Vs. Nasiruddin Pirmohmad & Ors  INSC 758 (30 September 1997)
MAJMUDAR, M. JAGANNADHA RAO
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
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.
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
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
though in a summary manner, he seeks restoration of the estate of immovable
property which was 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.
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.
v. Salebhai Hasanali [AIR 1967 Bombay 9].
K.K. Desai,J., speaking for the Division Bench held:
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.
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.
is made returnable after six was. There will be ad interim stay of the order of
dispossession till further orders.