K.J. Sen Gupta, J.@mdashThis appeal under the Letters Patent has been preferred by the defendants 1 and 2 against a decree for ejectment passed against them as also against other defendant-respondents 5 to 10 by, Sri S.K. Sen, learned Judge, 9th Bench, City Civil Court at Calcutta in ejectment suit No. 2269 of 1963 affirmed by Mr. Justice A.K. Sinha in First Appeal No. 197 of 1967. The brief fact out of which this appeal arises may be stated like this :
Premises No. 32/13A, Beadon Street was held by Dr. Panchanan Chatterjee as a monthly tenant at a rental of Its. 250/- under the landlord respondents 1 to 4. Dr. Chatterjee died on the 23rd of May, 1963 leaving respondent Nos. 5 to 9, his daughters, his only heirs; during his life time he executed a will appointing the appellants and one Samir Mukherjee respondent No. 10 as the executors to that will.
2. The plaintiffs brought the ejectment suit No. 2269 of 1963 in the City Civil Court at Calcutta for ejecting the heirs and the executors to the will of Dr. Panchanan Chatterjee, mainly on the grounds that they were defaulters; that the premises in question was used for the purpose other than the purpose for which the said tenancy was taken; but the main ground on which the eviction of the tenant defendants is prayed for is that Dr. Panchanan Chatterjee transferred the said tenancy without the consent in writing of the landlords. Prior to the institution of the suit a notice of ejectment and of a threat to sue was served upon the executors to the will and also upon the daughters of Dr. Panchanan Chatterjee, the original tenant. The trial court negatived the first two contentions that the tenants were the defaulters and that the said tenancy was used for the purpose other than the purpose for which it was taken settlement of but held that the said tenancy was transferred to one Dr. Baren Chatterjee, nephew of Dr. Panchanan Chatterjee by means of a will which, according to the learned Judge, was a transfer as contemplated u/s 13 (1) (a) of the West Bengal Premises Tenancy Act (hereinafter referred to as the Act). The trial court on that basis decreed the suit. The executors to the will of Dr. Panchanan Chatterjee preferred the first appeal in this court which was heard by Sinha, J. The judgment and decree of the trial court was upheld by Mr. Justice Sinha. Against the said decision this appeal under the provisions of letters patent has been preferred.
3. The contention of the appellants was that they were never defaulters and that they did not use the premises in question for business purpose. Their main contention was that the will which was executed by Dr. Panchanan Chatterjee could not constitute a transfer or assignment as contemplated u/s 13(1) (a) of the Act. They also disputed the legality of the service and sufficiency of the notice which were alleged to have been served upon the appellants and the daughters of Dr. Chatterjee. The daughters also entered appearance and" supported the contention of the executors to the will of Dr. Chatterjee.
4. The trial court as well as the first appellant court were of the views that the notice, served upon the executors and the daughters of Dr. Chatterjee was legal and sufficient and that the will executed by Dr. Chatterjee, in fact constituted a transfer or assignment as contemplated u/s 13(1) (a) of the Act. On the said finding the trial court decreed the suit and directed eviction of the appellants and the daughters from the premises in question. The said finding has been upheld in the first appellate court by Sinha, J. But the same has been challenged in this appeal.
5. Two points have been raised in this appeal by Mr. Chatterjee while challenging the decision in question. Firstly it has been contended that the finding of Sinha, J. that Dr. Chatterjee by his will transferred the tenancy in question in favour of his nephew Dr. Biren Chatterjee and as such, the tenant cannot get any protection as provided in section 13(1) (a) of the Act, is wrong and should be set aside. Secondly, it has been canvassed that the notice of eviction was served even before probate of the will was granted and accordingly the notice not being served on proper person the suit is liable to be dismissed.
6. To understand the first point raised by the learned Counsel of the tenant appellants, we may refer here to the relevant provision of the Act which is as follows:
Sec. 13(1)-- Notwithstanding anything to the contrary to any other law, no order or decree for the recovery of possession of any premises shall be made by any court in favour of the landlord against a tenant except on one or more of the following grounds, namely: (a) when the tenant or any person residing in the premises let to the tenant without the previous consent in writing of the landlord transfers, assigns or sub-lets in whole or in part of the premises held by hiring.
7. The trial court held that the will executed by Dr. Panchanan Chatterjee came within the mischief of that provision and the said finding was approved by Sinha, J. in the appeal heard by his Lordship. That finding has been challenged by the appellants and it is contended that the said bar is not attracted to the facts of this case because, the transfer by a will, or rather devolution of the property by means of a will, does not come within the mischief of that clause. Mr. Chatterjee, learned counsel, submits that the will in question does not create a transfer; it really furnishes the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death, that is to say a will regulates the devolution of the property of the testator on his death. In support of the said contention, it has been urged that the transfer contemplated must be a transfer inter vivos as laid down in section 5 of the Transfer of Property Act, but as the will contemplates a devolution of the property after the death of the testator, such a transfer is outside the scope of the mischief of section 13 (1) (a) of the Act. It is argued that u/s 277 of the Indian Successions Act, the title vests from the date of the testator''s death; in such a case as the transfer does not take place immediately with the execution of the deed, the case cannot come within the mischief of that provision and as such the plaintiffs'' suit is liable to be dismissed. In our opinion, however, the said contention is not acceptable. The word ''transfer'' has not been defined in the Act. The contention that in the absence of any definition of the word ''transfer'' in the Act, its definition as given in section 5 of the Transfer of Property Act should be accepted, is not tenable. Transfer is a word of wider import than what has been defined in section 5 of the Transfer of Property Act. While defining ''transfer of Property'' in the Transfer of Property Act, special attention has been given to those sections following section 5 and as such the said definition is confined to those transactions, such as sale, mortgage, gift, lease etc. But while considering the import of the word ''transfer'' as appears in section 13(1) (a) of the Act, it should not be confined to those transactions only as contemplated in the Transfer of Property Act. The said definition of ''transfer'' as appears in the Transfer of Property Act cannot be said to be exhaustive, it merely enumerates or concentrates on those, to which the said definition was sought to be applied. The ordinary meaning of transfer means a conveyance of right, title or interest in real or personal property from one person to another, the said transfer may take place in present or in future. By means of testamentary disposition, a transfer becomes effective on the death of the testator. Great stress has been laid on behalf of the tenants on the contention that the section 13 (1) (a) of the Act, speaks of transfer in praesenti and so a ''will inasmuch as it contemplates a transfer in future, does not fall within the scope and ambit of the bar created by section 13 (1) (a) of the Act. In our view, though the will becomes effective on the death of the testator and grant of a probate, the said argument of the appellants is not acceptable. A similar question was raised in the case of Nathu and Others v. Devi Singh and another reported in AIR 1966 Punjab 266. That is a bench decision of the Punjab High Court wherein their Lordships held that transfer of tenancy by a will was also contemplated by the provision of Delhi and Ajmer Rent Control Act 1952. Their Lordships held :
under sub-section 1 of section 13 of this Act no decree or order for the recovery of possession of any premises can be passed against any tenant. There are, however, some provisions to this sub-section and it is important to note that the immunity enjoyed by a tenant under sub-section (1) shall not apply to a tenant who without obtaining the consent of the landlord has before the commencement of this Act "sub-let, assigned or otherwise parted with the possession of the whole or any part of the premises.
8. Their Lordships held that the said bar applied both to the contractual and statutory tenant. In this connection it was urged that the said restriction was applicable to a tenant in respect of alienation during his life time. The, said argument was repelled by their Lordships thus:
There is nothing to justify such a construction being placed on the provisions of proviso (c) of subjection (1) of section 13 of the Delhi and Ajmere Rent Control Act, and it would indeed be strange that when a tenant is prohibited during his life time from making any transfer of the premises under his tenancy, is permitted to do so by execution of the will to operate after his death.
The above restriction is almost pari passu in terms with the restriction as provided in section 13 (1) (a) of the Act.
9. In this connection the purpose for which the section 13 (1) (a) has been enacted may be considered. The object of that section is to restrain the tenants from making profit or from putting the landlord to trouble by transferring, assigning or sub-letting the tenancy without consent of the landlord. The said purpose may be frustrated in case, the contention of the appellants be accepted, it would allow the tenants to cause something to be done after his death which he during his life time was by law restrained from doing.
10. In this connection our attention has been drawn to a decision in the case of Dr. R.C. Sakhuja and others v. R.P. Kohil and another, reported in All India Rent Control Journal, 1969. That is the decision of Dua C.J. (as he then was) of Delhi High Court in S.A.O. No. 82 of 1968, decided on 25th July, 1969. The question that arose for decision in that case was whether a bequest by will of the landlord''s interest in the premises where a tenant resided, came within the mischief of section 14(6) of the Delhi Rent Control Act. To understand that contention of the appellant that the transfer, contemplates in the Premises Tenancy Act, is a transfer other than transfer by will-- we may refer here to the provision of the Delhi Rent Control Act on which they rely. Sub-section 6 of section 14 of that Act reads as follows :
(6)--where a landlord has acquired any premises by transfer, no application for the recovery of possession of such premises shall lie under sub-section (1) on the ground specified in clause (e) of the proviso thereto unless a period of five years has elapsed from the date of the acquisition.
11. A similar provision has also been made in the West Bengal Premises Tenancy Act, in sub-sec. 3(A) of section 13. It reads as follows:
Where a landlord has acquired his interest in the premises by transfer, no suit for the recovery, of possession of the premises on any of the grounds mentioned in clause (f) or clause (ff) of sub-sec. (1) shall be instituted by the landlord before the expiration of a period of three years from the date of acquisition of such interest.
12. The above provision resembles the said provision of the Delhi Rent Control Act, in major particular. It has been contended on behalf of the appellant with reference to the decision, mentioned above (S.A.O. No. 82 of 1968 of Delhi High Court) that in such a case, disposition by will is not contemplated, Dua C.J. while delivering the judgment observed: no persuasive argument of any cogency has been addressed at the Bar to persuade me to hold that devolution of property by a will could have been intended by the Parliament to fall within the purview of sec. 14(6)." Mr. Lala has submitted that the decision referred to above has not been correctly made. We refrain from expressing our view in the said matter. But it is suffice to say that the above decision has no application in the instant case as the circumstances under which that question arose are quite different. In the above case, the impediment was imposed on the landlord debarring him from bringing suit for eviction on certain grounds within certain period of his acquiring interest in the tenancy. The object and purpose of the said legislation is to protect the tenants from eviction by clandestine means; it is to prevent the erstwhile landlord who himself could not be successful to prove his bonafide requirement, from collusively setting up another either by genuine transfer or a fictitious one. Mr. Lala learned Advocate for the respondent landlords has drawn our attention to the difference in the words used in the respective section, that is, in section 13 (3A) of the Act. We find that in section 13 (3A) the bar is against acquisition and the words used are "where landlord has acquired his interest". It clearly indicates a situation where the landlord has already acquired his interest as such question of future acquisition did not arise. But in the case under our consideration the language in the section 13 (1) (a) of the Act is different. It speaks of a conveyance and it comes into effect when it becomes operative. In the former case, & time limit has been fixed but in a case like this, no such time has been fixed. Moreover, the provision in sec. 13(1) (a) of the Act, is a restriction on the tenants against using the tenancy for making gains out of the same or from putting the landlords to embarrassment or to trouble. The object of a legislative enactment is to be looked at for ascertaining the meaning of the words used therein, where those words are capable of both narrow and wide meaning. Keeping in view the purpose for which the provision of section 13(1) (a) of the Act has been enacted, we are of the views that the word ''transfer'' has been used in the wider connotation embracing a bequest by will. We may, however, mention that we do not pass any opinion in respect of the decision reported in Ail India Rent Control Journal, referred to above, as the same is based upon certain facts quite different from the ones under our consideration.
13. There is another aspect of the case which requires our consideration. We have already held that the deceased tenant has transferred such a right in favour of his nephew, though it becomes effective after his death. The said sub-section speaks of ''transfer'', ''assigns'' and ''sub-lets''. We are next called upon to consider whether such a transaction can be covered by the term ''assignment''. The ordinary meaning of assignment is the transfer of property legally made from one person to another. Reference may be made to the term ''assignee'' as defined in words and phrases legally defined ''2nd Edition by John B. Saunders'' Vol. 1. According to the said definition the term "assignee" is very comprehensive, it applies to all person who take an estate either by act of party or by act of law, such as the executors of a lessee or assignee........" The term ''assign'' is also very significant, it covers a disposition which may be operative even after death. The use of the word assign in juxtaposition with the word transfer in the section in question appears to give added strength to the word transfer by plugging the loopholes, if any was to be found open to circumbent the provision. For the reasons, stated we hold that the testamentory disposition of the tenants'' lease by Dr. Panchanan Chatterjee, comes clearly within the term assignment, as such the tenant cannot thereafter get any protection, after it becomes effective on the death of the tenant executing the will.
14. Mr. Chatterjee''s contention is that in the absence of any definition of the term ''transfer of property'' in the Act, the said term as defined in Transfer of Property Act should prevail. We have discussed the same and for the reasons stated fail to accept the said contention. Moreover, the said contention of the learned counsel of the appellants cannot apply in the case of ''assignment'' as the same has not been defined anywhere. We are to be guided by its general meaning.
15. or the reasons stated the first Contention of the appellant fails and we accept the finding of Sinha, J. that the will executed by Dr. Panchanan Chatterjee comes within the mischief of section 13 (1) (a) of the Act. So far as the disposition of his tenancy in question is concerned. Next point urged on behalf of the appellant is in respect of notice of eviction and suit, served upon the parties. They were challenged as bad in law. The said contention has no substance as the landlords served notice both on the legal heirs and the executors to the will. That was the right course to adopt as till then no probate to the will was granted. But the fact remains that one of the executors was served with valid notice. Sinha, J. has held that in the case of Joint Tenancy, service of notice on one of the co-tenants, is sufficient and that could not be a ground for dismissal of the suit. Mr. Chatterjee could not dispute the said proposition of law as the same has been settled by the decision in the case of
