary rights would generally arise in ejectment applications filed under Section 41 of the Act. In connection with the licensor's contention that the licensee had become a trespasser having regard to revocation of his licence and the contentions of the licensee of the nature mentioned above, it is clear that the proceedings were and are liable to be continued upon death of the licensee against his legal representatives.

(9) In the result, the revisional application is dismissed. Rule discharged with costs.

IJ/JRM/G.G.M.

(10) Petition dismissed.


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