Calcutta HC Upholds Eviction of Husband After Wife-Tenant's Death, Rejects Section 2(g) Claim Under West Bengal Premises Tenancy Act
A Division Bench of the Calcutta High Court affirmed eviction of a husband who failed to prove financial dependence on or ordinary residence with his deceased wife-tenant at the suit premises.
A Division Bench of the High Court at Calcutta, comprising Justice Sabyasachi Bhattacharyya and Justice Sandip Kumar De, dismissed an appeal by Ashok Jaiswal against an order of eviction passed by the Tenth Bench, City Civil Court at Calcutta. The eviction arose from the death of Madhuri Jaiswal, Ashok's wife and the original tenant of the suit premises. The Trial Court found that Ashok did not qualify as a “tenant” within the meaning of Section 2(g) of the West Bengal Premises Tenancy Act, 1997. The Division Bench, hearing the appeal on 19 August 2026, found that Ashok's own cross-examination demolished his defence, confirming that he was neither financially dependent on his wife nor ordinarily residing with her at the suit premises during her lifetime.
The Dispute Before the Court
Madhuri Jaiswal was the recorded tenant of the suit premises. After her death, the landlord — respondent Amalendu Kumar Nandi — brought Title Suit No. 111 of 2022 in the City Civil Court at Calcutta, asserting that the tenancy stood extinguished upon Madhuri's death under Section 2(g) of the West Bengal Premises Tenancy Act, 1997. The plaint pleaded, in paragraphs 1 and 2, that Madhuri was the recorded tenant and that her death extinguished the tenancy as provided under that provision.
Section 2(g) of the 1997 Act defines “tenant” and, by its proviso, extends the protection of tenancy to a family member who was dependent on the original tenant and was ordinarily residing with that tenant at the time of death. Ashok claimed he was such a person — a dependent spouse who ordinarily resided with Madhuri at the suit premises. The Trial Judge rejected this claim and passed an eviction decree on 16 January 2026. Ashok challenged that decree before the Division Bench in FA 97 of 2026.
Three Arguments Pressed in Appeal
Mr. Anshunath Chakraborty, appearing for Ashok, advanced three distinct contentions before the Division Bench.
Absence of pleadings: The plaint did not separately plead the ingredients required to exclude a person from the definition of “tenant” under Section 2(g) and its proviso. Relying on Shri Udhav Singh v. Madhav Rao Scindia, (1977) 1 SCC 511, counsel argued that material facts constituting the cause of action must appear in the plaint; without them, no amount of evidence can cure the deficiency. The Trial Judge, it was said, erred in looking at evidence on matters not pleaded.
Non-joinder of a necessary party: The daughter of the deceased original tenant was admittedly residing with Madhuri at the time of her death. She was not impleaded. Relying on Moreshar Yadaorao Mahajan v. Vyankatesh Sitaram Bhedi, 2022 SCC OnLine SC 1307, counsel contended that without her, no effective decree could be passed and the suit was liable to dismissal.
Perversity of factual findings: Despite Ashok producing his Aadhaar Card and an electricity bill showing the suit premises as his address, the Trial Judge held that he ordinarily resided elsewhere, at 9, Belilious Road, Howrah. That finding was said to be perverse. Further, a rent receipt produced by Ashok named him, along with the son and daughter of the original tenant, as joint tenants — an admission by the landlord of his tenancy status. The Trial Judge rejected this document as manufactured, which Ashok's counsel characterised as illegal. Counsel also argued that the word “ordinarily” in Section 2(g) does not demand permanent residence, and that “dependent” should not be confined to financial dependence but includes psychological or protective dependence. Finally, counsel argued that the alternative accommodation at Belilious Road should be assessed in light of Section 6(1)(d), which limits the relevant area to within 10 kilometres of the suit premises.
How the Division Bench Reasoned
On the pleadings objection: The Bench held that there is no statutory requirement to plead separately the ingredients of Section 2(g). It is settled law that law need not be pleaded; what is required is the factual premise for invoking the provision. The plaint disclosed sufficient rudimentary facts. Both parties led evidence fully on the relevant issues without objection at trial. The Bench observed that raising a pleadings objection for the first time before an appellate court, after a full-fledged trial, renders the point “rather academic.” The reliance on Udhav Singh was also distinguished: that judgment arose in the context of an election petition where charges of corrupt and fraudulent practice required particulars under Order VI Rule 4 of the Code of Civil Procedure. The yardstick of a civil tenancy suit — preponderance of probability — is entirely different.
On financial dependence: The Bench declined to accept that “dependent” in Section 2(g) can be stretched beyond its financial context. While the Bench noted the commentary in S. P. Sengupta's book on the 1997 Act with respect, it declined to treat the author's opinion as a settled principle of law. The Bench held that the term “dependent” must be understood either by reference to categories recognised in Succession Acts such as the Hindu Succession Act, or by reference to financial support. An interpretation that severs dependence entirely from any financial element was rejected.
On the facts, Ashok admitted in his cross-examination as D.W.1 that he does business. The same fact appeared on oath in the affidavit filed in support of his written statement. The Bench found this admission fatal: “the ingredient of dependence on the spouse was not made out at all.”
On ordinary residence: The Bench accepted that “ordinarily residing” does not require permanent residence. However, it held that even on a less stringent test, some element of intention to reside at a particular place must be shown. Occasional or stray stays would not suffice. Against Ashok on this point was his own admission that he cast his last vote from 9, Belilious Road, Howrah — not the suit premises — and that all documents other than his Aadhaar Card reflected the Belilious Road address. He further admitted he had filed no document to show he was residing at the suit premises during Madhuri's lifetime. The presumption of residence raised by the Aadhaar Card and electricity bill was, the Bench held, rebuttable and was convincingly demolished by Ashok's own cross-examination.
On the 10-kilometre argument: The Bench rejected the contention that the “alternative accommodation” in the proviso to Section 2(g) must be read alongside the 10-kilometre radius in Section 6(1)(d). Section 6(1)(d) operates as a ground of eviction where a tenant holds suitable alternative accommodation within 10 kilometres. That is a distinct and different field from the alternative accommodation contemplated in Section 2(g). The Legislature did not include the 10-kilometre qualification in Section 2(g), and in the absence of any ambiguity in language, the court would not import it by analogy. The admitted residence at Belilious Road thus took Ashok outside Section 2(g) on this count independently.
On the rent receipt: The Trial Judge found that the rent receipt produced by Ashok was written at one go covering several months, including November and December 2018 and January to September 2019, without explanation. This period overlapped with months for which the landlord had produced counterfoil rent receipts issued exclusively to the original tenant — receipts whose veracity Ashok never challenged. The Bench saw no reason to reverse the Trial Judge's finding that this document lacked credibility. It was not a case where the appellate court could substitute its view merely because another view was possible.
On deposits before the Rent Controller: Ashok had deposited rent before the Rent Controller. The Bench held that such unilateral deposits create no special right or equity. The Rent Controller under the 1997 Act has no authority to adjudicate tenancy or issue a declaration of tenancy status — that jurisdiction vests exclusively in the Civil Court. There was no evidence that the landlord ever withdrew the deposits or admitted Ashok's tenancy by any overt act.
On non-joinder: The Bench accepted the legal proposition in Moreshar Yadaorao Mahajan as settled law. However, it held that the daughter was not a necessary party on the facts as framed. The daughter had herself adduced evidence in the trial court as a witness in support of Ashok. Despite participating in the proceedings with full knowledge, she never sought to implead herself, never made an independent claim of protection under Section 2(g), and never asserted any independent right as a tenant through her mother. The Bench held that the appellant could not, at this belated stage, espouse his daughter's cause on a footing independent from his own.
Outcome
FA 97 of 2026 was dismissed on contest. The Division Bench affirmed the judgment and decree dated 16 January 2026 of the learned Judge, Tenth Bench, City Civil Court at Calcutta in Title Suit No. 111 of 2022, which ordered eviction of Ashok Jaiswal from the suit premises. CAN 1 of 2026 was disposed of consequentially. No order as to costs was made. The court directed that a formal decree be drawn up accordingly.