Sunila Sundari Dasi vs Sailendra Nath Dey

P.N. Mookerjee, J.—This appeal is by the Plaintiffs and it arises out of a suit for ejectment.

The suit has been dismissed by the learned trial Judge upon the finding that the old tenancy of the Defendant''s father, which, ultimately, on the latter''s death, devolved upon the Defendant and his mother and brothers, including two minors and sisters, was still subsisting; and had not been terminated and, accordingly, the Plaintiffs were not entitled to khas possession and so not entitled to a decree for eviction in the instant suit.

The following facts are not in dispute:

That the Plaintiffs are the owners of the disputed premises; that, under the Plaintiffs, Haricharan De, father of the Defendant, was a tenant of the disputed premises. That Haricharan died and, upon his death, his above tenancy devolved upon his sons, including the present Defendant, of whom two were minors, at least, at the date of the suit, and daughters and widow. The Defendant, however, appears to have taken out a tenancy in his own name and/or had been paying rents on account of that tenancy to the Plaintiffs in his (Defendant''s) name, although the Defendant, along with some, at least, of the above heirs of Haricharan, were actually occupying the disputed premises.

There can be no question that the Defendant''s above new tenancy, if any, has been terminated by a proper notice, both u/s 106 of the Transfer of Property Act and Section 13(6) of the West Bengal Premises Tenancy Act, 1956, and the present suit, if it has to be considered only on the footing of the Defendant''s said tenancy, would be likely to succeed. The objection, however, which was taken up by the Defendant in his written statement was that the old tenancy of his deceased father, which devolved, as stated hereinbefore, upon himself and his brothers, including two minors, and sisters and mother had not been terminated and, accordingly, the Plaintiffs had acquired no right to khas possession of the disputed premises and could not maintain the present suit for eviction or get a decree even against the present Defendant.

This objection appears to have succeeded before the learned trial Judge and, in our opinion, the decision of the learned trial Judge on the point is correct.

As we have said above, there is no doubt that, on the materials before the Court, the Defendant Sailendra''s new tenancy, if any, exclusively in his favour, has been duly terminated but, even then, so long as Haricharan''s tenancy, which subsists in his heirs, mentioned hereinbefore, is not determined, the Plaintiffs would not be entitled to a decree for khas possession.

Mr. Lala contended on the authority of the Supreme Court decision, reported in Kanji Manji Vs. The Trustees of The Port of Bombay, , that even though a notice of ejectment in the instant case was addressed to Sailendra alone and was served on him alone and the suit was brought also only against him, the Plaintiffs would be entitled to a decree for ejectment in respect also of the old tenancy of Haricharan, of which, admittedly, Sailendra was one of the joint tenants.

We do not think that the decision cited supports the extreme contention, raised by Mr. Lala. In the first place, the tenancy, sought to be terminated by the notice of ejectment, given in the instant case, referred and referred exclusively to the new tenancy of Sailendra. It cannot, by any means whatsoever, be made to relate to the old tenancy of Haricharan. In the second place, although service of notice on one of the joint tenants may be sufficient for the purpose of terminating a joint tenancy, the notice must be addressed to all the joint tenants. If authority is needed for this proportion, reference may be made to Makshud Mandal v. Khadu Mandal 33 C.W.N. 742, explaining the earlier decision of this Court in Bejoy Chand Mahatab v. Kali Prasanna Seal 29 C.W.N. 620, both purporting to rely on Harihar Banerjee''s case 45 I.A. 222. We do not think that the Supreme Court, in their decision, cited above, intended to lay down any contrary proposition. We do not also think that, fairly read, the said decision can be said to support the view that, in all cases of joint tenancies, a suit against any of the joint tenants would be enough to entitle the landlord to a decree for eviction. The least that can be said from this point of view as regards the aforesaid decision is to point out that the statements of facts there are, at any rate, insufficient to support any such extreme contention. Apart from all considerations, there can be no doubt that, in the instant case, the notice of ejectment did not relate at all to the old tenancy of Haricharan nor was it addressed to all the joint tenants and, upon that simple ground, the present suit must fail as the said tenancy cannot be said to have been validly terminated. We have already pointed out that the new tenancy of Sailendra, if any, has been duly determined but, in spite of that, the Plaintiffs'' instant suit must fail on the ground that the old tenancy of Haricharan, which devolved on his heirs, including Sailendra, is still subsisting.

A point was sought to be made by Mr. Lala that the conduct of the parties would show, on the evidence of Sailendra himself, that Haricharan''s heirs accepted the new arrangement, culminating in the new tenancy in favour of Sailendra. This argument, however, in the facts of this case, must be rejected as two of Haricharan''s heirs were, at the relevant time, minor and, therefore, no question of any acquiescence, waiver or estoppel can arise, so far as they are concerned, and obviously, except upon those grounds, Sailendra''s above new tenancy would not bind the said two heirs of Haricharan.

In the premises, subject to the above observations, this appeal fails and it is dismissed.

There will be no order for costs, either in this Court or in the Court below.

D. Basu, J.

I agree.