G.N. Ray, J.@mdashThis appeal is directed against the judgment and decree passed by the learned Judge, 10th Bench, City Civil Court, Calcutta
in Ejectment Suit No. 979 of 1977. The plaintiff respondent instituted the said Title Suit for eviction of the defendants appellants from the disputed
premises at 12, Badur Bagan Lane, P.S. Amherst Street in the city of Calcutta on the ground of reasonable requirement of the disputed premises
by the plaintiff and the members of her family and also on the ground of default in payment of rent. The case of the plaintiff respondent was, inter
alia, that she became the landlady of the disputed premises on account of her purchase of the said property and by letter of attornment she
informed the original tenant Shri Aswini Kumar Ghosh about her title to the property and thereafter the said tenant Aswini Kumar Ghose paid rents
to the plaintiff. After the death of the said tenant, the son and the daughter of Aswini Kumar Ghose namely the defendants appellants by two
separate letters informed the plaintiff that in view of the death of the said Aswini Ghose, the original tenant, they become tenants in respect of the
premises and rent receipt should be issued to them. The plaintiff contended that the said defendants however failed and neglected to pay rent and
they defaulted in payment of rent for more than four months within a period of 12 months. The plaintiff further contended that the plaintiff
reasonably required the suit premises and she had no suitable alternative accommodation. She had been residing in one room belonging to her
mother-in-law but the said accommodation was quite insufficient because the plaintiff''s family consisted of the plaintiff, her husband and an adult
son. It was also contended that the tenancy was determined by notice to quit and such notice was served on the defendants by registered post and
such notice was received by them by putting their signatures on the acknowledgement cards. The plaintiff also contended that the brother of the
plaintiff''s husband who was a Doctor, after return from abroad, also started residing in the house of her mother-in-law and it become very difficult
to accommodate the said brother and to provide suitable accommodation for his chamber. It, however, appears that subsequently in view of the
order passed in a proceeding u/s 17(2) of the West Bengal Premises Tenancy Act in the suit, the plaintiff gave up the case for eviction on the
ground of default. It may also be noted that an application for amendment of the plaint was allowed by the learned trial Judge and by such
amendment the plaintiff contended that in view of the extreme bitterness with her mother-in-law and other members in the said house for want of
proper accommodation the plaintiff had to leave the said house of her mother-in-law and she was compelled to reside in a flat belonging to her
elder sister as her licensee in Behala. The aforesaid suit was contested by the defendant appellant by filing a written statement inter alia disputing
the allegations made in the plaint. An application for amendment of the written statement made by the defendants was allowed by the learned trial
Judge and by the amendment of the written statement the defendants further contended that the original tenant Aswini Kumar Chose having died,
his interest devolved not only on the defendants who were his son and one of the daughters but such interest in tenancy also devolved on two other
daughters. No name and other particulars of the other daughters were howevere disclosed in the additional written statement. At the hearing of the
suit, the husband of the plaintiff deposed to the effect that the plaintiff and the members of the family reasonably required the suit premises and the
premises belonging to the mother-in-law of the plaintiff had been sold and before the sale of the said property because of the family dispute for
want of accommodation the plaintiff had to leave the suit premises and she had been residing in a flat belonging to her sister at Behala. The
Secretary of the Cooperative Housing Society under which such flats belong, has been examined by the plaintiff as an witness and it has been
stated in deposition by the said Secretary that without the permission of the Go-operative Society such flat cannot be let out to any tenant and the
plaintiff and the members of her family were residing in the said flat belonging to a member of the Co-operative Society as a licencee of such
member. The husband of the plaintiff has further stated in his deposition that the son of the plaintiff being grown up has since been married and a
son has also been born to him. Accordingly, there is urgent need of accommodation for the plaintiff, her husband and son and daughter-in-law and
the grandson and precisely for the said purpose, the decree for eviction on the ground of reasonable requirement should be passed. On behalf of
the defendants, the husband of the defendant no. 1 deposed and it was stated by the husband of the said defendant no. 1 that the plaintiff had
suitable alternative accommodation in the house belonging to her mother-in law and the husband of the plaintiff and that the original tenant Aswini
Kumar Ghose having died, the interest in tenancy devolved on the defendants and one of the daughters who was then living and the heirs of a pre-
deceased daughter. It was stated by the said husband that two of the grand daughters of the said Aswini Kumar Ghose had in fact stayed with the
said Aswini Kumar Ghose while he was alive. The husband of the defendant no. 1 also stated in his deposition that no notice determining the
tenancy had been served on any of the defendants and the signatures on the postal acknowledgment receipts were not the signatures of the
defendants. The learned trial Judge on comparison of the admitted signatures of the defendants on other documents in the suit, with the signatures
in the letters written by the said defendants after the death of Aswini Kumar Ghose to the effect the they became the tenants and the rent receipt
should be issued to them and also with the signatures of the defendants appearing on the postal acknowledgment receipts by which the notices of
eviction were stated to have been served on the said defendants, came to the finding that the said letters had been written by the said defendants
and they also accepted the service of the notice by registered post by putting their signatures. The learned trial Judge also came to the finding that
the plaintiff had no suitable accommodation and she had been residing in two rooms in flat at Behala only as a licencee of her elder sister because
of want of any accommodation and the plaintiff and the members of the family reasonably required the suit premises. It appears that a serious
dispute was raised before the learned trial Judge that since the other heirs of the original tenant of Shri Aswini Kumar Ghose had not been
impleaded in the suit and no notice determining pendency of the disputed premises had been issued and served on the said other heirs, the suit for
eviction was not maintainable. The learned trial Judge, however, came to the finding that at no point of time, the defendants disclosed the names of
other heirs of late Aswini Kumar Ghose. On the contrary, the defendants informed the plaintiff landlady that they.become the tenants after the
death of their father Sri Aswini Kumar Ghos''e and rent receipts should be issued in their names. In the aforesaid circumstances, the learned trial
Judge held that there was no question of giving any notice determining the tenancy on the alleged other heirs and the suit was therefore maintainable
in the absence of the said other heirs. In that view of the matter, the learned Judge decreed the suit for eviction on the ground of reasonable
requirement and the instant appeal has been preferred by the defendants appellants.
2. Mr. Dasgupta, the learned counsel for the appellant has streneously contended before us that the tenancy right being heritable, such right had
develoved on all the heirs of the original tenant, Sri Aswini Kumar Ghose. He has submitted that it is not the case that sri Aswini Kumar Ghose was
a statutory tenant after the determination of contracts tenancy. Admittedly, the original tenant had died during the continuance of the contractual
tenancy. In such circumstanecs, all the heirs of Sri Aswini Kumar Ghose had inherited the tenancy lights and all of them became tenants-in-
common. Accordingly, it was the bounded duty of the plaintiff landlady to determine tenancy by issuing notice to all the said heirs, but admittedly
such notice of determination of tenancy had been served only on defendants nos. 1 and 2 and the other heirs not being impleaded as parties
defendants in the suit, the suit was bound to fail for want of proper determination of the tenancy of all the tenants and for not impleading necessary
parties in the suit. In support of this contention, Mr. Dasgupta has referred to a Bench decision of this Court made in the case of Krishna Dhone
Pramanik v. Ram Palat Sahoo reported in 84 CWN 447. It has been held in the said decision that Section 2(h) of the West Bengal Premises
Tenancy Act only refers to such heirs of statutory tenancy who had been living with the statutory tenant at the time of his death, but where the
contractual tenant dies before the institution of the suit, all the heirs of the deceased contractual tenants are tenants under the West Bengal Premises
Tenancy Act. He has also referred to another Bench decision of this Court reported in ILR 1966(1) Cal 252. In the said case, after the death of a
contractual tenant the landlord issued rent receipts in respect of only one of the heirs of the original tenant and after determination of the tenancy in
respect of the said heir, the suit for eviction was instituted. The question arose for consideration before this Court as to whether or not the suit was
maintainable in the absence of the other heirs. It was held in the said decision that the said suit was bad for want of necessary parties, namely, the
other heirs of the original tenant. It was, however, held in the said decision that the notice for determination of tenancy was required to be issued in
the name of all the co-tenants but. service of such notice on one of the tennt was sufficient. Mr. Dasgupta has also referred to another Bench
decision of this court made in the case of Ajit Kumar Roy v. Satya Bala Duti reported in 78 CWN 19. Referring to the provision of Section 19 of
the Hindu Succession Act, the Division Bench held in the said case that all the heirs of a contratual tenant would inherit the tenancy right and they
would become tenants-in-common. Hence, notice of termination must be addressed to all the heirs but service could be effected on some and it
was not necessary to serve on all the said tenants-in-common. Mr. Dasgupta contended that it was the bounden duty of the plaintiff landlady to
enquire, on being intimated by the defendants about the death of the original tenants Shri Aswini Kumar Ghose, about the names and particulars of
all the heirs of the said Aswini Kumar Ghose because all such heirs became tenants in common in respect of the disputed tenancy. The landlady
failed and neglected to make such enquiries and had only determined the tenancy of two tenants-in-common namely the defendant nos. 1 and 2
and brought the suit for eviction only against the said tenants-in-common. Accordingly, on the admitted position, the suit was bound to fail and the
learned trial Judge was wrong in holding that the suit was maintainable and decree for eviction should be passed. Mr. Dasgupta has also contended
that it has been only brought in evidence on behalf of the plaintiff that the plaintiff and the members of her family had been residing in a flat
belonging to her sister as a licencee. Unless it can be established to the satisfaction of the court that licence was a precarious licence, the plaintiff
was not entitled to get the decree for eviction on the ground of reasonable requirement for want of any suitable alternative accommodation. This
important aspect of availability of alternative suitable accommodation has not been taken into consideration by the learned Judge in the proper
perspective.
3. Mr. Mitter, the learned counsel for the plaintiff has however submitted that on the face of the evidence that for want of suitable accommodation,
the entire family of the plaintiff has been forced to live as a licencee of her sister in two rooms of the flat of her sister at Behala which was away
from the disputed premises and from her place of work, the case of want of suitable accommodation has been convincingly established. Any
temporary accommodation given to a relation by way of a licencee cannot be held to be a suitable alternative accommodation. Therefore, the
learned Judge was justified in holding that the plaintiff reasonably required the premises for her occupation and also for the occupation of the
members of the family. Mr. Mitter has also submitted that at the time of hearing of the suit the family of the plaintiff consists of plaintiff herself, her
husband, a grown up son, his wife and a child. For such composition of the family, occupation of two rooms in the said flat at Behala is not
sufficient. Mr. Mitter has further contended that the defendants after the death of the original tenant Aswini Kumar Ghose did not inform the
plaintiff that there were others heirs of the deceased original tenant. On the contrary by two separate letters written by both the defendants they
informed the landlady that they had become the tenants after the death of the original tenant and rent receipts should be issued in their name.
Although attempts were made by the defendants to deny the writing of such letters (Ext. 7 series), the learned Trial Judge on comparison of the
admitted signatures of the defendants with the signatures appearing on the said letters has held that the said letters had been written by the said
defendants. Mr. Mitter has also before this Court that the defendants although asserted that such letters had not been written, they did not take any
step to get the signature appearing in those letters verified by any handwriting expert and such inaction on the part of the defendants has been
rightly commented upon by the learned Trial Judge. Mr. Mitter has further contended that tenancy right is heritable and the heirs of the deceased
tenant inherit such tenancy right but simply because such tenancy right is heritable, such tenancy cannot be imposed on any of the heirs inheriting
such tenancy right against the will of such heir. It is entirely a discretion on the part of such heir of the original contractual tenant either to accept the
heritable right of tenancy and/or to denounce the same. Mr. Mitter has contended that none of the other alleged heirs of Aswini Ghose has been
residing in the suit premises at the time of death of the original tenant or at the time of determination of tenancy and none of them had ever
exercised the right of tenancy by claiming such right and/or by making any payment of rent. On the contrary, only the defendant nos. 1 and 2
claimed the tenancy right by inheritance and by writing letters to the plaintiff landlady requested the plaintiff landlady to issue rent receipts in their
names. In such circumstanecs, it must be held that the defendant nos. 1 and 2 only accepted the right of tenancy on the basis of the heritable right
of such tenancy. In this connection, Mr. Mitter has referred to a Bench decision of this Court in the case of Uma Roy v. Smt. Maghmala Dey &
Anr., reported in 1988(2) Calcutta Land Journal 128 . In the said case, all heirs of the original tenant were impleaded but later on the names of all
the other heirs excepting two daughters were struck off. The question arose for consideration before this Court as to whether or not the suit was
maintainable in the absence of other heirs whose names had been struck off. It was held in the said decision that although the tenancy is heritable
but such tenancy cannot be imposed upon the heirs, of the original tenant and if any tenant abandons or relinquishes such right such heir ceased to
be a tenant. In the said case, however, the defendants in their written statement accpeted the position that the defendant nos. 3 and 4 whose names
were not struck off were the only tenants and others had surrendered the tenancy. Accordingly it was held that the suit was maintainable in the
absence of such heirs. Mr. Mitter also has referred to a recent decision of Supreme Court made in the case of H.C. Pandey Vs. G.C. Paul, . In the
said case, on the death of original tenant, besides the respondent in the Appeal"" before the Hon''ble Supreme Court, there were other heirs of the
original tenant narely the mother, brothers and sisters of the respondent. A notice for determination of the tenancy u/s 106 of the Transfer of
Property Act was issued only in the name of respondent and such note was not served and addressed to any other heir. The suit for eviction was
filed against the respondent, namely, one of the sous of he original tenant. The question arose for consideration before the Supreme Court as to
whether or not such notice for determination not laving been addressed to other heirs of the original tenant was a valid notice and whether or not
the suit for eviction instituted only against one of the heirs was maintainable. It has been held by the Hon''ble Supreme Court in the said decision
that on the death of the original tenant, subject to any provision to the contrary either negativing or limiting the succession, the tenancy right
devolves on all the heirs of the deceased tenant. The incidence of the tenancy are the same as those enjoyed by the original tenant. But it is a single
tenancy which devolves on the heirs. There is no division of the premises or of the rent payable therefore. That is the position as between the
landlord and the heirs of the deceased tenant. In other words, the hers succeed to the tenancy as joint tenants. The Supreme Court over-rued the
decision of the Allahabad High Court reported in Ramesh Chand Bose Vs. Gopeshwar Pd. Sharma, wherein it was held that the heirs of the
deceased tenant succeeded as tenants-in-common. Mr. Mitter has submitted by relying on the decision of the Supreme Court that as all the heirs
of the original contractual tenant were joint tenants such tenancy had in fact been represented by the defendants who had paid rent in respect of
such joint tenancy. Accordingly, the determination of tenancy by issuing notice to the said defendants was a valid notice determining the joint
tenancy and the suit for eviction instituted against the defendants representing the joint tenancy was also maintainable.
4. Mr. Dasgupta in reply to the aforesaid contentions of Mr. Mitter has submitted that even if it is accepted that the defendants claimed tenancy
right after the death of their father and requested the landlady to issue rent receipts in their names by writing letters to that effect it was not stated in
the said letters that there was no other heir or the other heirs did not claim tenancy right. He referred to the decision of the Privy Council reported
in 60 I. A. 167 and a decision of this court reported in 17 CWN 833. The case decided by the Privy Council related to sale of tenure under
Chotanagpur Tenancy Act and the case decided by this Court related to a suit for rent of a raiyat under the Bengal Tenancy Act. It was held in the
said decisions that in such suits all the heirs of the deceased tenant should be impleaded. Mr. Dasgupta has submitted that no effective decree for
eviction can be passed binding all the heirs of a deceased tenant if the tenancy is not determined against them and if the suit is not brought against
them.
5. After considering the respective contentions of the parties, it appears to us that in the facts of the case, the learned trial Judge has rightly held
that the letters had been written by the defendants intimating the plaintiff landlady that after the death of their fatter they became tenant in respect of
the disputed premises and the not receipts should be given names. We also uphold the finding of he learned trial Judge that notice for suit by
determining the tenancy had been sent by registered post to both the defendants and they accepted the same by putting their signatures on the
acknowledgment receipts. The denial of such signatures by the said defendants could not be established by the defendants and it may be noted that
none of the defendants came forward to deny such signatures but such attempt was made through the husband of the defendant no. 1 and for
cogent reasons indicated in the judgment, the learned Trial Judge has rejected the case of the defendants that the said letters had not been written
by the defendants and the notice for eviction had not been received by the defendants.
6. Considering the facts and circumstances of the case, it appears to us that the plaintiff succeeded in establishing by convincing evidences that
under a very compelling circumstance, she was forced to remain as a licensee in her elder sister''s flat and no tenancy is permissible in respect of
such flat without the leave of the Cooperative Housing Society of which the sister is a member. It appears to us that the accommodation as
licencee in the said flat is insufficient and such accommodation on the face of it must be held to be a precarious accommodation absolutely
depending on the good gesture and kind permission of a sister. If a close relation considering the acute hardship permits a close relation to reside
for some time in a flat of such relation such accommodation is inherently a temporary and precarious accommodation and not a reasonable
alternative accommodation. So far as the maintainability of the suit for not determing the tenancy of the alleged other heirs of contractual tenant and
for not bringing the suit against such other heirs is concerned, it appears from the evidence of the husband of the defendant no. 1 that one of the
married daughter long pre-deceased the original tenant and none of the married daughters and/or their successors had been residing in the disputed
premises. Although it has been stated in the evidence of the husband of the defendant no. 1 that some of the grand daughters had stayed with their
grand-father Aswini Ghose, such fact of stay of some of the grand children with their grand father while he was alive even if accepted does not
establish that the other heirs had ever exercised their right of tenancy when such rights devolved on them after the death of the original contractual
tenant. The heritable tenancy right may be accepted or abandoned or relinquished by the heirs of the original tenant. In our view, such tenancy right
may be abandoned or surrendered either expressly or by conduct of the parties. In the instant case, it is quite evident that the heirs of the pre-
deceased daughter and the other married daughter of the original tenant had never exercised any right of joint tenancy in the disputed premises
after the death of Aswini Kumar Ghose. On the contrary only the defendants asserted such right and claimed to be the tenants by way of
inheritance of the tenancy right and they requested the plaintiff landlady to issue rent receipts in their names and rents were also paid by them. It
should be noted here that even in the additional written statement the names of the other heirs of the deceased Aswini Kumar Ghose have not been
disclosed and it has not been stated either in the original written statement or in the additional written statement that such heirs has also exercised
their right in tenancy, after the death of the original contractual tenant. It has been held by the Supreme Court in H. C. Pandey''s case that a suit in
respect of the joint tenancy by issuing notice determining the tenancy to only one of the heirs of the original tenant and impleading only one of such
heirs and leaving aside the other heirs is maintainable because the joint tenancy of the heirs of a deceased tenant is represented by one of the heirs
who is also one of the joint tenants. In our view, the decision of the Supreme Court squarely applies to the facts of this case more so when the
alleged heirs had never come forward to assert their heritable right in the joint tenancy and the defendants 1 and 2 had only exercised such
heritable right of tenant and had paid rents for such tenancy right. In such circumstances, even assuming for the argument''s sake that the alleged
heirs had become joint tenants in respect of the tenancy after the death of the original contractual tenant and they had not surrendered and/or
abandoned their tenancy right, the defendants must be held to have represented the other joint tenants. We, however, hold that in the facts of the
case the other alleged heirs of Aswini Ghose by their conduct, must be held to have surrendered and/or abandoned their heritable right, in the joint
tenancy, accordingly, the determination of tenancy by issuing notice to the defendants was sufficient and the suit for. eviction against the defendents
representing the joint tenancy is also maintainable and the decree for eviction binds all the joint tenants.
In the circumstances, no interference is called for against the judgment and decree passed by the learned trial Judge and the appeal therefore fails
and is dismissed with costs.
Pabitra Kumar Banerjee, J.
I agree.