Back
1975 Supreme(Cal) 111
High Court Of Calcutta
K.J.Sengupta & Sharma, JJ.
Satyabrata Banerjee
Vs.
Ushaprobha Sarkar
Latters Patent Appeal no. 71 of 1973
Decided On : Apr 29, 1975
Advocate Appeared:
Lala Hemanta Kumar, Munwar Ali, Nirmal Kumar Manna, Samir Kumar Mukherjee, Somnath Chatterji
A transfer of tenancy by will falls within the ambit of section 13 (1) (a) of the West Bengal Premises Tenancy Act, which prohibits tenants from transferring, assigning, or sub-letting the tenancy without the landlord's consent.
Headnote:
WEST BENGAL PREMISES TENANCY ACT - SECTION 13 (1) (A) - TRANSFER OF TENANCY BY WILL - VALIDITY - NOTICE OF EVICTION - SERVICE ON EXECUTORS - SUFFICIENCY.
Fact of the Case:
Dr. Panchanan Chatterjee, a monthly tenant, executed a will appointing the appellants and one Samir Mukherjee as executors. After his death, the landlords brought an ejectment suit against the heirs and executors, alleging that the tenancy was transferred without their consent, in violation of section 13 (1) (a) of the West Bengal Premises Tenancy Act.
Finding of the Court:
The trial court and the first appellate court held that the will executed by Dr. Chatterjee constituted a transfer or assignment as contemplated under section 13 (1) (a) of the Act and decreed the suit for eviction. The appellants challenged this decision, arguing that the transfer by will did not fall within the mischief of the provision and that the notice of eviction was served before the grant of probate, rendering it invalid.
Issues: 1. Whether the transfer of tenancy by will comes within the ambit of section 13 (1) (a) of the West Bengal Premises Tenancy Act? 2. Whether the service of notice of eviction on the executors, prior to the grant of probate, was valid and sufficient?
Ratio Decidendi: 1. The court held that the term 'transfer' in section 13 (1) (a) of the Act should be interpreted broadly and includes a transfer by will. The purpose of the provision is to restrain tenants from making profit or causing trouble to landlords by transferring, assigning, or sub-letting the tenancy without consent. A testamentary disposition of the tenancy by will would frustrate this purpose, as it would allow tenants to do indirectly what they are prohibited from doing directly. 2. The court held that the service of notice of eviction on one of the executors was sufficient, as in the case of joint tenancy, service on one co-tenant is sufficient. The fact that probate had not been granted at the time of service did not invalidate the notice, as the landlords had served notice on both the legal heirs and the executors, which was the correct course of action.
Final Decision: The appeal was dismissed, upholding the judgment and decree of the first appellate court. The court found that the transfer of tenancy by will constituted a transfer or assignment under section 13 (1) (a) of the Act and that the service of notice of eviction on the executors was valid and sufficient.
1. THIS appeal under the Letters Patent has been preferred by the defendants 1 and 2 against a decree for ejectment passed against them as also against other defendant-respondents 5 to 10 by Sri S. K. Sen, learned judge, 9th Bench, City Civil Court at calcutta in ejectment suit No. 2269 of 1963 affirmed by Mr. Justice A. K. Sinha in First Appeal No. 197 of 1967.
2. THE brief fact out of which this appeal arises may be stated like this:.-Premises No. 32/13a, Beadon Street was held by Dr. Panchanan Chatterjee as a monthly tenant at a rental of rs. 250/- under the landlord respondents 1 to 4. Dr. Chatterjee died on the 23rd of May, 1963 leaving respondent nos. 5 to 9, his daughters, his only heirs; during his life time he executed a will appointing the appellants and one Samir Mukherjee respondent No. 10 as the executors to that will. The plaintiffs brought the ejectment suit No. 2269 of 1963 in the City civil Court at Calcutta for ejecting the heirs And the executors to the will of dr. Panchanan Chatterjee, mainly on the grounds that they were defaulters; that the premises in question was used for the purpose other than the purpose for which the said tenancy was taken; but the main ground on which the eviction of the tenant defendants is prayed for is that Dr. Panchanan Chatterjee transferred the said tenancy without the consent in writing of the landlords. Prior to the institution of the suit a notice of ejectment and of a threat to sue was served upon the executors to the will and also upon the daughters of Dr. Panchanan Chatterjee, the original tenant. The trial court negatived the first two contentions that the tenants were the defaulters and that the said tenancy was used for the purpose other than the purpose for which it was taken settlement of but held that the said tenancy was transferred to one Dr. Baren Chatterjee, nephew of dr. Panchanan Chatterjee by means of a will which, according to the learned Judge, was a transfer as contemplated under section 13 (1) (a) of the west Bengal Premises Tenancy Act (hereinafter referred to as the Act. The trial court on that basis decreed the suit. The executors to the will of dr. Panchanan Chatterjee preferred the first appeal in this court which was heard by Sinha, J. The judgment and decree of the trial court was upheld by mr. Justice Sinha. Against the said decision this appeal under the provisions of letters patent has been preferred.
3. THE contention of the appellants was that they were never defaulters and that they did not use the premises in question for business purpose. Their main contention was that the will which was executed by Dr. Panchanan Chatterjee could not constitute a transfer or assignment as contemplated Under section 13 (1) (a) of the Act. They also disputed the legality of the service and sufficiency of the notice Which were alleged to have been served upon the appellants and the daughters of dr. Chatterjee. The daughters also entered appearance and supported the contention of the executors to the will of Dr. Chatterjee.
4. THE trial court as well as the first appellant court were of the views that the notice, served upon the executors and the daughters of Dr. Chatterjee was legal and sufficient and that the will executed by Dr. Chatterjee, in fact constituted a transfer or assignment as contemplated under section 13 (1) (a)of the Act. On the said finding the trial court decreed the suit and directed eviction of the appellants and the daughters from the premises in question. The said finding has been upheld in the first appellate court by Sinha, J. But the same has been challenged in this appeal
Two points have been raised in this appeal by Mr. Chatterjee while challenging the decision in question. Firstly it has been contended that the finding of Sinha, J. that Dr. Chatterjee by his will transferred the tenancy in question in favour of his nephew Dr. Biren Chatterjee and as such, the tenant cannot get any protection as provided in section 13 (1) (a)
