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High Court Of Calcutta
ANIL KUMAR SEN, S. N. SANYAL
INDIAN OIL CORPORATION - Appellant
Versus
HIMANGSHU KUMAR GHOSH - Respondent
A. F. A. D. 574 Of 1981
Decided On : 08/17/1982
EVICTION SUIT - PREMISES TENANCY ACT - TRANSFER - TESTAMENTARY SUCCESSION - [SECTION 13 (1) (FF), 13 (3-A)] - Suit for eviction based on reasonable requirement by the landlord and the beneficiary - Interpretation of the term 'transfer' in Section 13 (3-A) - Whether testamentary succession constitutes transfer - Applicability of the bar under Section 13 (3-A) to a suit instituted within 3 years from the date of acquisition of property under a will - Held, that testamentary succession does not come within the mischief of Section 13 (3-A) and the suit is maintainable.
Fact of the Case:
Plaintiff, as the executor of his deceased mother's will, filed a suit for eviction against the defendant, an oil corporation, from the first floor and garage of the premises owned by the deceased. The plaintiff claimed that he and his youngest son, Sanjoy, required the premises for their own occupation as they had been living in the second and third floors as licensees of the other two sons, the legatees under the will, and were demanding possession of their respective floors. The defendant contested the suit, denying knowledge of the will and alleging that it was intended to prepare grounds for eviction. The trial court and the appellate court decreed the suit in favor of the plaintiff.
Finding of the Court:
The court held that the plaintiff, as the executor and a legatee along with his youngest son, Sanjoy, was entitled to institute the suit based on the requirement of both of them. The court further found that the plaintiff and Sanjoy had no other alternative accommodation of their own and that their existing accommodation as licensees was not a suitable alternative accommodation. The court also held that the term 'transfer' in Section 13 (3-A) of the West Bengal Premises Tenancy Act did not include testamentary succession and, therefore, the suit was not barred by the provision.
Issues: 1. Whether the plaintiff, as the executor of the will, had the right to institute the suit under Section 13 (1) (ff) of the West Bengal Premises Tenancy Act. 2. Whether the term 'transfer' in Section 13 (3-A) of the Act included testamentary succession.
Ratio Decidendi: 1. The court held that the plaintiff, as the executor under the will of the testatrix, was vested with the estate, including the suit premises, and was, therefore, the landlord. The court found that the plaintiff was entitled to claim a decree for eviction based on his own requirement and on the requirement of his youngest son, Sanjoy, who was a legatee under the will. 2. The court interpreted the term 'transfer' in Section 13 (3-A) of the Act to mean transfer inter vivos and not transfer by way of testamentary succession. The court considered the object and reasons for the incorporation of the provision, which was to protect tenants against misuse of certain grounds of eviction by transferee landlords. The court held that the term 'transfer' in the provision was intended to refer to transfers between existing landlords and transferee landlords who obtained the transfer to use their requirement for obtaining a decree of eviction.
Final Decision: The court dismissed the appeal and affirmed the concurrent decree for eviction passed by the two courts below. The court granted the defendant corporation one year to vacate the suit premises, subject to the payment of monthly mesne profits.
( 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 Cour
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