JUDGMENT
Jyotosh Banerjee, J.
1. These are two appeals from the appellate decree and these are directed against the judgment dated 22.9.2000 and the decree thereof passed by the Assistant District Judge, Sealdah in T. A. Nos. 4 and 23 both of 1997.
2. There were two suits, first being T. S. 670 of 1992 which was filed the respondent Yusuf Yacoob Kharwa against the appellant Mrs. Winifred Wilson Mongose for declaration and recovery of possession and mesne profits. The other suit being T. S.705 of 1993 was filed by the aforesaid appellant against the aforesaid respondent for declaration and injunction. In the earlier suit No. 670/92, the case of the plaintiff is that plaintiff is the mutwalli to the Wakf estate of Hanogs Yusoof Sakhjee Wakf-Al-Anlad comprising of premises No. 31A, Circus Avenue within P. S. Beniapukur commonly known as Taj Mansion. One Mrs. Bessie Evelyn Hutt, since deceased, mother of the defendant was originally a tenant in respect of flat No. 2 on the first floor, Western Block, Taj Mansion under the plaintiff at a monthly rental of Rs. 167.06. On 14.2.92, the original tenant Mrs. B. Hutt by a letter to the plaintiff informed, inter alia, that after marriage, the defendant and her husband were allowed by Mrs. Hutt to stay in the suit flat as a licensee. Subsequently, specially after the death of her husband, the defendant and her family members started misbehaving with her. In that background, Mrs. B. Hutt revoked her license and asked her daughter to vacate the suit premises but she did not. She also made a declaration that her tenancy would continue till her death and it would cease on her death and the plaintiff would be at liberty to take possession of the suit flat after her death. Mrs. Hutt, the tenant died on 23.9.92. After the death of Mrs. Hutt the plaintiff time and again requested the defendant to vacate the suit flat but she did not. On the other hand she sent a letter dated 13.11.92 to the plaintiff praying for mutation of her name as a tenant in respect of the suit flat. It was the case of the plaintiff that after the death of the admitted tenant Mrs. Hutt, the defendant had been occupying the suit flat as a trespasser. In that background, the plaintiff has been constrained to file the suit.
3. The defendant contested the suit by filing a written statement alleging, inter alia, that during her life-time her mother on 22.8.85 executed one Will in presence of two witnesses and bequeathed all her properties including the tenancy right in respect of the suit flat in favour of the defendant. The defendant denied that she was a mere licensee under her mother. She asserted that for the last 40 years she stayed with her mother looked after her and apart from the Will she acquired right to claim tenancy as an heir of the original tenant Mrs. B. Hutt. The defendant further alleged that the documents, namely, the letter of declaration dated 14.2.92 purportedly written by Mrs. B. Hutt were not genuine as at the relevant point of time her mother was totally confined to bed she could not even hold pen in her hand.
4. In other suit, namely, T.S. 705/93, the defendant of the former suit prayed for a declaration that she was the sole tenant, in respect of the suit flat by operation of law and the documents dated 14.2.92 purportedly executed by Mrs. Hutt were forged and fabricated. She also prayed for permanent injunction restraining the plaintiff from evicting her from the suit premises. The plaintiff of the former suit being the defendant in the second suit contested the same on a written statement on the self-same ground as disclosed in the plaint of the former suit. Upon such pleadings, the learned Trial Court raised number of issues in connection with the hearing of both the suits including issue No. 7 in T. S. 670/92 which runs as follows :
Issue No. 7– Was the original tenant in respect of the suit premises i.e., Mrs. B.C. Hutt surrender the tenancy by a letter dated 14.2.92?
In respect of the other suit being T.S. 705/93, the learned Trial Court raised Issue Nos. 3 and 4 which runs as follows :
Issue No. 3– Is the plaintiff a tenant in respect of the suit premises?
No. 4– Is the letter and declaration dated 14.2.92 forged and fabricated.
5. Learned Trial Court by its judgment came to a conclusion that the tenancy right could not be transferred by Will and the Court should not adjudicate the question whether the Will was a genuine or not as the executor of the Will had already filed a case for probate of the Will. Regarding the question whether the defendant acquired any right of tenancy by way of inheritance, the Trial Court held with the help of Exts. 1 and 1/1 that is to say the declaration and surrender letter that tenant intended to surrender her tenancy on her death and the defendant of the former suit hopelessly failed to prove that the signatures of her mother on Ext.1 series were forged and fabricated. On the other hand during cross-examination she admitted those signatures belonged to her mother. So the learned Trial Court came to a firm finding that the documents Ext. 1 series were genuine and since there was no proof that at the time of execution of those documents her mother was afflicted with any illness, so it could not be stated that there was no free execution of those documents. On such findings, the Trial Court held that the plaintiff in T.S. 670 was entitled to get a decree as prayed for but, T. S.705 should be dismissed and be ordered accordingly. The learned Appellate Court below found that in facts and circumstances of the case, the mother of the defendant was a sole tenant and defendant was never a joint tenant with her mother and further such Court did not find any merit of the case challenging the genuineness of the documents Ext. 1 series. With these findings, such Appellate Court affirmed the findings of the Trial Court and dismissed both the appeals.
6. At the time of admission of the present second appeals, the learned Division Bench admitting the appeals clearly noted that the second appeals would be heard on the ground Nos. VIII, XV and XVIII which are as follows :
Ground No. VIII–For that the learned Lower Appellate Court failed to appreciate that even if for the sake of argument it has to be accepted, while denying, that the appellant cannot exercise the tenancy right deriving from the father of the appellant, who was the original tenant, the appellant being the legal heir and representative both in the case of the father as well as the mother of the appellant can very well exercise that right deriving from the provision of Section 2(h) of the West Bengal Premises Tenancy Act.
No. XV– For that the learned Lower Appellate Court misdirected itself in holding that the appellant has lost her right to inherit the tenancy of her deceased mother since she did not claim joint tenancy right and the learned Lower Appellate Court also overlooked the provision of the law which does not say specifically that on the happening of such contingency i.e. the death of the original tenant, here, that being the father of the appellant the legal heirs, shall have to claim joint tenancy right.
No. XVIII– For that the learned Lower Appellate Court as well as learned Trial Court overlooked the acts and actions of the brother of the appellant and his deposition as P.W.2 in favour of the plaintiff of T. S. No. 670 of 1992 clearly proves the collusion and connivance between the P.W.2 and the landlord/plaintiff and for the same no separate proof is necessary documents or otherwise.
7. At the time of hearing of the appeal, the learned Counsel for the respondent submitted that the points formulated as substantial question of law at the time of admission, mostly are not questions of law. The learned Counsel for the appellant has also conceded the same and after hearing learned Counsel for the appellant, the points earlier formulated by the learned Division Bench at the time of admission have been recast by substituting the following points as the substantial questions of law involved in the appeals :
(I) Whether the document and letter marked Exts. 1 and 1/1 constitute a notice as contemplated under Section 31(1)(j) of the West Bengal Premises Tenancy Act.
(II) Whether on the basis of such documents and letter, the landlord/ plaintiff is entitled to get recovery of possession from the successor of admitted original tenant.
(III) Whether by virtue of the letter and document as above, the tenancy of the original tenant was extinguished on her death.
8. Before I proceed to consider the appeals, it is to be noted that two suits were tried analogously and disposed of by a common judgment. By the first suit, the landlord, or to speak it more specifically, the owner of the house, has prayed for recovery of possession of the suit premises that is to say a specific flat in the house after evicting the defendant. The defendant who is admittedly the successor of the admitted tenant has brought the other suit for a declaration of her tenancy right over the suit flat. The learned Counsel for the appellant has pointed that when the respondent/landlord brought the suit on the basis of a letter written by the admitted tenant, expressing her intention to relinquish the tenancy on her death, it should be presumed that such notice is given by the tenant under Section 13(1)(j) of the W.B.P.T. Act and the said notice must have two requirements :
i) A notice as required under the general law that is to say within the meaning of Section 106 of the T. P. Act.
ii) The language of such notice must go to show that the tenant at the time of vacating the tenancy must be alive.
The learned Counsel for the respondent on the other hand has submitted that the Ext. 1 is nothing but a declaration regarding the desire of the admitted tenant Mrs. B. Hutt that after her death the flat in her occupation should be returned to the landlord. It is contended that such declaration is not a notice nor surrender. It is further contended that Exts.1 and 1/1 is addressed to the landlord and the documents show that the writer is a lady aged about 80 years, who lost her sight. Last para of the document shows a declaration on the part of the writer that her tenancy would come to an end after her death and the landlord would be entitled to take possession. In reply thereof, it is contended by the learned Counsel for the appellant that in the instant appeal, the sole question on which the entire decision rests is whether the tenancy in favour of the admitted tenant was terminated/extinguished at the desire of the tenant on her death.
9. I have heard the respective contentions of the learned Counsel for both sides. I find that in the instant case, the real question is whether by the declaration and/or the notice signed by the admitted tenant Mrs. B. Hutt the tenancy could be extinguished on the death of the admitted tenant. Under the law that tenancy is heritable as contemplated under Section 2(h) of the W. B. P. T. Act. It is also not disputed that the admitted tenant Mrs. B. Hutt was a monthly tenant under the landlord who instituted the suit for eviction of her daughter, the defendant. As per the contention of the learned Advocate for the respondent/landlord-owner of the house the suit was instituted against the defendant who is a trespasser in respective of the property and the plaintiff has sought to recovery of possession from such trespasser. His argument is that the tenant is entitled to surrender his tenancy and through the letter and the declaration (Ext. 1 series), the admitted tenant expressed her clear intention to surrender the tenancy on her death. So, as per contention of the learned Counsel for the respondent, since the admitted tenant died, by virtue of such surrender or declaration, the landlord was entitled to get the vacant possession of the tenancy and the tenancy in question in favour of the admitted tenant came to an end. In support of such contention learned Counsel for the respondent has relied on the case of Juthika Mulick and Anr. v. Mahendra Yashwant Bal and Ors. . In that case, the predecessors of the respondents leased out a suit premises in favour of Lall Behari Mullick under a registered lease-deed dated 11.7.1966 on the basis of a monthly rent. The lease deed contained a covenant that the lease was for the lifetime of the lessee and his heirs, executors, administrators, representatives and assigns must yield up and deliver quiet, peaceful and vacant possession of the demised premises within three months of the death of the lessee unconditionally and without any objection whatever. They shall have no right to hold over the demised premises after the said period under any circumstances. The lessee died on 16-12-1970. His heirs did not deliver possession. In that background, the suit for eviction of the defendants was started. The principal defence raised in the written statement was that the original lessee Lall Behari Mullick having died on 16-12-70, the registered lease deed dated 11-7-1966 would fall under category of a lease for less than five years by operation of statute. Therefore, the matter will be governed by the West Bengal Premises Tenancy Act, 1956 and as a result of it, the defendants who are residing in the said suit premises with the said Lall Behari Mullick during his lifetime would become monthly tenant under the plaintiffs, by operation of law. The Hon’ble Supreme Court examined the language of Section 13(1) of the West Bengal Premises Tenancy Act and found that the parties in that act had the freedom to contract out of Section. In that case Clause (1) of the lease-deed stipulated that the heirs of lessee would have no right to hold after the death of the lessee and they were required to deliver quiet, peaceful and vacant possession within three months after the demise of the original lessee. In other words, the right had been made specifically not heritable. With the above observation, the Apex Court came to the ultimate conclusion that the appellants, in the circumstances of the case, could not claim tenancy right. But in my considered opinion, the aforesaid decision of the Apex Court is not at all helpful for the respondent, in advancing the argument, that the tenancy in question in view of the declaration and the notice given by the admitted tenant would not be heritable. In that case, as it is seen very clearly from the judgment there was a written lease-deed with a specific condition that the lease would be for the lifetime of the lessee. With a further specific agreement that the lease would not be heritable. Such lease would come to an end on the death of the lessee. But in the present case, there was no lease-deed as seen in the reported case. On the other hand admitted tenant made a declaration expressing her intention that on her death, the landlord may get back the tenancy and also gave a notice, that on her death the tenancy would come to an end. The learned Counsel for the appellant has contended that such a notice was not a notice by a tenant to the landlord under the provisions of the West Bengal Premises Tenancy Act. The tenancy in question therefore would devolve upon the heir of the admitted tenant who used to reside with such tenant at the time of her death. In other words, on the death of the tenant she would not have the right to either to surrender the tenancy in favour of the landlord or such tenancy would not be extinguished by a mere declaration that the tenancy should go to the landlord after such death.
10. It has already been submitted by the learned Counsel for the respondent that the suit filed by the plaintiff for recovery of possession of the suit flat from the defendant was not based on any of the grounds contained in Section 13(1) of the W. B. P. T. Act specially the grounds contained in Clauses (j) and (k) of Section 13(1) of the said Act. In other words, it is the contention of the learned Advocate that the plaintiff did not file the suit for eviction of a tenant on the aforesaid grounds. The suit here is for recovery of possession of the suit flat from a trespasser. According to the contention of the learned advocate in view of Ext. 1 series executed by the admitted tenant, on her death the daughter of the admitted tenant, who used to reside with her mother in the same flat during the lifetime of the said admitted tenant, became trespasser and for that reason the suit has been brought against the trespasser for recovery of possession of the suit flat. So here the question which is required to be considered is whether by way of declaration/letter written by the admitted tenant, expressing her wish that the tenancy would come to an end and the landlord, would take possession of the same, the tenancy in question was really extinguished or not. It is not disputed here that the tenancy in question in favour of the admitted tenant was governed by the West Bengal Premises Tenancy Act. Now Section 19 of the W.B.P.T. Act contains the provisions regarding notice of giving up possession by tenants under contracts and it reads as follows:
Section 19. (1) A tenant who is in possession of any premises to which this Act applies shall observe all the terms and conditions of the contract creating the tenancy and shall be entitled to the benefits thereof so far us those terms and conditions are consistent with the provisions of this Act.
(2) Notwithstanding anything in any other law for the time being in force, a tenant may give up possession of the premises on giving such notice as is required under the contract creating tenancy. In the absence of any provision in the contract relating to notice or when there is no contract, the tenant may give up possession of the premises on giving not less than one month’s notice expiring with a month of the tenancy.
Clause (2) of section, quoted above, indicates that notwithstanding anything in any other law for the time being in force, a tenant may give up possession of the promises on giving such notice as is required under the contract creating tenancy. But if there is no contract the tenant can give up possession of the premises on giving not less than one month’s notice expiring with a month of the tenancy. In the present appeal it is not the contention of the plaintiff/landlord that the tenancy in question was created in favour of the admitted tenant for her life only and on her death, it would automatically revert to the landlord. Ext.1 series depict only an intention on the part of the tenant regarding surrender on her death. But the learned Advocate for the appellant has failed to show me any law by which such surrender is permissible. On the other hand Section 19(2) has expressly provided, that in the absence of any provision in the contract (creating tenancy) relating to notice, the tenant may give up possession of the premises on giving one month’s notice expiring with a month of the tenancy. Such a provision clearly contemplated that the notice to give up possession must be given by the tenant or on his/her behalf by the agent giving at least one month’s notice. But there is nothing to suggest that the notice would be operative on the death of the tenant. Of course a heritable tenancy right, may be abandoned or relinquished by the heirs of the original tenant. Under Section 111(e) of the Transfer of Property Act, a lease of immovable property can also be determined by express surrender; that is to say, in case the lessee yields up his interest under the lease, to the lessor by mutual agreement between them or under Clause (f) by implied surrender. In the instant case, there is no allegation of implied surrender and under the provision of Section 111; the express surrender must be by mutual agreement between the lessor and lessee, which cannot take effect when one of the parties is not alive. On the other hand, I find, that it is not disputed that the defendant/daughter of the admitted tenant, used to reside with her at the time of her death. Therefore, under Section 2 (h) of the W. B. P. T. Act, she became the tenant on the death of her mother the admitted tenant under the landlord. That being the position, it is evident that the tenancy in question was not extinguished on the death of the admitted tenant and therefore the landlord/plaintiff is not entitled to get recovery of possession from the successor-in-interest of the admitted tenant and I further find that by virtue of the letter and the document as noted above which have been marked Ext. 1 series the tenancy of the admitted original tenant was not extinguished on her death. Since the learned Advocate for the respondent has clearly submitted that the present suit for recovery of possession filed against the defendant was not a suit filed under the provisions of the W. B. P. T. Act and on going through the record I find that plaintiff in the suit indeed made a prayer for recovery of possession describing the defendant as a trespasser. I refrain myself from answering the question whether the document and letter marked Exts. 1 and 1A constitute a notice, as contemplated under Section 13(1)(j) of the W. B. P. T. Act.
11. In the result, I hold that both the second appeals, namely, S. A. No. 897 and 398 both of 2001 should be allowed. Accordingly both the second appeals are allowed. Thus the judgment and decree in T. S No. 670 of 1992, decreeing the suit which are affirmed by the judgment of the Appellate Court in T. A. No. 4 of 1997 are hereby set aside. The suit is dismissed. The judgment and decree passed in T. S. No. 705 of 1993 and affirmed by T. A. No. 23 of 1997 are also hereby set aside. The suit is decreed. It is hereby declared that the plaintiff is the tenant under the defendant by virtue of the provision of W. B. P.T. Act, 1956 in respect of flat No. 11 on the first floor, Western Block, Taj Mansion, 31/A, Circus Avenue, Calcutta-700 017 and that the defendant is permanently injuncted restraining him to evict and take possession of the suit premises from the plaintiff unless through, due process of law. Having regard to the circumstances I direct both the parties to bear their own cost. Thus both the second appeals are disposed of.