A person who is one of the heirs of the original tenant and was ordinarily residing with him at the time of his death is a necessary and proper party to an eviction suit.

1. The challenge is made to an order no. 126 dated 22nd April, 2016 passed by the learned Civil Judge (Junior Division), 4th Court, Sealdah in Title Suit No. 238 of 1990, by which an application for addition of party is rejected.

2. At the very outset this Court must record that the suit for eviction against the tenant has been unreasonably delayed and is pending since more than two decades.

3. Since the point urged before this Court assumes importance, this Court feels that it would be proper to deal with the same without being swayed by the number of years of pendency of the said suit.

4. Admittedly the suit for eviction was filed against the tenant, inter alia, on the ground of default, subletting and reasonable requirement. The original defendant was contesting the said suit. In course of the suit he died. An application for substitution was taken out by the plaintiff/opposite party impleading the widow and the son as heirs, who were ordinarily residing with the tenant at the time of his death.

5. It is also not in dispute that the widow subsequently died so the son and the heirs of the said son have been substituted in the suit. It is also a fact that the heirs of the deceased son are not contesting the said suit and the suit has been posted at the ex parte board.

6. The petitioner took out an application for her addition as defendant in the said suit on the premise that she, being one of the legal representatives and heirs of the original defendant, is a necessary and property party. It is further stated that though she was given in marriage but was residing with her parent and after his death is looking after his business with the help and assistance of a manager.

7. The Trial Court proceeded to dismiss the said application relying on a decision of the Supreme Court rendered in case of Shkuntala Vasant Pahadi & Ors. vs. Purushottam Vasant Pethe & Ors. reported in (2007) 3 SCC 123 wherein it is held that if the estate of the tenant is sufficiently represented, mere absence of one or two heirs would not invalidate the decree for eviction.

8. The doctrine of representation was applied by the Supreme Court in the said decision.

9. Before the points agitated by the respective parties are taken up, it is necessary to recapitulate the relevant section of the West Bengal Premises Tenancy Act, 1956.

10. Section 2 (h) of the said Act defines “tenant” as a person by whom or on whose account or by way of rent of any premises is or but for a special contract would be payable and 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.

11. The definition of “tenant” is composite one and imbibe within itself two eventualities; firstly when a person dies before termination of his tenancy, meaning thereby on the death of a contractual tenant the heirs and legal representatives, who succeeded to the estate left by him; secondly on the death of a person, whose tenancy has been determined such of his heirs, who were ordinarily residing at the time of his death.

12. It leaves no ambiguity to say that tenancy is a heritable estate and passes on to the heirs and legal representatives on death. The special feature, which can be seen from the definition of “tenant” is that all the heirs and legal representatives may not be joined in a suit for eviction, if such death occurs after termination of a tenancy. The special qualification required in such eventuality is that such heir, who was ordinarily residing at the time of his death, is required to be substituted, as he satisfies the definition clause.

13. There has been a divergent of opinion on a question whether a decree for eviction shall be rendered invalid or ineffective having passed against some of the heirs without impleading the others, if the contractual tenant dies before the termination of tenancy.

14. This Court feels that such point need not