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1968 Supreme(Cal) 226
HIGH COURT OF CALCUTTA
Ramendra Mohan Datta
DEBI SANKAR BHATTACHARJEE - Appellant
Versus
IRENE DAVID - Respondent
. Of .
Decided On : November 22, 1968
In the case of an Anglo-Indian deceased dying intestate, the tenancy right would not vest on the heir-at-law immediately upon the death of the deceased but only upon the grant of Letters of Administration.
Headnote:
INDIAN SUCCESSION ACT - TENANCY RIGHT - VESTING OF PROPERTY - LETTERS OF ADMINISTRATION - TRESPASSER - MESNE PROFITS - [SECTION 211, 212, 216, 220, 221, 269] - In the case of an Anglo-Indian deceased dying intestate, the tenancy right would not vest on the heir-at-law immediately upon the death of the deceased but only upon the grant of Letters of Administration. Until such grant, the heir cannot enjoy any legal right over the tenancy right and remains a trespasser liable to be ejected. Mesne profits can be claimed from the date of the death of the deceased until recovery of possession.
Fact of the Case:
The plaintiff, the owner of the premises, filed a suit against the defendant, the grand-daughter of the deceased tenant, for recovery of possession of the tenanted portion and mesne profits. The deceased tenant, an Anglo-Indian, died intestate in England. The defendant claimed to have inherited the tenancy right as one of the heirs of the deceased and contended that no Letters of Administration were necessary. The plaintiff argued that the defendant was a trespasser as she had not obtained Letters of Administration.
Finding of the Court:
The court held that the tenancy right was a property that vested in the administrator upon the grant of Letters of Administration and not in the heir-at-law immediately upon the death of the deceased. The defendant, as an heir, could not establish her right to the tenancy right without obtaining Letters of Administration. The court further held that the defendant was a trespasser and liable to be ejected. The court also awarded mesne profits to the plaintiff from the date of the death of the deceased until recovery of possession.
Issues: 1. Whether the defendant was the successor-in-interest and heir of the deceased under the Indian Succession Act and its effect. 2. Whether the defendant was in illegal and wrongful possession of the suit premises. 3. Whether the defendant was a trespasser and continuing in wrongful occupation of the suit premises. 4. Whether the plaintiff was entitled to damages or mesne profits. 5. What relief, if any, was the plaintiff entitled to?
Ratio Decidendi: The court relied on Sections 211, 212, 216, 220, 221, and 269 of the Indian Succession Act, 1925, to arrive at its decision. The court held that the tenancy right was a property that vested in the administrator upon the grant of Letters of Administration and not in the heir-at-law immediately upon the death of the deceased. The court further held that the defendant, as an heir, could not establish her right to the tenancy right without obtaining Letters of Administration. The court also held that the defendant was a trespasser and liable to be ejected.
Final Decision: The court decreed in favor of the plaintiff for recovery of possession of the tenanted portion and mesne profits at the rate of Rs. 43 per month from the date of the death of the deceased until recovery of possession.
( 1 ) THE plaintiff is the owner of the premises No. 9, Khetradas Lane, Calcutta. One Mrs. M. V. D'cruz was the monthly tenant under the plaintiff according to English Calendar at a rent of Rs. 43 per month in respect of two bed-rooms with a bath and privy combined, a kitchen, a covered verandah and a projected verandah on the second floor (north-west side) of the said premises. The said Mrs. M. V. D'cruz, who was an Anglo-Indian, died intestate in England on or about June 14, 1965. Prior to her departure for England she gave power in favour of the defendant's husband, inter alia, in respect of the said tenancy.
( 2 ) THE plaintiff's case is that on her death the power granted by her also came to an end. The plaintiff does not dispute that the defendant is one of the heirs of the deceased being her pre-deceased daughter's daughter under Section 40 of the Indian Succession Act, 1925, but contends that in spite thereto the tenancy right of the deceased could not vest in her nor could she inherit the same without a grant of the letters of administration being made in her favour by the competent Court in respect of such tenancy right.
( 3 ) THE defence is that she was all along occupying the suit premises as the grand-daughter of the said Mrs. M. V. D'cruz and upon the death of the said Mrs. M. V. D'cruz her tenancy right had devolved on to her as one of the heirs of the deceased. She further contends that the other remaining heirs are in England and they have signified their consent in favour of the defendant as regards the tenancy right of the deceased, and on that basis the defendant claims to be the only heir entitled to inherit the said tenancy right. The defendant applied for a certificate from the Administrator-General, inter alia, in respect of the said tenancy under the Administrator-General Act (XLV of 1963) to prove that she was one of the heirs of the deceased, but the Administrator-General could not grant such a certificate in respect of the tenancy right under the said Act although for the purpose of realizing a small sum of Rs. 10 from the Calcutta Electric Supply Corporation, such a certificate was granted under Section 29 of the Act.
( 4 ) THE following issues were settled at the trial: (1) Is the defendant the successor-in-interest and heir of the deceased under the Indian Succession Act? If so,
to what effect? (2) Is the defendant in illegal and wrongful possession of the suit premises as alleged in para 4 of the plaint? (3) Is the defendant a trespasser and is she continuing in wrongful occupation of the suit premises as alleged in para 5 of the plaint? (4) Is the plaintiff entitled to damages or mesne profits as alleged in para 6 of the plaint? (5) To what relief, if any, is the plaintiff entitled?
( 5 ) THE facts being more or less admitted by and on behalf of both the parties neither party chose to call any witness. The brief of documents has by consent been tendered and marked as ex. A herein.
( 6 ) THE plaintiff contends that the said grant of certificate by the Administrator-General was not enough for the defendant to entitle her to continue in possession of the said premises and her occupation had become unlawful and she was no better than a trespasser. Accordingly this suit was filed against the defendant for recovery of possession of the said premises and for mesne profits.
( 7 ) ON behalf of the defendant it has been contended that the tenancy being heritable, upon the death of the said Mrs. M. V. D'cruz, has devolved on to the defendant as the heir of the deceased. Hence there could be no question of applying for further grant of Letters of Administration. It is further contended on behalf of the defendant that the suit as framed is not maintainable because the plaintiff has sued the defendant as trespasser although admittedly the defendant is one of the heirs. Hence the tenancy has vested in the defendant by way of inheritance upon the death of the grand-mother. In any
