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Indian Oil Corporation Vs. Himangshu Kumar Ghosh - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtKolkata High Court
Decided On
Case NumberA.F.A.D. No. 574 of 1981
Judge
Reported inAIR1983Cal87,86CWN1099
ActsWest Bengal Premises Tenancy Act, 1956 - Section 13(1) and 13(3A)
AppellantIndian Oil Corporation
RespondentHimangshu Kumar Ghosh
Appellant AdvocateAmiya Narayan Mukherjee, Adv.
Respondent AdvocateT.K. Basu, ;Susanta Chatterjee, ;Alak Kr. Banerjee and ;Jayanta Kr. Dasgupta, Advs.
DispositionAppeal dismissed
Cases ReferredTara Sundari v. Dukha Haran
Excerpt:
- .....court of the learned subordinate judge, alipore, praying for eviction of the defendant from the suit premises on the ground of reasonable requirement for the use of occupation of himself and his youngest son sanjoy. according to the plaintiff after grant of probate of the will he and his youngest son sanjoy had been living in the 2nd and 3rd floors of the premises as aforesaid as the licensees of his other two sons, the legatees and they are demanding possession of the respective floors allotted to them. the plaintiff further pleaded that neither he nor his youngest son sanjoy had any other alternative suitable accommodation available to them. 3. the defendant-appellant contested the suit by filing a written statement. an objection was raised as to the maintainability of the suit. the.....
Judgment:

Anil K. Sen, J.

1. This appeal from an appellate decree is at the instance of the defendant in a suit for eviction which had been decreed concurrently by the two Courts below. One Sm. Tripti Ghose, wife of the present plaintiff was the owner of premises No. 13, South End Park, which is a four-storeyed building. The first floor and the garage at the ground floor of the said premises more fully described in the plaint schedule was let out by the said Sm. Ghose to the defendant-appellant, Indian Oil Corporation at a monthly rental of Rs. 500/- payable according to English calendar. The said Sm. Ghose died on January 7, 1976, leaving behind a will executed by her on November 11, 1975. The plaintiff as the executor appointed by the testatrix obtained probate of the will. By the will the testatrix bequeathed the 2nd floor of the premises as aforesaid to her eldest son Hirak, 3rd floor to her second son Himadri and first and ground floors to her youngest son Sanjoy subject to a right of residence for his life to the plaintiff.

2. The plaintiff after obtaining probate determined the tenancy in favour of the defendant by a notice to quit served on July 10, 1976, and further gave them the necessary notice of a suit under Section 13 (6) of the West Bengal Premises Tenancy Act (hereinafter referred to as the said Act). The plaintiff then instituted Title Suit No. 179 of 1976 in the 3rd Court of the learned subordinate Judge, Alipore, praying for eviction of the defendant from the suit premises on the ground of reasonable requirement for the use of occupation of himself and his youngest son Sanjoy. According to the plaintiff after grant of probate of the will he and his youngest son Sanjoy had been living in the 2nd and 3rd floors of the premises as aforesaid as the licensees of his other two sons, the legatees and they are demanding possession of the respective floors allotted to them. The plaintiff further pleaded that neither he nor his youngest son Sanjoy had any other alternative suitable accommodation available to them.

3. The defendant-appellant contested the suit by filing a written statement. An objection was raised as to the maintainability of the suit. The defendant denying all know-ledge about the will or the allotment made thereunder pleaded that the same was not at all bona fide and was intended entirely to prepare grounds for eviction of the defendant who had refused earlier the landlord's prayer for enhancement of the rent. They denied the reasonable requirement pleaded by the plaintiff and further pleaded that in any event the ground floor would have been more suitable for the use and occupation of the plaintiff and his son Sanjoy.

4. On the evidence led by the parties the learned subordinate Judge decreed the suit. In doing so, the learned subordinate Judge overruled the defence plea that the plaintiff had no right to institute the suit under Section 13 (1) (ff) of the said Act. The learned subordinate Judge held that the plaintiff being the executor the property vested in him under Section 211 of the Succession Act and be being also a legatee along with his youngest son Sanjoy was entitled to institute the suit based on the requirement of both of them. The learned subordinate Judge further found that though the other two sons of the plaintiff were not at Calcutta at the relevant time yet the second and third floors having been allotted in their favour possession by the plaintiff and his youngest son Sanjoy of those floors was precarious -- their position being no better than that of licensees. It was further found that the plaintiff and his youngest son had no other alternative accommodation of their own and their existing accommodation as licensees not being a suitable alternative accommodation, the plaintiff is entitled to a decree for eviction.

5. The defendant preferred an appeal, being Title Appeal No. 512 of 1980 which was heard and disposed of by the learned Additional District Judge, 7th Court, Alipore. The learned Additional District Judge affirmed the findings of the learned subordinate judge in confirming the decree for eviction. An additional objection based on a point of law was raised on behalf of the defendant before the learned Additional District Judge. It was contended that the suit, having been instituted within 3 years from the date of acquisition of the property under the will, is hit by the provisions of Sub-section (3-A) of Section 13 of the said Act. This objection was overruled by the learned Additional District Judge on the view that bequest under a will is not a transfer within the meaning of Section 13 (3-A) of the said Act, peeling aggrieved, the defendant has now preferred the present second appeal.

6. The learned advocate appearing in support of this second appeal has raised two points. Firstly, it has been contended by him that the plaintiff not being the owner of the suit premises is not entitled to obtain a decree for eviction on the ground of reasonable requirement in terms of Section 13 (1) (ff) of the said Act. Secondly, it has been contended by him that the term 'transfer' is wide enough to mean and include a transfer by way of testamentary succession so that the learned Additional District Judge went Wrong in his interpretation of Sub-section (3-A) of Section 13 of the said Act, when he held that a transfer under a testamentary succession does not come within the mischief of the said provision.

7. Both the points thus raised on behalf of the appellant have been seriously contested by the learned advocate for the plaintiff-respondent. He has supported the view taken by the two Courts below that the plaintiff as the executor under the will of the testatrix is entitled to claim a decree for eviction based on the requirement of himself and the other legatee Sanjoy, his youngest son. So far as the second point raised on behalf of the appellant is concerned, it has been contended by the learned advocate for the respondent that the term 'transfer' in Sub-section (3-A) of Section 13 of the said Act, must in the context be held to mean transfer inter vivos and not transfer by way of testamentary succession.

8. So far as the first point raised on behalf of the appellant is concerned, under the amended provision of Section 13 (1) (ff) of the said Act, one is entitled to get a decree for eviction if he can make out a ground that the premises are reasonably required by him as the landlord either for his own occupation if he is the owner or for the occupation of any person for whose benefit the premises are held. Hence, the pertinent question for us to decide is as to whether either or both the conditions as aforesaid can be said to have been fulfilled by the plaintiff in the present case. In our view, it cannot be disputed that once the probate has been obtained and until the administration is complete the plaintiff as the executor is vested with the estate which includes the suit premises and, as such, he is the landlord. He has instituted the suit as such based on his own requirement and on the requirement of his youngest son Sanjoy. Under the bequest, the suit premises have been given to Sanjoy subject to a right of residence in favour of the plaintiff. Therefore, both the plaintiff and his youngest son Sanjoy are the legatees under the will to whom the suit premises had seen allotted. It had been rightly pointed out by the learned subordinate Judge that the plaintiff with his limited right of residence during his lifetime is entitled to have a decree for eviction based on his own requirement. That apart under the bequest the suit property goes to Sanjoy absolutely subject of course to the right of residence of the plaintiff. The position of Sanjoy is that of a beneficiary and so long the executor does not administer the estate fully and make over possession to him the executor stands in the position akin to that of a trustee holding the property for the benefit of the beneficiary. Therefore, we find no reason why even if the plaintiff's own requirement be not taken into account he cannot sustain the suit on the requirement of the beneficiary for whose benefit he is holding the property. In that view, we are unable to uphold the first point raised in support of the appeal to the effect that in the present case the plaintiff was not entitled to claim a decree for eviction in terms of provision of Section 13 (1) (ff) of the said Act.

9. We now proceed to consider the next point raised in support of this appeal based on the bar incorporated by Sub-section (3-A) of Section 13 of the said Act, which was introduced by the West Bengal Amending Act XXXIV of 1969. Excluding the proviso this sub-section provides:

'(3-A). Where a landlord has acquired his interest in the premises by transfer, no suit for the recovery of possession of the premises on any of the grounds mentioned in Clause (f) or Clause (ff) of Sub-section (1) shall be instituted by the landlord before the expiry of a period of 3 years from the date of his acquisition of such interest.'

10. It is not in dispute that the original landlord Sm. Ghose died on Jan. 7, 1976. Probate of the will (Ext 1) was obtained on June 2, 1976, and the present suit for eviction was filed on Nov. 3, 1976. The appellant contends that since the plaintiff acquired his interest in the property by the will he must be treated as a transferee landlord and since the suit was filed well within 3 years Torn the date of his acquisition of such interest by the transfer, institution of such a suits barred by the aforesaid provision. The answer to this point is dependent upon finding out the true import of the terms 'has acquired his interest in the premises by transfer. Can it be said that the plaintiff in the present case has acquired his interest by transfer within the meaning of the aforesaid provision Undoubtedly, whatever interest he has acquired he has done so by the testamentary succession under the will and the important point which arises for our consideration is as to whether such testamentary succession constitutes transfer contemplated by the aforesaid provision. Our attention has been drawn to an earlier Bench decision of this Court in the case of S. Banerjee v. Usha Prova Sarkar, (1975) 79 Cal WN 632 where it was held that a bequest by a will is transfer within the meaning of Section 13 (1) (a) of the said Act. It should be remembered that Section 13 (1) (a) of the said Act provides that where a tenant without any previous consent in writing of the landlord transfers, assigns or sublets in whole or in part of the premises held by him he renders himself liable to eviction. Reliance is also placed on a Bench decision of the Bombay High Court in the case of Anant Trimbak v. Vasant Pratap, : AIR1980Bom69 . There, it was held that a transfer by way of a bequest under a will comes within the prohibition of Section 15(1) of Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, which provided in material part : 'It shall not be lawful after the coming into operation of this Act for any tenant to sublet the whole or any part of the premises let to him or to assign or transfer in any other manner his interest therein.'

11. The term 'transfer' in its widest connotation would undoubtedly mean and include both transfer inter vivos and testamentary succession under a will which is a transfer by operation of law. Transfer of property dealt with under the provisions of T. P. Act does not mean and include testamentary succession, under a Will. One must remember that when the legislature incorporated Sub-section (3-A) of Section 13 of the said Act, the legislature knew that for the purpose of T. P. Act, the term 'transfer' had a limited connotation of transfer inter vivos. Though the legislature has used the term 'transfer' both in Section 13 (1) (a) and Section 13 (3-A), one must look into the scheme and object to determine what the legislature really intended by the term 'transfer'. In Section 13 (1) (a) read in the light of Section 14 of the said Act, the legislature clearly intended to incorporate a prohibition of transfer in any form of the tenancy by the tenant. While in Section 13 (1) (a), the words used are 'transfers, assigns or sublets in whole or in part', in Section 14 of the words used are 'transfers or assigns his right in the tenancy or in any part thereof'. Similar is the position with Section 15(1) of the Bombay Act dealt with in the Bombay decision. In view of such terms, the Court of the Bombay High Court may have rightly decided that the prohibition under those provisions was wide enough to include transfer in any form including a transfer by way of testamentary succession under a will. But we are unable to hold that such was the intention of the legislature when it incorporated the prohibition or the bar under Sub-section (3-A) of Section 13 of the said Act. This provision was not drafted in so wide a terra as in the case of Section 13 (1) (a) or Section 14 of the said Act. Moreover, it would be necessary for us to look into the object and reasons for incorporation of such a sub-section in the Act which would clearly indicate the intention of the legislature. In the Statement of Objects and Reasons of the Bill leading to the Amending Act of 1969, it is stated that such amendment has been considered necessary for providing more relief to the tenants against eviction. In the legislative speech introducing the Bill the Minister stated that the problems of the tenants are many; there are landlords of different kinds; there is one class original owners, who are the old inhabitants of the City; these owner landlords are not affluent, they solely depend upon the rents received from the tenants. It has been ascertained from experience that two of the grounds of eviction, namely, requirement of the premises for own use of the landlords and for the purpose of building and rebuilding have been misused by the landlords. In the City of Calcutta and other towns there are millions of tenants who are left at the mercy of the landlords. In this background and further taking into consideration similar provisions in other States, it has been decided that some restrictions ought to have been imposed upon the transferee landlords prohibiting them from bringing ejectment suits against tenants within 3 years from their purchase. It is apparent from the objects intended to be achieved by introduction of the material Sub-section (3-A) that the legislature intended to protect tenants against misuse of two of the grounds of eviction, namely, requirement of the premises for own use of the landlords and for the purpose of building and rebuilding by taking recourse to transfer inter vivos. It would be pertinent to note, as we have indicated hereinbefore, that the term used in Sub-section (3-A) is merely transfer. We, therefore, feel inclined to agree with the learned Additional District Judge that the term 'transfer' in Sub-section (3-A) was not intended to mean and does not mean transfer in its wider connotation. It means a transfer inter vivos between an existing landlord and a transferee landlord who obtains the transfer to use his requirement which is not in existence so far as the existing landlord is concerned for obtaining a decree of eviction within the sanction of Section 13 (1) of the said Act. A learned single Judge of this Court in the case of Gorachand Dey v. Chayya Bagchi, (1974) 78 Cal WN 377 took the view that partition is not a transfer within the meaning of Sub-section (3-A) of the said Act. The view we take is well supported by an earlier decision of this Court vide (1981) 85 Cal WN 635. We are, therefore, of the opinion that the term 'transfer' in Sub-section (3-A) does not mean and include testamentary succession under a will as in the present case so that the suit as instituted cannot be said to be barred on the date of its institution under the provision of Sub-section (3-A) of Section 13 of the said Act. The second point raised on behalf of the appellant, therefore, fails and is overruled.

12. The two Courts have concurrently found that both the plaintiff and his youngest son Sanjoy reasonably require the suit premises for their own use and occupation. Their requirement is due to the fact that the probate of the will left by the testatrix having been obtained they cease to have any right to occupy the second and third floors where they are now residing. Their present occupation, therefore, is precarious and this Court had rightly pointed out in the case of Tara Sundari v. Dukha Haran, (1975) 79 Cal WN 638 that such occupation by sufferance cannot be said to be reasonably suitable accommodation for the plaintiff or the beneficiary, his son Sanjoy. The plaintiff made a clear case in the plaint that he has no alternative accommodation in the City except the first floor and the ground floor both of which are tenanted. This aspect was not specifically controverted in the written statement and on the evidence on record the two Courts below have concurrently found that the plaintiff or his son Sanjoy has no other suitable accommodation of their own. Such finding is not being assailed before us in this second appeal, the same being findings of fact. We, therefore, affirm the concurrent decree, for eviction passed by the two Courts below and dismiss this appeal. Taking into consideration the facts and circumstances we, however, feel inclined to grant sufficient time to the defendant Corporation to vacate the suit premises we, therefore, direct that the defendant Corporation going on depositing month by month a sum of Rs. 500/- towards mesne profits with the trial Court within the 15th of the month succeeding or paying the same amount on that account to the plaintiff in the same manner, this decree for eviction shall not be executable for a period of one year calculated on and from Sept. 1, 1982. In the event of any default in payment of mesne profits as directed, the decree shall forthwith become executable. There will be no order for costs in this appeal.

S.N. Sanyal, J.

13. I agree.


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