1. As prayed for by Mr. Chatterjee, learned Advocate-on-record for the appellants, he is permitted to correct the cause title of the Memorandum of the Appeal in S.A.T. No. 3489 of 2005.
2. These two second appeals arise out of a suit for eviction and are directed against a judgment of reversal.
3. The only question that arises for determination in these two second appeals is whether in the absence of all the heirs of the deceased contractual tenant, a suit for eviction is maintainable by impleading some of the heirs.
4. In the present cases, there is no dispute that on the death of the original tenant some of the heirs have been made parties excluding two of his daughters. The plaintiffs in the plaint have not even made out a case that after the death of the contractual tenant, all his heirs surrendered the tenancy and any new tenancy was created in favour of the defendants alone. The plaint proceeded as if on the death of the contractual tenant the defendants alone inherited the property; but ultimately at the time of hearing, as pointed out by those defendants, it has been established that two of the daughters were not made parties.
5. The learned First Appellate Court below, in such a situation, came to the conclusion that in the absence of those two daughters, the suit was not maintainable.
6. Being dissatisfied, the landlords have come up with the present two second appeals.
7. Mr. Tandon, the learned Advocate for the appellants, has laboriously contended before us that the learned Court of Appeal below committed substantial error of law in dismissing the suit on the ground that in the absence of two of the daughters of the deceased tenant the suit was not maintainable by overlooking the fact that the estate of the deceased tenant was sufficiently represented by the other heirs already on record.
8. In support of such contention, Mr. Tandon has relied upon the following decisions of the Supreme Court:
(i) Kanji Manji v. Trustees for the Port of Bombay and Ors. ;
(ii) H.C. Pandey v. G.C. Pal ;
(iv) Gopal Chandra Das v. Saraswati Basak reported in 2003(1) CHN 287;
(v) Amal Krishna Aditya v. Ganesh Chandra Das reported in 1998(1) CHN 521;
(vi) Sumilita Bhattacharya and Anr. v. Nila Chatterjee reported in 1989(2) CLJ 351.
9. After hearing Mr. Tandon, the learned Advocate for the appellants and after going through the decisions cited by him, we find that there are conflicting decisions of the Supreme Court on the aforesaid question. A Bench consisting of three Judges in Textile Association (India), Bombay Unit v. Balmohan Gopal Kurup and Anr. came to the conclusion that on the death of a contractual tenant, the tenancy is inherited by all the heirs and in the absence of all the heirs, a landlord cannot get recovery of possession of the tenanted premises.
10. In a subsequent decision of a Bench consisting of two Judges in the case of Kumar Jagadish Chandra Sinha and Ors. v. Eileen K. Patricia D' Rozaric (Mrs.) it was held that
notwithstanding the definition of a tenant in the West Bengal Premises Tenancy Act, all the heirs of the deceased tenant, whether such heirs ordinarily reside with the tenant at the time of death, inherit the tenancy right and such heirs are entitled to be heard before the landlord gets possession of the tenanted premises.
11. There is, however, a subsequent decision of the Bench consisting of two Judges in the case of Ashok Chintamoni Juker v. Kishore Pandurang Mantri and Anr. where the said Bench by
relying upon the decisions of the Supreme Court in the cases of H.C. Pandey v. G.C. Pal (supra), Kanji Manji v. Trustees for the Port of Bombay (supra) and Ganapat Ladha v. Sashikant Vishnu Shinde , came to the conclusion that in case of death of a tenant, all his heirs are not required to be parties in a suit for eviction. In the said decision, the Bench no doubt took note of the case of Textile Association (India) (supra), taking a contrary view, but Their Lordships did not explain why Their Lordships had not followed the view taken therein or in what respect the case involved therein was different from those involved in the case of Textile Association (supra). In paragraph 15 of the judgment Their Lordships only made the following observation:
In the case of Textile Association (India), Bombay Unit v. Balmohan Gopal Kurup , this Court on the facts and
circumstances of the case stated therein took the view that the ex parte decree obtained against mother and brother was not binding against the respondent therein.
12. In our view, the said decision of the Supreme Court in the case of Ashok Chintamoni Juker (supra), cannot be relied upon as a precedent in view of a contrary decision given in the case of Textile Association (India) (supra) by a Bench consisting of three Judges. In the case of Textile Association (India) (supra), the said Bench considered the case of H.C. Pandey v. G.C. Pal (supra) and Kanji Manji v. Trustees for the Port of Bombay (supra), and specifically held that the principles laid down in those cases relating to the service of notice did not apply when the question of making all the joint tenants as parties in a suit for eviction arose and held that in the absence of such joint tenants, the suit was not maintainable. Moreover, in the case of Ashok Chintamoni (supra), the said Bench relied upon the case of Ganapat Ladha (supra), by totally overlooking the fact that the case of Ganapat Ladha was expressly overruled by a Bench of five Judges in the case of Gyan Debi Anand v. Jeevan Kumar .
13. In the case of Kanji Manji (supra), the Supreme Court was considering a case of eviction of an assignee from the original tenant. Two persons by virtue of assignment from the original tenant with the consent of the landlord became joint tenants under the landlord and subsequently, a suit for eviction was filed against those two persons. It appeared that one of them was already dead at the time of institution of the suit and as such, the landlord by filing an application for amendment of the plaint expunged the name of the deceased tenant and decided to proceed against the surviving tenant without impleading the heirs of the deceased joint tenant. In the suit, it was contended, inter alia, on behalf of the surviving tenant that in the absence of the heirs of the deceased tenant and in the absence of service of a notice under Section 106 of the Transfer of Property Act the suit was not maintainable. In such a case, the Apex Court pointed out that in the deed of assignment, the assignees were clearly described as joint tenant and as such, 3 suit filed on the basis of service of notice upon one of the joint tenants and in the absence of the heirs of the other was maintainable. The following finding of the Apex Court would clearly show that the said Court assumed joint tenancy on the basis of the deed of assignment and not on the ground that on the death of a contractual tenant his heirs inherit as joint tenants:
The argument about notice need not detain us long. By the deed of assignment dated February 28,1947, the tenants took the premises as joint tenants. The exact words of the assignment were that "--the assignors do and each of them doth hereby assign and assure with the assignees as joint tenants " The deed of assignment was approved and accepted by the Trustees of the Port of Bombay, and Rupji Jeraj and the appellant must be regarded as joint tenants. The Trial Judge, therefore, rightly held them to be so. Once it is held that the tenancy was joint, a notice to one of the joint tenants was sufficient, and the suit for the same reason was also good. Mr. B. Sen, in arguing the case of the appellant, did not seek to urge the opposite. In our opinion, the notice and the frame of the suit were, therefore, proper, and this argument has no merit.
14. Therefore, the decision in the case of Kanji Manji (supra), did not lay down any proposition of law that on the death of the contractual tenant his heirs inherit the tenancy as a joint tenant; on the other hand, the Supreme Court in the case of Boddu Venkatakrishna Rao and Ors. v. Boddu Satyavathi and Ors. , (a
Bench consists of three Judges) has taken the view that on the death of a contractual tenant who is a Hindu, his heirs inherit as a tenant-in-common.
15. Mr. Tandon in this connection placed strong reliance upon a decision of the Division Bench of this Court in the case of Amal Krishna Aditya (supra), where the said Division Bench preferred to follow the principles laid down in the case of Boddu Venkatakrishna Rao and Ors., (supra), but thereafter in the facts of the said case came to the conclusion that the defendant after the death of his father became the sole tenant under the plaintiff and his other brothers, though not in writing but really speaking, had relinquished their rights as tenants in respect of the suit premises by their conduct as would appear from paragraph 53 of the judgment. In the next paragraph. Their Lordships, however, observed that even assuming for the sake of argument that the other heirs did not relinquish their rights, the principles of representation will apply and the action taken against the defendant alone will bind the other co-tenants. The aforesaid observation made in paragraph 54 of the judgment, in our view, is in direct conflict with the decision of the Supreme Court in the case of Textile Association (India) (supra), and as such we are unable to follow the aforesaid observation of the said Division Bench. In the said decision, the Division Bench also referred to the observation of the Apex Court in the case of Javed Ahmed Hamid Pawala v. State of Maharashtra , where a Bench consisting of
two Judges observed that the Supreme Court sits in Division of two or three Judges for the sake of convenience and "it would be inappropriate for a Division Bench of three Judges to purport to overrule a decision of a Division Bench of two Judges."
16. In our view, the aforesaid proposition of law is no longer a good law in view of the subsequent decisions of the Supreme Court in the cases of Union of India v. Hansoli Devi
and Chandra Prakash v. State of Uttar Pradesh . Both the aforesaid decisions were delivered by Benches consisting of five Judges and it has been laid down that a Bench consisting of two Judges is bound to follow a decision given by a Bench of three Judges and the former cannot even refer the matter disputing the propriety of the decision of a Bench consisting of three Judges to a Bench of five Judges direct.
17. We are, therefore, unable to follow the decision of the Division Bench of this Court in the case of Amal Krishna Aditya (supra), so far it sought to lay down as a proposition of law that the doctrine of representation will save a suit filed by a landlord to evict the heirs of the deceased contractual tenant even if some of the heirs are not made parties.
18. In the case of Surayya Begum (supra), a Bench consisting of two Judges of the Supreme Court even after noticing the case of Textile Association (supra), was of the view that the principle of representation of interest of a person, not impleaded by name in a judicial proceedings, through a named party is not unknown. Their Lordships referred to the cases of Karta of a joint Hindu family, the cases governed by the provisions of Order 1 Rule 8 of the Code of Civil Procedure and the Explanation VI to Section 11 of the Code and observed that the examples could be multiplied. Their Lordships however made it clear that such principles would be subject to the essential condition that the interest of a person concerned has really been represented by the others; in other words, Their Lordships continued, his interest should be looked after in hona fide matter.
19. In our opinion, the aforesaid view expressed by the said Bench is in direct contradiction to the decision of Textile Association (supra), where the plea of representation put forward by the learned Counsel appearing for the landlord was turned down as would appear from the following observations made in paragraph 4 of the judgment:
Mr. Lalit, Counsel for the appellants argued that, the ex parte decree obtained against the joint tenants was equally binding on the respondent. Reference was made in this context to the decisions of this Court in Kanji Manji v. Trustees of the Port of Bombay and H.C. Pandey v. G.C. Paul .
Both the cases relate to the validity of the notice issued to one of the joint tenants. It was held that the notice issued to one of them would be valid. We do not think that the principle stated in those cases on the facts obtained are relevant to the present case. There is a finding in this case that the respondent was as much a tenant as the mother and the other brother. That being the position the exparte decree for eviction obtained against his mother and brother without impleading him in that suit has to be set aside.
20. Therefore, the said decision cannot be relied upon as a valid precedent and we propose to follow the decision of the Bench consisting of three Judges in the case of Textile Association (supra). Moreover, in this case, the landlord has not made out any case of representation of interest of others even by amendment of plaint when specific plea was taken in the written statement that the suit was not maintainable in the absence of necessary party nor is it a case of tenancy taken by a joint Hindu family, or a case under Order 1 Rule 8 or of Explanation-VI added to Section 11 of the Code.
21. The decision in the case of Sumilita Bhattacharya (supra), relied upon by Mr. Tandon was delivered at a point of time when the decision in the case of Textile Association (supra), was not delivered. Therefore, after the decision of Textile Association (supra), the aforesaid Division Bench decision taking a contrary view is no longer a good law. In the other case relied upon by Mr. Tandon, namely, Gopal Chandra Das (supra), it appears that the Division Bench took no notice of the Supreme Court decision in the case of Textile Association (supra), and, as such, the said decision cannot be said to be valid precedent.
22. As the Supreme Court in the case of Textile Association (supra), after considering the earlier decisions of the Supreme Court of India in the case of Kanji Manji (supra) and H. C, Pandey (supra), specifically came to the conclusion that the principle laid down in those cases relating to service of notice cannot have any application when the question of making of all the joint tenants as parties in a suit for eviction arises for consideration, we are bound by the said decision as the said decision has not been upset by any subsequent decision of a larger Bench.
23. Mr. Tandon as a last resort tried to convince us that the issue of maintainability of the suit not having been pressed in the Trial Court, the respondent was estopped from raising such question before the learned First Appellate Court below and also cannot raise such question before us.
24. It appears from the written statement that specific plea was taken regarding maintainability of the suit in the absence of necessary parties and notice of eviction was also challenged on the self-same ground.
25. It is true that in the judgment of the Trial Court it is recorded that issue of maintainability was not seriously pressed, but notice point was vehemently contested on the self-same ground and it has been admitted by the landlord that two of the heirs of the original tenant have really been left out. The question, therefore, being a pure question of law requiring investigation of no new fact, in our view, can be raised even at an appellate stage.
26. It is now settled law that a concession made on the question of law by the learned Counsel does not bind a litigant, and, as such, the learned First Appellate Court below rightly entertained such point. We have, however, already pointed out that the said point was not totally abandoned as it would appear from the fact that validity of the notice was also challenged on the self-same ground.
27. In this case, notice is not addressed to all the heirs, but only against the defendants, and, as such, the notice of threat of suit in terms of Section 13(6) of the West Bengal Premises Tenancy Act must be held to be invalid on that ground also.
28. We, thus, find that the learned Court of Appeal below rightly held that the suit was not maintainable in the absence of two of the heirs of the deceased contractual tenant and we do not find that any substantial question of law is involved in these second appeals.
29. We, accordingly, dismiss both the appeals under Order 41 Rule 11 of the Civil Procedure Code.
30. In view of dismissal of the appeals, the connected applications for stay filed in connection with the above appeals have become infructuous and the same are disposed of accordingly.
31. Let xerox certified copy of this order be given to the parties within one week from the date of making of such application.