Skip to content

Jiban Roy Choudhury Vs. Sm. Taramoyee Debi - Court Judgment

LegalCrystal Citation
CourtKolkata High Court
Decided On
Case NumberA.F.A.D. No. 833 of 1977
Reported inAIR1979Cal339
ActsWest Bengal Premises Tenancy Act, 1956 - Section 13(1)
AppellantJiban Roy Choudhury
RespondentSm. Taramoyee Debi
Appellant AdvocateSaktinath Mukherjee and ;Asis Chandra Bagchi, Advs.
Respondent AdvocateBankim Chandra Dutt and ;Sm. Bulu Das, Advs.
DispositionAppeal dismissed
Cases ReferredYogamaya v. Santi Sudha
- .....tenant at a monthly rent of rs. 90/- per month payable according to english calendar month. the suit property belonged to satish chandra banerjee since deceased and the tenancy was created by him. by a will satish, who was childless, bequeathed the said property to his wife niharika in life interest, thereafter to taramoyee, wife of his brother's son abani, in life interest and thereafter to her sons absolutely. he also bequeathed premises no, 221/6b, rash behari avenue for life to his wife niharika, thereafter to daughter radharani wife of his brother's son dharani, also for life and thereafter to her sons absolutely.2. niharika predeceased her husband and on the death of satish chandra banerjee, taramoyee and radharani applied for grant of letters of administration in respect of the.....

1. This is an appeal against a decree of reversal. The plaintiff along with her sister Radharani instituted the suit on March 23, 1973 for recovery of possession of portion of the ground floor of premises No. 221/6A, Rash Behari Avenue, P.S. Ballygunge, Calcutta which defendant held as a monthly tenant at a monthly rent of Rs. 90/- per month payable according to English calendar month. The suit property belonged to Satish Chandra Banerjee since deceased and the tenancy was created by him. By a will Satish, who was childless, bequeathed the said property to his wife Niharika in life interest, thereafter to Taramoyee, wife of his brother's son Abani, in life interest and thereafter to her sons absolutely. He also bequeathed premises No, 221/6B, Rash Behari Avenue for life to his wife Niharika, thereafter to daughter Radharani wife of his brother's son Dharani, also for life and thereafter to her sons absolutely.

2. Niharika predeceased her husband and on the death of Satish Chandra Banerjee, Taramoyee and Radharani applied for grant of Letters of Administration in respect of the two premises mentioned above which was duly granted to them on March 30, 1967 in Act XXXIX Case No. 198 of 1962. It was stated in the plaint of the suit that Taramoyee and Radharani had been in occupation of the respective premises separately as directed in the will. Radharani was joined also as a co-plaintiff with Taramoyee to avoid all the controversy. The plaintiff's case was that the suit premises were required for accommodation for herself, her sons and their family members as her present accommodation in the first floor and portion of ground floor was insufficient for the purpose. It was stated that the plaintiff Taramoyee had no reasonable suitable accommodation for her and the members of her family and she required the suit premises reasonably for accommodation for herself and her family members, as detailed in the plaint. The tenancy was terminated with expiry of Sept. 1972 by notice to quit dated July 27, 1972. This notice was duly served but the defendant failed to vacate the suit premises. The suit was filed as already stated claiming the decree for ejectment and khas possession of the premises and also for a decree for damages on payment of additional court fees.

3. The defendant contested the suit filing his written statement denying the case of requirement made by the plaintiff. It was also denied that the plaintiff Taramoyee had no reasonably suitable accommodation for her or for other members of her family or that she required the suit premises reasonably. It was further stated that she had enough accommodation at her disposal at premises No. 221/6A, Rash Behari Avenue, Calcutta. It was also stated that the notice to quit was invalid and insufficient and not served as alleged. It was accordingly submitted that the suit should be dismissed.

4. In course of proceeding, it appears, on Dec. 20, 1974 a petition was filed under Order 22 R- 2 read with Section 151 of the Civil A P. C. by Taramoyee plaintiff No. 1 stating that the plaintiff No. 2 Radharani died on Sept. 1, 1974 and right to sue survived on Taramoyee alone and accordingly it was necessary to cause entry to that effect and to grant leave to her to proceed with the suit alone. This application was disposed of by Order 47 dated May 7, 1975 which is as follows:--

'Both parties filed hazira. Defendant is present through their lawyers. The petition under Order 22 Rule 2 C. P. C. is taken up for hearing. The learned Advocate for the defendant stated before me that he had no objection if the petition under Order 22 Rule 2 is allowed.

This is a petition under Order 22, Rule 2, C. P. C. filed by the plaintiff stating that the plaintiff No. 2 died on 1-9-74 and the right to sue survives to the plaintiff No. 1 (petitioner) alone. Learned lawyer for the defendant having no objection let the name of plaintiff No. 2 be deleted from the cause title of the plaint. The plaintiff No. 1 is hereby permitted to proceed with the suit.'

5. On a trial of evidence the learned Munsif relying on the decision in Bhagyalakshmi Dey v. Nanda Dulal Kundu, (1973) 77 Cal WN 817 held that since the plaintiff No. 1 who was the administrator to the estate of the testator holding the beneficial interest for life, was not owner of the suit property, the suit by her was not maintainable. It was further held that the plaintiff's reasonable requirement of the suit premises was not established. In regard to issue of notice as also other issues it was stated by the learned Munsif that as the issues were not pressed, it was not necessary to decide the issues. The suit was accordingly dismissed.

6. On appeal, the appellate court held that the suit was instituted by the plaintiff as owner-legatee and not as administrator. It was further held that the plaintiff acquired ownership over the property and was entitled to enjoy the same in exclusion of all others during her lifetime as absolute owner subject to restriction on alienation. The plaintiff, it was held, was the owner of the property and not entitled merely to the beneficial interest in the property. As to requirement it was held that the plaintiff reasonably required the suit premises for her personal use and occupation and also of the members of her family. The suit was held to be maintainable and the plaintiff was 'held to be entitled to a decree for ejectment on the ground of her own use and occupation. The appeal was allowed and the suit was accordingly de--creed. This appeal is against this decision.

7. Mr. Saktinath Mukherjee, learned advocate appearing for the appellant, submitted firstly that the notice of ejectment was given by the two ladies as Executors (wrongly described in place of administrator) whereas the contract of tenancy that was pleaded and established was by plaintiff No. 1 only. The decision in Parekh Brothers v. Kartick Chand, : AIR1968Cal532 was referred to wherein it was held that while in the suit for eviction the case was made that there were three landlords and it was proved as contended by the defendant that only one of them was the landlord, the court held that the plaintiff could not succeed and the contention that the names of two other plaintiffs should be treated as surplusage was rejected. In this case however, as has been pointed out by Mr. Dutt learned Advocate for the respondent, the tenancy was created by the original owner Satish Chandra Banerjee and not by the two plaintiffs. When the notice of termination was given the estate of Satish Chandra was under the administration of the two administrators, the plaintiffs Taramoyee and Radharani and it was also stated in the plaint that in terms of the will the two ladies had taken possession of their respective properties bequeathed to them. Further, on the death of Radharani the application under Order 22, Rule 2 was allowed in effect on consent as quoted above. That being the position I do not think that there is any infirmity in the frame of the suit in respect of parties. This contention accordingly must be overruled.

8. The real controversy between the parties (is) as to whether the plaintiff Taramoyee is the owner of the property, whereof the suit premises constitute a portion, to sustain the decree under Section 13 (1) Clause (ff) of the West Bengal Premises Tenancy Act, 1956. Mr. Mukherjee drew my attention to Article 176 of Mulla's Hindu Law where the learned author was dealing with the widow's estate under the Hindu Law. It has been stated therein that the widow or other limited heir is not a tenant for life but is the owner of the property inherited by her, subject to certain restrictions on alienation, and subject to its devolving upon the next heir of the last full owner upon her death. The whole estate is for the time vested in her and she represents it completely. She is the owner of the property inherited from her husband except that she cannot alienate in any manner the corpus of the property except for legal necessity or for the benefit of the estate or with the consent of the next reversioners and so long as she is alive no one has any vested interest in succession as held in Janaki Ammal v. Narayanswami, AIR 1916 PC 117 and Kalishankar v. Dhirendra, : [1955]1SCR467 . According to Mr. Mukherjee, the life interest the plaintiff had in the premises conferred by the will did not make her the 'owner' of the premises as she was merely a life tenant with the vested interest of the legatees in the property as provided in the will in terms of the will as also Section 119 of the Indian Succession Act, 1925. The concept of 'full owner' in Section 14 of the Hindu Succession Act, 1956 used in the context of property denotes a right indefinite in point of user, unrestricted in point of disposition, unlimited in point of duration and heritable as such right by the heirs of the owner which is not the position here.

9. The meaning of the expression 'owner' was considered by this Court in Yogamaya Pakhira v. Santi Sudha Bose, ILR (1968) 2 Cal 70 when P. N. Mookerjee, J. speaking for the court observed:

'The two expressions 'owner' and 'permanent lesses' are in our view not synonymous, and we find nothing in the present statute either in its language or in its scheme, object or purpose to construe the term 'owner' as used in the above section as including a permanent lessee. On the other hand, it seems to us that it would serve more the object and purpose of the statute and it would certainly be more in consonance with its language and scheme to construe the two expressions differently, that is, in their normal or usual sense. Neither the rule of plain grammatical or literal construction nor the golden rule of intention would support a different view. This construction will also be emphasised and supported and amply made clear if we remember that in the previous Act namely the Act of 1950 in the relevant part of the statute the corresponding phrase or expression was quite general or unrestricted, namely for his own occupation. There was no limitation on the said phrase or expression and there was no necessity of adding the present qualifying words 'if he was the owner' unless the Legislature intended to put a restriction or limitation on the above-quoted phrase or expression in question. It is thus clear from the changed or altered language of the statute or the statutory provision in question that, in enacting the present statute (The West Bengal Premises Tenancy Act, 1956), the Legislature's intention was to allow the landlord's claim of ejectment on the ground of reasonable requirement of the premises for his own occupation only in cases where the landlord was the owner of the said premises and, in that view, the word 'owner' must be given its ordinary dictionary or usual meaning and would not include a permanent lessee.

We may point out further that, if a permanent lessee is included within the word 'owner' there will be no reason for excluding a lessee for a long term and, if a lessee for a long term is to be included, it. would be hardly possible to limit the period or term in that behalf with the result that the added words or expression 'if he is the owner1 would become meaningless and unnecessary and wholly redundant. This will plainly go against the settled rule of statutory construction that no words in a statute should ordinarily be held to be redundant there being, in the matter of the present statute, no exceptional circumstances or compelling reasons for holding the contrary.

In the premises we would accept the appellant's argument that the term 'owner' as used in the section before us, should receive its ordinary connotation in the sense of meaning a person who has the full or absolute ownership of the disputed property. We would accordingly hold that the plaintiff-respondent, who is only a permanent lessee of the property in question, would not be entitled to the relief of ejectment in the instant suit.'

10-11. In Carritt Moran & Co. P. Ltd. v. Ronea Ltd., ILR (1969) 1 Cal 347 the Division Bench following Yogamava's case, P. N. Mookerjee, J. delivering the judgment of the Court, observed:

'The plaintiff, in order to succeed in the instant suits, must prove that it is the owner of the disputed premises. Admittedly the plaintiff is only a lessee, though for a long term, namely 66 years, and according to the decision of this Court in Yogamaya v. Santi Sudha, with which we entirely agree, even a permanent lessee cannot claim to be the owner within the meaning of the aforesaid statutory provision.'

12. These decisions were on interpretation of Clause (f) of Section 13 (1) of the Act which was split up to Clauses (f) and (ff) by Amendment Act XXXIV of 1969 but the provisions 'if he is the owner' were attached to the landlord under both clauses, original (f) and amended (ff) in similar terms.

13. In Salmond's Jurisprudence (12th Edition) ownership is described as follows (Chapter 8).

'Ownership denotes the relation between a person and object forming the subject-matter of his ownership. It consists in a complex of rights, all of which are rights in rem being good against all the world and not merely against specified persons. Though in certain situation some of these rights may be absent, the normal cases of ownership can be expected to exhibit the following incidents.'

14. The incidents are (i) right to possess the thing though he may be wrongfully deprived of it or may have voluntarily divested himself of it (ii) right to use and enjoy the thing owned, right to manage and use, to the income from it such right to possess being in fact liberties; (iii) right to consume or destroy as also to alienate or transfer the thing by will after death or by conveyance during lifetime, (iv) right of ownership being indeterminate in duration such interest being perpetual, determined neither by any set point (as the interest of a lessee or bailee) nor by owner's death, as the property owned can descend to his heirs or while the new owner's interest is to continue, if the property is sold to him prior to death, unaffected by such death, (v) ownership is residuary in character and when the lesser rights are given away, their extinction revives all rights in the owner.

15. The absolute owner of a property has the right to assert his title to the property as also all rights of ownership allowed by the legal system subject to provisions of public law. Such right is also limited by adverse dominant rights of an encumbrancer or of the possessor. All the same while a thing is owned by one person only at a time, a duplicate ownership is perfectly possible. Two or more persons may at the same time have ownership of the same thing vested in them as co-owners.

16. Apart from such co-ownership, there may be a fragmentation of ownership in respect of time and the rights of ownership can be split between several persons on a temporal plane. The method would be for a man to convey the land to his son A for life and thereafter to his other son B in fee simple. The learned author observes:--

'In this case neither son becomes sole owner of the land; nor would they be co-owners. Each is sole owner of a separate estate or interest in the land; A has a life estate which is vested in possession; B has a fee simple remainder vested not in possession but in interest.'

17. Such concept of ownership by vesting of legacies has been expressly recognised in Section 119 of the Indian Succession Act, 1925. Another instance of duplicate ownership is a trust which allows for the separation of powers of management and the rights of enjoyment. The learned author describes the legal position as follows:--

'Trust property is that which is owned by the two persons at the same time, the relation between the two owners being such that one of them is under an obligation to use his ownership for the benefit of the other The former is called the trustee and his ownership is trust ownership; the latter is called the beneficiary and his is beneficial ownership.'

18. The trustee to whom the conveyance is made as the legal owner is to manage the property and hold the profits on trust for the beneficial owners of the property.

19. In the case before us, we are not concerned with a trust but of vesting of legacies by a will by the late owner. We have seen that the concept of 'ownership' under the West Bengal Premises Tenancy Act, as laid down in Yogamaya pakhira's case (ILR (1968) 2 Cal 70) is the full or absolute ownership of the property. Such right is not possessed of even by a permanent lessee or as it appears by any tenant who may construct structures on a leased land under terms of lease without however having any permanent or absolute right to their continued existence at the same time being subject to eviction by his lessor on specified grounds.

20. We have noticed the incidents of Fownership as indicated above, but it seems that the simultaneous existence of all such incidents is not imperative to constitute the ownership of a property. The unfettered rights in rem to possess the property exclusively and freely on his own behalf without any set point of time to manage, use and enjoy the property and the income thereof for his benefit, without any scope for interference from holder of any title paramount, or any claimant having a vested interest or any other person are material rights which will also constitute his ownership of the property during the lifetime of the person possessing such rights representing the estate completely. The absence of the right of alienation of the property or the existence of such right being dependent on the happening of an involuntary event will not detract his ownership of the property conferred on him under the will. The fact that the interest is neither perpetual nor residuary will not undermine his ownership when the person owning the property in life interest akin to the Hindu Widow's estate, has also the other rights in the property for his benefit and use absolutely against all persons without any restriction or interference from any quarter including the legatees owning the vested remainder whose right would arise and be effective only on the death of the holder of the life interest. Such concept is not inconsistent with the concept of ownership in our law which as we have seen, can be fragmented with reference to time, provided such owner during his lifetime has the absolute right of possession and enjoyment of the property on his own behalf and benefit against all the world. There is no statutory prohibition against such concept of ownership which again does not appear to be opposed to normal or usual sense of ownnership or plain grammati-cal or literal construction or to the golden rule of intention emphasised in Yogamaya's case.

21. In this case, under the terms of the will Taramoyee was given a life interest in the suit premises without any right of alienation and on her death the legacy was to vest in her sons absolutely. We have seen that her ownership limited till her death entitled her to sue as owner of the premises as contemplated in law. Further the reasonable requirement pleaded in the plaint and established in evidence is also in respect of the sons of the plaintiff who are also the ultimate legatees under the will with absolute right of ownership. In the context of the accepted legal position that the requirement of the landlord includes the requirement of his family members, who again here are owners of the legacy, being the property whereof the suit premises form a part, in vested interest, there is no escape from the decree when the conditions under Clause (ff) of Section 13 (1) of the Act have been satisfied.

22. The appeal accordingly fails and is dismissed, without any order for costs in the circumstances.

Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //