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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.