Back
2004 Supreme(Cal) 54
High Court Of Calcutta
Arun Kumar Mitra
KARTICK DAS - Appellant
Versus
KAMAL GHOSH - Respondent
S. M. A. 2 Of 1999
Decided On : 01/29/2004
Goutam Lahiri, JYOTIRMOY BHATTACHARYA, P.S.BASU, SUBIR RANJAN GHOSH
A testamentary disposition of a tenancy right is not a valid transfer and does not confer any tenancy right on the transferee.
Headnote:
WEST BENGAL PREMISES TENANCY ACT, 1956 - TENANT - TRANSFER OF TENANCY - WILL - LEGACY - VALIDITY - SECTION 2(H), 13(1)(A), 14 - HINDU SUCCESSION ACT, 1956 - SECTION 29, 30 - TRANSFER OF PROPERTY ACT, 1882 - SECTION 5 - CODE OF CIVIL PROCEDURE, 1908 - ORDER 22 RULE 4, 21 RULE 98, 99, 100, 101 - Held, the transfer of tenancy right by a tenant through a testamentary disposition is not a valid transfer and does not confer any tenancy right on the transferee.
Fact of the Case:
The appellant, Kartick Das, claimed to be the legal representative of the deceased tenant, Lakshmi Rani Dutta, and sought to be substituted in her place in a suit for eviction filed by the respondents, the owners of the premises. The appellant based his claim on a Will executed by Lakshmi Rani Dutta in his favor. The appellant also filed an application for stay of the execution of the eviction decree passed against Lakshmi Rani Dutta. The trial court rejected the appellant's application for substitution and dismissed his application for stay. The appellant challenged these orders in the lower appellate court, which also dismissed his appeal. The appellant then filed a second miscellaneous appeal before the High Court.
Finding of the Court:
The High Court held that the appellant was not a tenant within the meaning of the West Bengal Premises Tenancy Act, 1956, as he was not an heir of the deceased tenant who was ordinarily residing with her at the time of her death. The Court further held that the appellant could not claim any tenancy rights under the Will executed by Lakshmi Rani Dutta, as the transfer of tenancy right by a tenant through a testamentary disposition is not a valid transfer.
Issues: 1. Whether the appellant was a tenant within the meaning of the West Bengal Premises Tenancy Act, 1956? 2. Whether the appellant could claim any tenancy rights under the Will executed by Lakshmi Rani Dutta?
Ratio Decidendi: 1. The definition of 'tenant' in section 2(h) of the West Bengal Premises Tenancy Act, 1956 includes any person continuing in possession after the termination of his tenancy or in the event of such person's death, such of his heirs as were ordinarily residing with him at the time of his death. 2. A testamentary disposition of a tenancy right is not a valid transfer and does not confer any tenancy right on the transferee.
Final Decision: The appeal was dismissed and the judgments of both the Courts below were affirmed.
( 1 ) THIS Miscellaneous Appeal has been preferred challenging the judgment and order dated 19. 1. 1998 passed by the learned 10th Assistant District Judge, Alipur in Miscellaneous Appeal No. 276 of 1997 affirming the order dated 27. 5. 1997 passed by the learned Munsif, 2nd Court at Alipur in Miscellaneous Case No. 50 of 1996.
( 2 ) THE background of the case may be summarised in the manner as follows: the respondent Nos. 1 and 2 Sri Kamal Ghosh and Sri Amal Ghosh are the owners in respect of premises No. 208a, Rash Behari Avenue, Calcutta-29. Once Sri A. K. Dutta was the monthly tenant in respect of South Eastern Flat of the second floor of the said premises at a rental of Rs. 550. 00 payable according to English Calendar month. The rent was being paid in two shares that is Rs. 275/- each to the respondent Nos. 1 and 2 (Sri Kamal Ghosh and Sri Amal Ghosh ). It appears from the records that on July 1988 the respondent Nos. 1 and 2 filed Title Suit No. 338/88 in the Court of learned 2nd Munsif at Alipur against one Lakshmi Rani Dutta. Originally A. K. Dutta was the tenant and Lakshmi Rani Dutta was his wife. The original tenant A. K. Dutta died and Lakshmi Rani Dutta became the tenant therein. Now as stated this suit for eviction and for mesne profits as well as for recovery of possession was filed by the owners against Lakshmi Rani Dutta who was made defendant. In September 1988 said Lakshmi Rani Dutta entered appearance in the suit and filed applications under section 17 (2) and section 17 (2) (a) (b) of the West Bengal Premises Tenancy Act. She did not however file any Written Statement. On 22. 5. 1989 another Title Suit was filed by the owners being T. S. No. 36/1987 against Lakshmi Rani Dutta praying for permanent injunction against her from assigning, prevailing and/or pertaining with possession of the tenanted flat. The said suit was decreed on 30. 10. 1989. Smt. Lakshmi Rani Dutta, the defendant in the suit died without leaving any heir or legal representative.
( 3 ) THEREAFTER, on 20. 12. 1989 Sri Kartick Das, the appellant herein filed two applications in the suit being T. S. No. 338/88 (which is the title suit and the proceeding arising thereof concerned in this second appeal), one under Order XXII Rule 5 and another under Order XXII, Rule 4a of the Code of Civil Procedure for the determination of the appellant as the legal representative of the said deceased for substitution in the suit and for appointment of Administrator General for the purpose of the said suit till disposal of the application under Order XXII, Rule 5 of the Code of Civil Procedure. On 29. 1. 1990 the learned Munsif by an order kept the petition under Order XXII, Rule 5 of the Code of Civil Procedure in abeyance on the ground that a probate case is pending. The learned Munsif, however, allowed the other petition under Order XXII, Rule 4a of the Code of Civil Procedure and appointed the Administrator General to represent the suit on behalf of the deceased defendant On 2. 3. 1990 the appellant herein was directed by the learned Munsif to deposit Rs. 25,000/- as cash security in the office of the Administrator General against arrear rent. Being aggrieved by the said order dated 2. 3. 1990 directing the appellant to deposit the amount, the appellant filed a revisional application before the learned District Judge at Alipur. The said revisional application was rejected by the 3rd Court of Additional District Judge, Alipur. Challenging the order dated 17. 12. 1990 passed the learned Additional District Judge rejecting the revisional application filed by the appellant herein, an application under Article 227 was moved before this High Court and by an order dated 5. 2. 1991 one of the learned single Judges of this High Court rejected the said application. Ultimately, on 20. 4. 1993 the appellant deposited the sum of Rs. 25,000/- in the trial Court.
( 4 ) THEREAFTER, on 14. 5. 1993 the learned Munsif rejected the application of the app
