Raghava Rao, J.
1. This Civil Revision Petition raises an interesting question of law--whether the ejectment suit No. 2667 of 1946 which was laid against Vaduvam-balammal under Section 41 of the Presidency Small Cause Courts Act lapsed with the death of Vaduvambalammal so that the suit could not be maintained as against her brother, Ranganatham Pillai as her legal representative. The argument for the second defendant, the petitioner in this case, against whom the ejectment suit was decreed by the Court below is 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 proceeding is sought to be taken in the first instance is something which necessarily expires with the death of the licensee. It is urged that with the death of the first defendant there was no proceeding to be continued against the second defendant as 'holding under or by assignment from' the first defendant within the language of the section of the Act.
2. Reliance is placed for the submission on Chinnan v. Ranjithammal (1930) 60 M.L.J. 709 : I.L.R. (1930) Mad. 554, which holds after defining the legal incidents of a licence with reference to the English authorities as well as the provisions of Chapter VI of the Indian Easements Act that the legal representative of a deceased licensee must be deemed to be a trespasser. It is there pointed out at page 710 of the report after referring to Sections 59 and 62 of the Easements Act:
These provisions do not in terms lay down that a licence is revoked by a conveyance of the property. On the other hand, the English law, which undoubtedly forms the basis of the Indian. Statute seems clear that the licence terminates. 'If a man gives a licence and then parts with the property over which the privilege is to be exercised' says Pollock, C.B., in Coleman v. Foster (1856) 1 H. & N. 36 : 156 E.R. 1108, the licence is gone. A licence is a thing so evanescent that it cannot be transferred. The same view is to be found expressed in Wallis v. Harrison (1838) 4 M. and W. 539 : 150 E.R. 1543. There can be no doubt that the transferee is not bound by the licence. But does the licensee, from the moment the transfer takes place, become a mere trespasser, or should he be considered until the contrary appears, to hold under an implied licence? We do not think that it will become necessary in this case to decide that point, because, if the information given to us is correct (no evidence was taken), Poonjolai died in or about 1904, and there seems no doubt that the licence expired with his death. The learned City Civil Judge seems to be in error in holding that the defendants came in as licensees, if by that he means that, after Poonjolai died, the licence was (renewed) in their favour. Nor do we think, that the licence granted to Poonjolai became vested in them as his successors, A licence is not annexed to the property in respect of which it is enjoyed nor is it a transferable or heritable right, 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. Dronamraju Seetharamamurthi (1907) 18 M.L.J. 26 : I.L.R. (1907) 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 interest in the tenancy; and what is true of a tenant on sufferance would seem to be true also of licensee.
3. This decision has been distinguished by the Court below on the ground that there the proceeding was at the inception itself brought not against the licensee as here but against his legal representative. That, in my opinion, is a mode of differentiation based on an accident of fact and not on an essential of legal principle and cannot therefore be accepted. It is urged for the respondent that a different view is to be found expressed in Hirendra Bhusan v. Purnachandra (1948) 52 C.W.N. 843 in these terms:
According to Section 41 'occupant' comprises, a 'tenant or occupier or 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 of a tenant or a licensee or a person holding under or by assignment from such tenant or licensee, as the case may be, and if the demand be not complied with, he may apply for summons against the person who failed to deliver possession on such demand.
That is so, but, in my opinion, this view is erroneous. It does not and cannot lit into the principle of the discussion in Chinnan v. Ranjithammal (1930) 60 M.L.J. 709 : I.L.R. (1930) Mad. 554, a Bench decision of this Court, and I cannot therefore accept it.
4. It is further urged for the respondent, firstly that the provisions of Order 22, Civil Procedure Code, have been made applicable by Rules to proceedings under the Presidency Small Cause Courts Act, and secondly that Section 48 of the Act provides that in all proceedings under Chapter VII of the Act the Small Cause Court shall follow the procedure prescribed for a Court of first instance by the Civil Procedure Code. Order 22, Rule 4, Civil Procedure Code, however contemplates the survival of the right to sue which in the view already propounded in the foregoing cannot be postulated in the present case. Likewise, Section 48 of the Presidency Small Cause Courts Act contains the words 'as far as may be' which preclude the wholesale attraction of Order 22, Civil Procedure Code, to a case like the present. I am satisfied that the point taken for the petitioner must prevail.
5. It is submitted that my view considerably curtails the beneficial operation of Section 41 of the Presidency Small Cause Courts Act. That may be; but it is for the Legislature to consider the desirability of an amendment of the statute. I can only interpret it; I cannot re-write it. C.R.P. No. 1441 of 1948 is allowed with costs here and in the Court below.
6. In consequence C.R.P. No. 1751 of 1949 is also allowed but without costs.