JUDGMENT
B. Bhattacharya, J.
1. This second appeal is at the instance of substituted defendant No. 3 in a suit for eviction and is directed against judgment and decree dated March 13. 1992 passed by the learned Additional District Judge, 4th Court. Midnapore in Other Appeal No. 32 of 1991 thereby setting aside these dated January 28, 1992 passed by the learned Munsif, 1st Court Midnapore in Other Suit No. 3 of 1983.
2. The respondent No. 1 brought against one Saraswati Dasi, since deceased, the predecessor-in-interest of the present appellant in the 1st Court of learned Munsif, Midnapore a suit for eviction being other Suit No. 3 of 1983 on different grounds mentioned in section 13(1) of the West Bengal Premises Tenancy Act (“Act”) including the ground of creating illegal sub-tenancy in favour of the present appellant and one Harekrlshna Prodhan. During the pendency of the suit, the original tenant having died, the present petitioner and the respondent Nos. 2 and 3 were substituted in her place.
3. The said suit was Initially contested by late Saraswati Dasi, the original defendant, thereby disputing the allegation made in the plaint As regards the ground of subletting, the specific defence of the original tenant was that the present appellant is the widow of her brother and she is also childless widow like the original defendant. The present appellant, according to the original defendant, had been residing with her for last 35 years and was assisting the defendant in her dally work. The appellant, was thus a dependent and a family member of the original defendant. Therefore, the appellant could not be described as a subtenant. Harekrishna Prodhan is the brother of the present appellant and was a resident of Egra P.S. He being a brother of the present appellant, at times used to come to her but it was totally false that she was occupying a room as sub lessee.
4. At the time of hearing of the suit, four witnesses were examined on behalf of the plaintiff and two on behalf of the defendant opposing the prayer of the plaintiff.
5. The learned trial Judge on consideration of the materials on record held that the plaintiff could not prove any of the grounds taken in the plaint for eviction of the tenant.
6. Being dissatisfied, the respondent No. 1 preferred an appeal before the learned first appellate Court below and by the Judgment and decree impugned herein the said Court has set aside those passed by the learned trial Judge and has decreed the suit only on the ground of subletting in favour of the present appellant.
7. Being dissatisfied, the defendant No. 3 has come up with the instant second appeal.
8. It appears from the Judgment passed by the learned Court of appeal below that the said Court disbelieved the case of the appellant that she was one of the heirs of the original tenant simply on the ground that in the absence of any succession certificate there was no reason to hold that the appellant was one of the legal heirs of the original defendant. Thus, the learned first appellate Court below concluded that the original tenant sublet the property infavour of the present appellant.
9. At the time of hearing of the Instant second appeal under Order 41 Rule 11 of the Code of Civil Procedure, the Division Bench admitting this appeal did not formulate any specific substantial questions of law as required under section 100 of the Code of Civil Procedure. However, after hearing Mr. Ghosal appearing on behalf of the appellant and Mr. Basu appearing on behalf of the respondent No. 1 /landlord 1 have formulated the following questons of law for determination in this appeal :–
(a) If a future heir of a tenant lives with such a tenant in the property in question, whether occupation of such a person can be branded as that of a sub-tenant?
(b) Whether for the purpose of establishing that a particular person is an heir of the tenant, production of succession certificate is necessary?
10. There is no dispute that original tenant viz. Saraswati Dasi was a childless widow. The tenancy having been originally taken in her name, according to Hindu Succession Act, 1956, on the death of Saraswati the tenancy right will devolve firstly upon heirs of husband of Saraswati: in their absence upon the parents of Saraswati and in their absence, upon the heirs of father of Saraswati. In the instant case Saraswati died at the age of 100 years and on her death the plaintiff himself substituted the appellant being his brother’s widow and other two sons of deceased brother of Saraswati. There is no material on record to show that there is any heir on the side of husband of the deceased tenant or that the parents of Saraswati were alive. Therefore, the widow of the brother and two sons of another brother who were substituted by the plaintiff are the legal heirs of the deceased tenant There is no dispute that the appellant, one of the heirs was residing with Saraswati in the suit property at the time of death during the pendency of the suit. Therefore, there cannot be any dispute that Dayamoyee, the appellant herein is one of the heirs of the deceased tenant and herself a tenant within the definition of tenant appearing in section 2 of the Act so long a decree for eviction is not passed.
11. The learned Court of appeal below erred in law in holding that the appellant had failed to prove that she is an heir as no succession certificate could be produced in support of her claim as an heir such reasoning given by the learned first appellate Court below is a ludicrous one. A succession certificate merely empowers the person to whom such certificate is granted to receive interest or dividends on, or to negotitate or transfer or both to receive interest or dividends on and negotiate or transfer the securities or any of them specifed in such certificate. The grant of a certificate does not establish the title of the grantee as the heir of the deceased but only furnishes him with an authority to collect the debts and allows the debtor to make payment to him without incurring any risk.
12. Thus, the finding recorded by the learned first appellate Court below that the appellant could not prove that she was one of the legal heirs of the deceased tenant should be set aside.
13. The next question that arises for determination is whether the transfer of licence of the business In favour of one of the heirs amounts to sub-letting.
14. There is no dispute that Saraswati was about 100 years of age at the time of death and 5 to 6 years prior to her death she permitted the present appellant who was helping her In the business for a long time to take licence of the business in her favour. There is also no dispute that both the Courts below have found that the original tenant took the tenancy not only for the residential purpose but also for carrying on business in the property. In such a case, if due to old age such a tenant decides to surrender licence of the business in favour of one of the heirs, who was all along helping her in the business, such act on the part of the tenant cannot be said to be an act of sub-letting. The deceased tenant was very much staying in the property and as she was unable to run the business due to her old age, one of her future heirs was running the business. Under such circumstances, the learned Court of appeal below acted Illegally and with material irregularity in holding that the act of the original tenant amonted to sub-letting. Such finding therefore should not be allowed to stand and is thus set aside.
15. Mr. Basu, the learned counsel appearing on behalf of the respondent No. 1 has however contended that his client also made allegation that the deceased tenant sublet a portion of the properly to one Harekrishna Prodhan for the purpose of running a business of “Muri”. Mr. Basu submits that the learned trial Court did not grant decree on that ground because his client’s son admitted that at the time of deposition Harekrishna Prodhan had already left. Mr. Basu submits that even if a sub-tenant leaves during the pendency of suit, a tenant cannot evade the rigour of subletting if in the past he had really sublet the property. Mr. Basu further contends that the learned first appellate Court below did not consider this aspect of the matter and as such the matter should be remanded back to the learned first appellate Court below for considering whether subtenancy infavour of Harekrishna has been proved.
16. Mr. Ghosal, the learned senior counsel appearing on behalf of the appellant submitted that although a ground was taken in the Memorandum of Appeal before the learned first appellate Court below, at the time of hearing of such appeal such point was not specifically pressed, as a result, the learned first appellate Court below did not go Into such question. Mr. Ghosal submits that a pure question of fact having been abandoned before the learned first appellate Court, the respondent should not be permitted to agitate the selfsame question before this Court.
17. 1 would have accepted such contention of Mr. Ghosal if the learned first appellate Court below specifically recorded that question of sub-leting In favour of Harekrishna Prodhan was not pressed before It. In such a case, unless an application was specifically made before the learned first appellate Court below pointing out that no such concession was made, this Court would not have accepted such point.
18. But the fact remains that inspite of taking specific ground in the memorandom of Appeal before the learned first appellate Court as regards the alleged subletting to Harekrlshna, the said Court did not discuss the said point and at the same time had not mentioned that such point was not pressed. Under such circumstances. In my opinion, the respondent No. 1 should be permitted to raise such point. Since, the suit was initiated in the year 1983, instead of remanding the matter back to the learned first appellate Court below I invited the learned advocates for the parties to argue on the aforesaid point on the basis of materials on record by exercising my power under section 103 of the Code of Civil Procedure.
19. After hearing the learned counsel for the parties and after going through the evidence on record I find that the appellant in her deposition specifically stated that Harekrlshna never stayed in the property as a tenant. No suggestion to the contrary was given in the cross examination to the appellant. Moreover, although the respondent No. 1 had produced document showing trade licence of the appellant for business carried on from the suit property but no trade licence could be produced showing that Harekrishna was at any point of time running any business. Moreover, Nirmal Das, one of the witnesses for the plaintiff himself admitted in his evidence that excepting Dayamoyee viz. the appellant, no one was living with Saraswati in the suit premises. In view of the aforesaid materials on record it is not possible to hold that the original tenant ever let out any room to Harekrishna Prodhan for the purpose of running a business as alleged. There is sufficient material to show that Harekrishna is the own brother of the present appellant and as such for the purpose of visiting sister he might have come to the said house at times. But the fact remains that subtenancy in favour of Harekrlshna for running a business of “Muri” as made out in the plaint has not been proved.
20. Therefore, I hold that the respondent No. 1 had failed to prove that the original tenant had ever Inducted Harekrishna as a sub-tenant for the purpose of running a business of “Muri” in any of the rooms of the suit
property.
Thus, the Judgment and decree passed by the learned first appellate Court below are set aside. The respondent No. 1 has failed to prove any of the grounds mentioned in the plaint and as such is not entitled to get a decree for eviction. The suit for eviction is thus dismissed.
The appeal is therefore allowed.
No costs.
21. Appeal allowed