Supreme Court: Eviction proceeding against a licensee will not abate on his death

When a licensor seeks possession from the alleged licensee though in a summary manner, he seeks restoration of the estate of immovable property which was permitted to be utilised by the licensee during the currency of the licence. Once the licence is 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.

2. 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 is 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 MANU/MH/0146/1967 : AIR1967Bom9 . 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 applicator opponent.

3. 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 Court correctly analyses the scope and ambit of Section 41. 

IN THE SUPREME COURT OF INDIA

SLP (C) No. 17918 of 1997

Decided On: 30.09.1997

 Ha Malbari (Dead) by Lrs. Vs.  Nasiruddin Pirmohmad and Ors.

Hon'ble Judges/Coram:

S.B. Majmudar and M. Jagannadha Rao, JJ.

Citation: MANU/SC/1355/1997

Print Page

Whether right to sue will survive if plaintiff dies during pendency of appeal in defamation suit?

 Where a suit for defamation is dismissed and the plaintiff has filed an appeal, what the appellant-plaintiff is seeking to enforce in the appeal is his right to sue for damages for defamation and as this right does not survive his death, his legal representative has no right to be brought on the record of the appeal in his place and stead if the appellant dies during the pendency of the appeal. The position, however, is different where a suit for defamation has resulted in a decree in favour of the plaintiff because in such a case the cause of action has merged in the decree and the decretal debt forms part of his estate and the appeal from the decree by the defendant becomes a question of benefit or detriment to the estate of the plaintiff-respondent which his legal representatives is entitled to uphold and defend and is, therefore, entitled to be substituted in place of the deceased respondent-plaintiff.

10. Section 306 further speaks only of executors and administrators but on principle the same position must necessarily prevail in the case of other legal representatives, for such legal representatives cannot in law be in better or worse position than executors and administrators and what applies to executors and administrators will apply to other legal representatives also.

11. The position, therefore, is that had the Appellant died during the pendency of his suit, the suit would have abated. Had he died during the pendency of the appeal filed by him in the District Court, the appeal would have equally abated because his suit had been dismissed by the Trial Court, had he, however, died during the pendency of the second appeal filed by the respondent in the High Court, the appeal would not have abated because he had succeeded in the first appeal and his suit had been decreed. As, however, the High Court allowed the second appeal and dismissed the suit, the present Appeal by Special Leave must abate because what the Appellant was seeking in this Appeal was to enforce his right to sue for damages for defamation. This right did not survive his death and accordingly the Appeal abated automatically on his death and his legal representatives acquired no right in law to be brought on the record in his place and stead.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 91 of 1972

Decided On: 29.11.1985

Melepurath Sankunni Ezhuthassan Vs. Thekittil Geopalankutty Nair

Hon'ble Judges/Coram:

D.P. Madon and G.L. Oza, JJ.

Citation: (1986) 1 SCC 118.

Print Page