Full Judgment Text
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PETITIONER:
HA MALBARI (DEAD) BY L.RS
Vs.
RESPONDENT:
NASIRUDDIN PIRMOHMAD & ORS.
DATE OF JUDGMENT: 30/09/1997
BENCH:
S.B. MAJMUDAR, M. JAGANNADHA RAO
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
Having heard learned counsel for the petitioners we are
inclined to agree with the reasoning adopted by the High
Court in the impugned order. Mr. Adhyaru, learned counsel
for the petitioners has vehemently contended that on the
death of the alleged licensee pending proceedings before the
Trial Court the proceedings abated. For that purpose he
strongly relied upon a Division Bench judgment of the Madras
High Court in Chinnan v. Ranjithammal (AIR 1931 Madras 216).
In the said decision the Division Bench of the High Court
has taken the view that a licence granted under Section 59
of the Easements Act is not annexed to property, it is not
transferable or heritable and once the licensor parts with
the property or the licensee dies, the licence comes to an
end. Strictly speaking this decision can be of no avail on
the facts of the present case as the alleged licensee has
died pending the proceedings under Section 41 of the
Presidency Small Cause Courts Act, 1882 (hereinafter
referred to as ’the Act’). However, he sought better
sustenance from a latter decision of the Madras High Court
rendered by a learned Single Judge in the case of M.
Ranganatham Pillai v. T. Govindarajulu Naidu [1950 (2)
M.L.J. 28]. The said decision, of course, is rendered with
reference to the proceedings under Section 41 of the Act.
In the said decision the learned Judge of the High Court of
Madras has taken the view that once summary proceedings are
initiated against the alleged licensee by the licensor under
Section 41 of the Act and if the licensee dies pending the
proceedings, his heirs cannot be proceeded against and the
proceedings abate. The learned Judge for coming to the said
conclusion has disagreed with the contrary view of the
Calcutta High Court in Hirendra Bhushan v. Purnachandra
[(1948) 52 C.W.N. 843]. In our vie, the said decision of
the learned Judge, with respect, runs counter to the
provision of Section 306 of the Indian Succession Act which
deals with only limited causes of action of a personal
nature which die with the person. When a licensor seek
possession from the alleged.
Licensee though in a summary manner, he seeks
restoration of the estate of immovable property which was
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permitted to be utilised by the licensee i put to an end,
the right of reversion obviously survives for the licensor
and whoever intermeddles with the property after the death
of the licensee would obviously be liable to answer the
claim of the licensor and in these proceedings it cannot be
said that such a cause of action is personal against the
licensee and dies with him.
In our view, therefore, the decision of learned Single
Judge of Madras High Court cannot be sustained on the scheme
of the Act and on the contrary, the view propounded by the
Calcutta High Court in the aforesaid decision in the correct
view. This very question was examined by a Division Bench
of the Bombay High Court in its decision in the case of Mrs.
Sakinbai. v. Salebhai Hasanali [AIR 1967 Bombay 9]. K.K.
Desai,J., speaking for the Division Bench held:
"Ejectment proceedings under
Section 41 of the Presidency Small
Cause Courts Act are for enforcing
property rights and for recovery of
properties, These are not
proceedings relating to personal
causes of action and they do not
die with the death of a party to
the proceedings whether he be an
applicant or opponent."
The High Court also in this connection placed strong
reliance on the express language of Section 306 of the
Indian Succession Act. In our view, the aforesaid decision
of the Bombay High Curt correctly analyses the scope and
ambit of Section 41. Consequently, no fault can be found
with the decision rendered by the learned Single Judge of
the Gujarat High Court, impugned before us, when he took the
view similar to the one that the High Court of Bombay has
taken in this connection.
Consequently, this Special Leave Petition is devoid of
any merit and has to be rejected. However, before we do so,
one request of learned counsel for the petitioners has to be
noted. He submitted that the petitioners are very poor
persons, they are staying in the premises since their bread-
winner had died since long and he was also getting a very
small amount for maintenance. Hence, according to him, if
the respondents are inclined to enter into some agreeable
settlement with the petitioners, it would reduce the
sufferings of the petitioners. On this request, therefore,
notice is directed to be issued to the respondents with a
view to exploring the possibility of an amicable settlement.
Notice is made returnable after six was. There will be
ad interim stay of the order of dispossession till further
orders.