TMI Blog1993 (3) TMI 383X X X X Extracts X X X X X X X X Extracts X X X X ..... 6B, Short Street and for amendment of the sale notice issued by the Official Liquidator which was published on the 4th of September, 1992. Her complaint is that the said sale notice seeks to 6A, Short Street on an as is where is basis with tenants, whereat in fact there are no tenants but only unauthorised trespassers, and the property should be tendered vacant before sale so that a far larger price is obtained than would be otherwise available if it sold with the illegal occupants. 4. The fourth application is by the owner of 6D, Short Street-one Khemka who had purchased from certain Jhunjhunwallas the said property measuring about 12 cottahs 14 chitaks 34 Square feet. The prayers in the application of Khemka are for a clarification that the sale notice of the Official Liquidator should not be read to as to include any portion of the building which falls on 6D, Short Street, though, admittedly, by far the larger portion of the said same building it in 6A. Mr. Sen appearing for the Khemkas has also laid that the sale notice should specify the reservation of a common passage in 6A, Short Street which according to Mr. Sen should be kept open for the owners and occupiers of 6D fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n earlier arrangement, by way of which, the company had become the collecting agent of the entire monthly rent for all the three lessors. 14. The official Liquidator was duly tendered the turn of ₹ 1100/- per month for several yean from 1970. How and in what manner such lender became a matter of dispute and controversy and at what period of time it explained below. 15. Ezekaiel and Solomon both died in the mid 1970's. None had married. Their nearest heirs in accordance with lection 47 of the Indian Succession Act would be their brothers or their sisters or the children of the brothers or sisters. 16. Though the brothers died in the 70's Marie survived until 1986. There it no dispute that until 1986 Marie would be a protected tenant under the West Bengal Premises Tenancy Act and as such the sums paid monthly to the Official Liquidator until for the month of March, 1986 were paid and accepted by him without any scope for dispute from anybody. 17. Marie died a lunatic in March, 1986. She was also unmarried. Her nearest heirs also brothers, sisters and the children of brothers and sisters. The point, therefor, arises as to the right of the persons, if any, to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... school on the ground floor of the said premises. He has, on his own showing, given licence to the school to function. Again on his own showing, he is the patron of that school. It is said that the school is run on a charitable basis for handicapped children. The show is run by Hallen and be has relied upon photographs to emphasize his central so far as possession of the company property is concerned. Hallen and his school are mere trespassers. There is no document to show any legal right of Hallen or his school to continue in possession of 6A, Short Street, in opposition to the interest of the Liquidator or in opposition to the interest of the company (in liquidation). 23. If the pleadings were to be taken on a strict basis this would be an end of the case. There would be no difficulty in ordering the Official Liquidator to effect summary eviction of Hyam Josoph Hallen and all others occupying under his leave or licence from 6A Short Street. There would be no difficulty in directing such summary eviction from the out-houses of 6A, Short Street where certain menials like Dhobis, one electrical engineer, and one packer-mover were found by the special officer to be staying, and w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edhyay v. Sree Sree Madan Gopal Jew, reported in 67 Company Cases, page 394, and another Division Bench judgment in the case of (2) Indramoni v. Shriram Jute Mill (P) Ltd., which is quoted from in the said former decision. It is unnecessary to quote the said passage once again but these Division Bench authorities recognise the summary power of the Company Court to order and to enforce eviction of a trespasser. 28. Mr. Das could not show anything to dispute that under the Jewish Law of Succession Trixie mordcoal would not be the closest heir of Marie Mordecal. This is because, to mention but one of the many other closer heirs and heiresses of Marie, David Mordecai, the husband of Trixie Mordocal, had children one of whom is . She is a brother's child so far as marie is concerned and as such she would exclude her mother Trixie who would only be a brother's wife so far as marie is concerned. Cheryl Isaac it not and was not at any material time ordinarily a resident of 6, Short Street. Nobody is appearing for her today. It was recorded in an order passed on the 26th June, 1986 that Hallen was a constituted attorney of Cheryl Isaac and many others and that the said persons w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction of Sec. 2(h)? 34. The answer to this question must be in the negative. A living person has no heir, and the heirs of a person can be ascertained only upon hit death. Those only are the heirs of the dead person who succeed to property of the deceased at on intertacy. That there are heirs further removed is only a way of loose expression. The correct expression would be that those relations further removed have not become heirs upon the death of the deceased because of the presence of the nearer relations, but they might have become the heirs under certain other . There is no reason to interpret the word heir occurring in Sec. 2(h) in any way different from the way it is interpreted in the rest of the body of the laws. 35. In the instant case therefore Trixie Mordecal would not be a protected tenant under Sec. 2(h) because she war not the heir of Marie Mordecal who died in 1986. To mention but one, Cheryl Isaac, Trixie's daughter would totally exclude Trixie from the heirship or part heirship of Marie Mordecal. 36. So far to good. But, Mr. Das said, that notwithstanding the special mention of heirs residing with a tenant in Sec. 2(h) of the West Bengal Premises ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... others was the first to alter His Lordships views taken in an earlier case and explained the many principles why statutory should also be considered to be an estate like an ordinary tenancy under the Transfer of Property Act. Indeed, one rarely hears these days that a leasehold is a chattel interest in real property passing on to those known as the next of kin. 41. But the said case also clearly indicates, as even the begining of the head-note would show, that the heirs of the deceased tenant will step into the position of the deceased tenant even if he is only a statutory tenant if and only if there are no words to the contrary in the rent legislation in question. 42. In our Rent Act the special mention of heirs residing with the statutory tenant cannot be robbed of all content. The high authority of a Five Judge Bench is at least matched by the high authority of words in the legislation enacted by a competent legislature. Upon the principle expresslo a jusest excusio it would mean that the special mention of heirs resident with the tenant exclude all those heirs who are not ordinarily resident with the tenant. 43. If such an exclusion is not to be implied then it wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the notice of termination was bad in law and in that case the non residing heir would also succeed to the unterminated tenancy as on intestacy. This is because in case of an invalid notice of termination, there is no real termination, and the tenant remains entitled to his property, being his tenancy, and is not relegated yet to the class of the merely statutorily protected and so called tenants. 48. The proposition, therefore, that all heirs need to be substituted in place of a deceased tenant defendant, is different from the proposition that all the heirs of a statutory tenant succeed to his statutory tenancy. 49. I also accept to proposition deducible from the above cases, that in case of tenancy not determined as to its contractual status, the same is ordinary property and devolves upon all heirs whether residing with the tenant or not. 50. Cheryl Isaac, therefore, would not be a person entitled to succeed to the statutory tenancy of Marie Mordecal, even though she might be an heir as on intestacy of the said Marie Mordecal. She would not be a statutory tenant in West Bengal because she was not residing with Marie Mordecal ordinarily in 1986 or at any other mater ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any dictum of the Madras Full Bench was differed from by the Supreme Court. The principle laid down by the Madras Full Bench is, therefore, good law. I respectfully follow the same. 55. Mr. Das submitted that the Official Liquidator has not created anything new by accepting the monthly payments after March 1986. If that is so, then of course the problem does not arise and the question reverts to the earlier question as to whether Trixie Mordecai or anybody else like Cheryl Isaac can claim protection under the West Bengal Premises Tenancy Act, I have already held that they cannot. 56. Mr. Chatterjee relied also upon the case (9) Ravindra Ishwardas Sethna v. Official Liquidator, High Court, Bombay reported in(1983) 4 SCC 269 : AIR 1983 SC 1061 and I accept the said case to be a good authority for the proposition that in liquidation proceedings summary eviction can be ordered in appropriate case and no suit regularly filed is necessarily called for before such an or order is passed. 57. The Official Liquidator should hereafter, therefore, not accept any further monthly payment in respect of the company property. He must also return in the manner directed below the sums recei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is cancelled and a fresh sale notice is to be published with the modifications indicated below; (b) The Official Liquidator shall within 7 days from date hereof return to the Advocate on Record of Mr. P.K Das the pay order deposited by Hallen as 10% price i.e, ₹ 1 lakh, and ₹ 91,300/- by an A/C Payee Cheque drawn by the Official Liquidator in the name of Hyam Joseph Hallen. Hallen would be entitled to enqash the said cheque and appropriate the proceeds either for sell or as constituted attorney of Trixie Mordecai without prejudice to the rights and contentions of Hallen or Trixie that by the payment for the 83 months there had arisen in their favour a right to stay on in the premises, assuming Hallen or Trixie Mordecai find it necessary to urge such a point before any tribunal or court of law in any proceeding hereafter or in continuation hereof; (c) The Official Liquidator shall forthwith get the entirety of 6A, Short Street vacated. The Official Liquidator shall be entitled to have police help in case any obstruction is met with in this regard. After vacating of the said property the Official Liquidator shall raise partition walls for segregation, if necessary ..... X X X X Extracts X X X X X X X X Extracts X X X X
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