Ram Kumar Das Vs. Jagadish Chandra Deb
Dhabal Deb& ANR [1951] INSC 53 (26 November 1951)
MUKHERJEA, B.K.
SASTRI, M. PATANJALI (CJ) DAS, SUDHI RANJAN
BOSE, VIVIAN
CITATION: 1952 AIR 23 1952 SCR 269
CITATOR INFO :
D 1968 SC 794 (8) E&D 1977 SC2425 (4) RF
1980 SC 226 (11,14,15)
ACT:
Transfer of Property Act (IV of 1882), ss.
106, 107--Duration of lease--Presumption--Kabuliyat for 10 years--Payment of
annual rent for two years only--Kabuliyat inoperative--Nature of possession after
the two years --Whether adverse, as tenant from year to year, or as monthly
tenant--Applicability of s. 106 to implied tenancies--Presumption from payment
of annual rent.
HEADNOTE:
The rule of construction embodied in s. 106
of the Transfer Property Act applies not only to express leases of uncertain
duration but also to leases implied by law which may be inferred from
possession and acceptance of rent and other circumstances.
270 The contract to the contrary contemplated
by the said section need not be an express contract; it may be implied, but it
should be a valid contract. If the contract is invalid the section will
regulate the duration of the lease.
When the rent reserved is an annual rent, a
presumption would arise that the tenancy was an annual tenancy unless there is
something to rebut this presumption. But under s. 107 of the Transfer of
Property Act a tenancy from year to year or reserving an yearly rent can be
made only by a registered instrument.
The defendant executed a registered kabuliyat
to the Receiver who was managing an estate pending a suit, purporting to take a
plot of land on lease for a period of ten years at a rental of Rs. 46 per annum
and paid the first year's rent of Rs. 46 on the 8th March, 1925, and the next
year's rent on the 16th March, 1926. No further rent was paid by the defendant
to the Receiver or to the proprietor after that date. The proprietor, treating
the defendant as a monthly tenant served notice to quit on him on the 18th July, 1942, asking the latter to vacate on the 7th August, 1942, and instituted a suit for ejectment in July, 1943. The kabuliyat was found to be inoperative in
law and the defendant contended that the payment and acceptance of annual rent
in 1925 and 1926 did not create a monthly tenancy but two tenancies for one
year each for two successive years, that the relation of landlord and tenant
came to an end on the expiration of the second annual lease, and, as there was
no holding over, the suit was time-barred:
Held (i) that from the facts a tenancy could
be presumed to have come into existence from 1924; (ii} as the purpose of the
tenancy was for building structures on the land, under sec. 106 of the Transfer
of Property Act the tenancy must be presumed to be one from month to month in
the absence of a contract to the contrary; (iii) a contract that the tenancy
was for one year certain could not be inferred in the present case from the
fact that an annual rent was paid in 1925 and 1926, inasmuch as the kabuliyat,
though inoperative in law, showed that the parties never intended to create a
lease for one year; (iv) on the facts of the case it was quite proper to hold
that the tenancy was one from month to month since its inception in 1924 and
the suit was not time-barred.
Debendra Nath v. Shyama Prasanna (11 C.W.N.
1124) and Sheikh Akloo v. Emaman (I.L.R. 44 Cal. 403) approved.
Aziz Abroad v. Alauddin Abroad (A.I.R. 1933
Pat. 485), Md. Moosa v. Jaganand (20 I.C. 715) and Matilal v. Darjeeling Municipality (17 C.L.J. 167) referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 114 of 1950. Appeal from a judgment and decree of the High Court of Patna
(Shearer and Reuben JJ.) dated 5th November, 1948, in Appeal No. 2064 of 1946,
271 which arose out of a decree of the District Judge of Purulia in Title
Appeal No. 116 of 1945. The facts are stated fully in the judgment.
M.C. Setalvad, Attorney-General for India,
(Nandial Untwalia, with him) for the appellant.
B. C. De (Jyotirmoy Ghose, with him) for the
respondent.
1951. November26. The Judgment of the Court
was delivered by MUKHERJEA J.---This appeal is on behalf of the defendant and
it arises out of a suit commenced by the plaintiff respondent, in the Court of
the Subordinate Judge at Chaibassa, for recovery of possession of the land
described in schedule to the plaint, on the allegation that the defendant was a
monthly tenant in respect of the same, and that the tenancy was determined by a
notice to quit. The suit was decreed by the trial court and the decision was
affirmed, on appeal, by the District Judge, Purulia, and on Second Appeal, by a
Division Bench of the High Court of Patna. The defendant has now come up to
this court on the strength of a certificate granted under section 110, Civil
Procedure Code.
Mr. Setalvad, appearing on behalf of the
defendantappellant, stated to us at the outset that he would not dispute the
validity or sufficiency of the notice to quit served upon his client, if on the
facts of this case he is held to be a monthly tenant under the plaintiff in
respect of the premises in suit. His contention, in substance, is that the
defendant was at no point of time a monthly tenant under the plaintiff or his
predecessor. There might have been, according to the learned Counsel, two
tenancies for one year each for two successive periods, but on the expiry of
the second yearly lease, which happened on 7th December, 1926, the defendant
ceased to be a tenant and no fresh tenancy was created by holding over as is
contemplated by section 116 of the Transfer of Property Act. As there was no
holding over, there could not be any question of a monthly tenancy being
brought into existence 272 under the provision of section 116 of the Transfer
of Property Act, and the present suit of the plaintiff having been admittedly
brought more than 12 years after the determination of the second yearly lease,
is barred by limitation under Article 139 of the Indian Limitation Act. The
whole controversy in this appeal thus centres round the point as to whether the
defendant was in fact a monthly tenant under the plaintiff at the date when the
notice to quit was served upon him. To appreciate the respective contentions
that have been put forward upon this point by the learned Counsel on both
sides, it will be necessary to narrate briefly the material facts in their
chronological order.
The property in suit is a plot of land,
measuring 4 bighas 12 cuttas, and is comprised in old Survey plot No.
578 of village Jugselai in the district of
Singhbhum. The entire village forms part of the Dhalbhum estate, of which the
plaintiff is admittedly the present proprietor. One Charan Bhumiji was the
" Prodhan" of village Jugselai from some time before 1913 and on 24th
July, 1913, the father of the defendant, by a registered Patta, took a lease of
about :31 bighas of land appertaining to Survey plot No. 573 from this Prodhan
for purposes of cultivation. It is not disputed that the property in suit is
covered by this Patta. At that time the proprietor of the Dhalbhum estate was
Raja Satrughna and he died in 1916, leaving behind him a will by which the
entire estate was bequeathed to the present plaintiff. The plaintiff's claim
under the will was challenged by one Partap Chandra Deo Dhabal who succeeded in
getting his name recorded as proprietor of the zemindari in the Singhbhum
Collectorate. Thereupon the plaintiff instituted a suit (being Title Suit No.
67 of 1921) in the Court of the Subordinate Judge at Midnapore for
establishment of his title to the zemindari and the suit was decreed by the
trial Judge. Against this decision, the defendant Pratap Chandra Deo Dhabal
took an appeal to the High Court of Calcutta and during the pendency of this
appeal, the High Court appointed a Receiver who was put in 273 possession of
the entire estate. On 8th December, 1924, the defendant executed a registered
Kabuliyat in favour of the Receiver, by which he purported to take settlement
of the land in suit for a period of 10 years at a rental of Rs. 46 per annum
and a selami of Rs. 250. There was a covenant in the lease, which looks like
one for perpetual renewal, and it was to the effect that on the expiry of the
term, if the lessor did not require the land for his own purposes and decided
to re-settle it, the lessee would be entitled to fresh settlement on enhanced,rent
and on such terms as might be then agreed upon between the parties. It appears
from the record that the selami money, amounting to Rs. 250, was paid by the
defendant to the Receiver several months before the Kabuliyat was executed, and
the rental amounting to Rs. 46 was paid for the first time on 8th of March,
1925. The next payment of rent was made in the succeeding year, on 16th of
March, 1926. Admittedly, no further payment of rent was made by the lessee
either to the Receiver or to the proprietor since then, up to this period. The
High Court dismissed the appeal preferred by Pratap Chandra Deo Dhabal sometime
in 1924 and this order of dismissal was affirmed by the Judicial Committee in
May 1927. The Receiver was then discharged and the plaintiff got possession of
the entire estate in July 1927. On April 15, 1937, the plaintiff brought a suit
for ejectment (being Title Suit No. 2 of 1937) against the defendant in respect
of this property in the Court of the Subordinate Judge at Chaibassa. The claim
was based substantially upon the terms of the Kabuliyat executed by the
defendant on 24th of December, 1924, and the suit was, in fact, one for
ejectment of a lessee on the expiration of the period provided for in the
lease. It was only the renewal clause in the Kabuliyat that was challenged as
invalid and inoperative, not only because it was vague and indefinite but also
on the ground that the Receiver acted beyond his authority in entering into a
stipulation of this character.
36 274 The defendant in his written statement
resisted the plaintiff's claim for possession primarily on the ground that he
had acquired permanent rights in the land under the Prodhan's Patta of 1913 and
continuous occupation of it since then for more than 12 years. The Kabuliyat of
1924, he attempted to ignore altogether. It was said that it was executed only
to avoid trouble and harassment at the hands of the Receiver and that, being
inoperative as a lease, it could not, in any view, affect the prior rights
which he acquired under the Patta of 1913.
The trial judge decreed the suit. On appeal,
the judgment was reversed by the District Judge and the plaintiff's suit was
dismissed simply on the ground that the notice to quit that was served on the
defendant was ineffectual in law to determine the tenancy. The District Judge
found, first of all, that the Prodhan's Patta was void and inoperative in law
and could not create any rights in the defendant, inasmuch as the Prodhan had
no authority to settle lands of this character. The Kabuliyat of 1924 was also
held to be ineffectual as not amounting to a lease as defined by the Transfer
of Property Act. It was held, however, by the District Judge that apart from
the Kabuliyat, a tenancy was created by payment and acceptance of rent in the
years 1925 and 1926 and after 1926 the defendant occupied the position of a
monthly tenant by holding over under section 116 of the Transfer of Property
Act. Such tenancy could be determined by fifteen days' notice, expiring with
the month of tenancy, but as the notice, which was served by the plaintiff upon
the defendant, did not fulfil this requirement, the plaintiff's suit was bound
to fail. The District Judge, though he dismissed the suit, gave the plaintiff a
declaration to the effect that the defendant was liable to eviction on service
of fifteen days' notice, expiring with the end of the Bengali month of the
tenancy. Against this decision, the plaintiff took an appeal to the High Court
of Patna, and the appeal came up for hearing before Harries C.J. and Fazl Ali
J. The learned Judges affirmed the finding of the lower appellate court that
275 the Prodhan's Patta did not create any rights in the defendant and that the
Kabuliyat of 1924 was also ineffectual as a lease to give the defendant any
tenancy right. The learned Judges further held that the defendant did not
acquire any permanent right in the land by prescription or otherwise and that
by reason of the payment of rent to the Receiver in the years 1925 and 1926 he
became a tenant from month to month. In these circumstances the High Court concurred
with the District Judge in holding that the notice to quit was insufficient for
the purpose of determining the tenancy. It seems that the defendant made a
strenuous endeavour before the High Court to establish that as the Patta of
1913 as well as the Kabuliyat of 1924 were both invalid and inoperative, he was
never a tenant in respect of the land in suit and no tenancy could be created
by the two payments of rent, inasmuch as the Receiver had no authority to
receive them. It was contended, therefore, that the plaintiff was in possession
of the land as a trespasser all along and thus acquired a good title by adverse
possession.
The High Court, though it held definitely
that the defendant was a tenant from month to month, nevertheless kept open the
question as to whether the payment of rent to the Receiver was tantamount to
payment to the plaintiff. It was held that as the notice to quit was defective,
that was sufficient for dismissal of the suit, and the declaration made in the
decree of the lower appellate court that the defendant was liable to be evicted
on service of fifteen days' notice, expiring with the Bengali month of the
tenancy, was directed to be deleted. This judgment of the High Court was pronounced
on the 5th of May, 1942.
Soon after this on 18th July, 1942, the
plaintiff served a notice to quit on the defendant, asking him to vacate the
land on the 7th of August following, and as the defendant refused to give up
possession, the present suit was brought on 22nd July, 1943. The plaint in the
present suit is a very simple one;it proceeds entirely on the findings recorded
by the High Court in the previous litigation. The right to 276 possession is
not based on the terms of the Kabuliyat of 1024. The plaintiff avers that by
reason of the payment of rent on 8th March, 1925, and 16th March, 1926 the
defendant became a tenant from month to month under him and the tenancy was
determined by a proper notice to quit.
The defendant in his written statement raised
several pleas in answer to the plaintiff's claim. He reiterated his rights
under the Patta of 1913 and urged that by reason of his holding possession of
the land on assertion of a permanent tenancy right for a long period of time,
he acquired a valid title to the property. As regards the Kabuliyat of 1924, it
is said in one part of the written statement that the defendant executed this
document under misapprehension of facts without knowing the contents thereof.
But at another place it is stated that the Kabuliyat was binding on the
plaintiff and he was not entitled to institute a suit in contravention of its
terms, without in any event refunding the selami money. The defendant admitted,
what he denied in the earlier suit, that the payments made to the Receiver
amounted to payments to the plaintiff himself, although this question was left
open by the High Court on the previous occasion. The other pleas raised in the
written statement are not material, except that a specific point was taken,
challenging the sufficiency of the notice to quit that was served upon the
defendant.
On these pleadings a number of issues were
framed. The trial judge held on a consideration of the materials placed before
him that the Prodhan's Patta was a void and inoperative document and conferred
no rights on the defendant. He negatived the case, which the defendant
attempted to make in course of hearing, that the Kabuliyat executed by him was
obtained by threat and coercion. It was held by the Subordinate Judge in
accordance with the decisions of the Patna High Court on the point that the
Kabuliyat could not operate as a lease under the Transfer of Property Act, and
consequently the defendant did not acquire the rights of a lessee under the same.
He held, however, 277 that by payment and acceptance of rent a new tenancy was
created de hors the Kabuliyat, and as the new tenancy was for building
purposes, it. was a tenancy from month to month under section 106 Transfer of
Property Act, terminable by fifteen days notice. As the notice was proper and,
sufficient, the trial judge decreed the plaintiff's suit.
Against this judgment, the defendant took an
appeal to the court of the District Judge, Purulia, and the District Judge
dismissed the appeal and affirmed the judgment of the trial court. It appears
that two points were raised by the defendant before the District Judge in
support of his appeal: one was that the Kabuliyat of 1924 was effective as a
lease and consequently the defendant could not be ejected in contravention of
the terms thereof. At the same time it was contended that there was no tenancy
at all held by the defendant under the plaintiff, inasmuch as the payments made
to the Receiver could not be regarded as payments to the plaintiff. The first
point, the District Judge pointed out, was contrary to the express decisions of
the Patna High Court, while the second was contradictory to the defendant's own
admission in the written statement.
The defendant then came up in Second Appeal
before the High Court of Patna and the appeal was heard by a Division Bench,
consisting of Shearer and Reuben JJ. The learned Judges agreed in dismissing
the appeal and affirming the decree made by the courts below, but the grounds
upon which they based their decision are not identical. As regards the nature
of the tenancy created by implication of law in consequence of the Receiver
having accepted payment of rent from the defendant, it was held by Reuben J.
that when the Receiver accepted rent in 1925, it should be presumed that the
parties intended to create a tenancy for one year and when he accepted rent
again in 1926, such acceptance amounted to his assenting to the defendant's
holding over; and in view of the purpose for which the tenancy was created, the
defendant from that time became a tenant from 278 month to month under the
provision of section 116, Transfer of Property Act. Shearer, J., felt
difficulty in accepting this view though in his opinion if a periodic tenancy
was created at all, it was from month to month and not from year to year. There
are observations, however, in the latter part of the judgment of Shearer, J.,
which would go to show that in his opinion the creation of two leases, each for
one year, could be fairly gathered from the admitted facts of the case. The
learned Judge was not sure, however, as to whether the defendant ever became a
tenant of the plaintiff.
He discussed the nature of the renewal clause
contained in the Kabuliyat and held it to be void for uncertainty. He also
negatived the defendant's plea on the strength of adverse possession. His
conclusion was that whatever view might be taken regarding these points, the
defendant had no valid defence to the plaintiff's claim for eviction and
consequently the decision of the courts below was right. It is the propriety of
this decision that has been challenged before us in this appeal.
Mr. Setalvad, in support of his client's
case, has not called in aid the Prodhan's Patta of 1913; nor has he placed any
reliance upon the Kabuliyat of 1924 and the covenant for renewal contained
therein. He has not disputed before us that the payments made to the Receiver
were in reality payments to the plaintiffs, and has conceded that a tenancy
could be created by implication by reason of his client having paid and the
Receiver having accepted rents in respect of the suit premises. His contention,
as indicated already, is that by reason of the payment and acceptance of rent,
there were two tenancies for one year each, created for two successive years;
but the relationship of landlord and tenant between the parties came to an end
on the expiration of the second annual lease. As there was no holding over by
the defendant since then as contemplated by section 116, Transfer of Property
Act, there was no subsisting tenancy at any time after December, 1926, and the
plaintiff's suit instituted in the year 1943 was obviously time barred.
279 Mr. De, appearing for the
plaintiff-respondent, has, on the other hand, contended that the tenancy that
was created by payment and acceptance of rent in the year 1925 was from the
beginning a tenancy from month to month under the provision of section 106.
Transfer of Property Act. Alternatively, he has argued that if a tenancy for
one year only was created in the year 1925, then after the expiration of that
one year's lease the defendant held over and the Receiver's assent to his
continuing in possession is evidenced by acceptance of rent from him in the
year 1926. The tenancy thus created would be a tenancy from month to month
under section 116, Transfer of Property Act.
Lastly, it is argued that even if two
successive tenancies were created for one year each, the facts admitted and
proved would go to show that the tenant held over after the second annual lease
and consequently a tenancy from month to month came into existence in
accordance with the provision of section 116, Transfer of Property Act, even
though no rent was demanded by the landlord after 1926. The controversy between
the parties so far as this appeal is concerned, therefore, narrows down to the
following three points :-(1) What was the nature of the tenancy created by acceptance
of rent by the Receiver from the defendant on the 8th of March, 1925 ? If it
was a tenancy from month to month, it is not disputed on behalf of the
defendant that no question of holding over would at all arise and the plaintiff
would be entitled to succeed.
(2) If in 1925 a tenancy was created for one
year, can the landlord's assent to the defendant's continuing in possession be
inferred from the fact that rent was accepted from the defendant in March, 1926
? (3) If the payment and acceptance of rent in March, 1926, brought into
existence a tenancy for another year, was there any subsequent tenancy created
after the second year, although there was no ,demand or acceptance of rent by
the landlord since then ? 280 So far as the first point is concerned, the
courts below have proceeded on the view that a registered instrument signed by
the landlord was necessary to create. a valid lease for ten years. That view
was not questioned before us and we express no opinion on this point.
Proceeding, therefore, on the assumption that even though the parties might
have intended to create a lease for 10 years, no operative ]ease came into
existence, the only facts admitted are that the defendant remained in
possession of the land belonging to the plaintiff with the permission of the
Receiver who represented the plaintiff's estate, and paid rent to the latter. From
these facts a tenancy could be fairly presumed and the point for determination
is, what was the duration of the tenancy that was created in the present case?
Section 106 of the Transfer of Property Act lays down:
"In the absence of a contract or local
law or usage to the contrary a lease of immovable property for agricultural or
manufacturing purposes shall be deemed to be a lease from year to year,
terminable, on the part of either lessor or lessee, by six months' notice
expiring with the end of a year of the tenancy; and a lease of immovable
property for any other purpose shall be deemed to be a lease from month to
month, terminable, on the part of either lessor or lessee, by fifteen days'
notice expiring with the end of a month of tenancy." The section lays down
a rule of construction which is to be applied when there is no period agreed
upon between the parties. In such cases the duration has to be determined by
reference to the object or purpose for which the tenancy is created. The rule
of construction embodied in this section applies not only to express leases of
uncertain duration but also to leases implied by law which may be inferred from
possession and acceptance of rent and other circumstances. It is conceded that
in the case before us the tenancy was not for manufacturing or agricultural
purposes.
The object was to enable the lessee to build
structures upon the land. In these circumstances, it could be 281 regarded as a
tenancy from month to month. unless there was a contract to the contrary. The
question now is, whether there was a contract to the contrary in the present
case ? Mr. Setalvad relies very strongly upon the fact that the rent paid here
was an annual rent and he argues that from this fact it can fairly be inferred
that the agreement between the parties was certainly not to create a monthly
tenancy. It is not disputed that the contract to the contrary, as contemplated
by section 106 of the Transfer of.
Property Act, need not be an express
contract; it may be implied, but it certainly should be a valid contract. If it
is no contract in law, the section will be operative and regulate the duration
of the lease. It has no doubt been recognised in several cases that the mode in
which a rent is expressed to be payable affords a presumption that the tenancy
is of a character corresponding there to. Consequently, when the rent reserved
is an annual rent, the presumption would arise that the tenancy was an annual
tenancy unless there is something to rebut the presumption.
But the difficulty in applying this rule to
the present case arises from the fact that a tenancy from year to year or
reserving a yearly rent can be made only by registered instrument, as laid down
in section 107 of the Transfer of Property Act(1). The Kabuliyat in the case
before us is undoubtedly a registered instrument, but ex-concessis it is not an
operative document at all and cannot consequently fulfil the requirements of
section 107 of the Transfer of Property Act.
This position in fact is not seriously controverted
by Mr. Setalvad; but what he argues is that a lease for one year certain might
fairly be inferred from the payment of annual rent, and a stipulation like that
would not come within the mischief of section 107 of the Transfer of Property
Act. His contention is that the payment of an annual rent, as was made in the
present case, is totally inconsistent with a monthly lease. We are not
unmindful of the fact that in (1) Vide Debendra Nath v. Syama Prasanna, 11
C.W.N. 1124, 1126 37 282 certain reported cases, such inference has been drawn.
One such case has been referred to by Mr.Justice Reuben in his judgment(1),
where reliance was placed upon an earlier decision of the Calcutta High Court(3).
A similar view seems to have been taken also in Matilal v. Darjeeling
Municipality(3).
But one serious objection to this view seems
to be that this would amount to making a new contract for the parties.
The parties here certainly did not intend to
create a lease for one year. The lease was intended to be for a period
exceeding one year, but as the intention was not expressed in the proper legal
form, it could not be given effect to. It is one thing to say that in the
absence of a valid agreement, the rights of the parties would be regulated by
law in the same manner as if no agreement existed at all; it is quite another
thing to substitute a new agreement for the parties which is palpably
contradicted by the admitted facts of the case.
It would be pertinent to point out in tiffs
connection that in the Second Appeal preferred by the plaintiff against the
dismissal of his earlier suit by the lower appellate court, the High Court
definitely held that the defendant's tenancy was one from month to month under
section 106, Transfer of Property Act, and the only question left open was
whether payment to the Receiver amounted to payment to the plaintiff himself.
In this suit the defendant admitted in his written statement that payment to
the Receiver had the same effect as payment to the plaintiff, and the trial judge
took the same view as was taken by the High Court on the previous occasion,
that by payment to and acceptance of rent by the Receiver, the defendant became
a monthly tenant under section 106, Transfer of Property Act. In his appeal
before the District Judge, which was the last court of facts, the only ground
upon which the defendant sought to challenge this finding of the trial judge
was that the Receiver was an unauthorised person because of the 'decision of
(1) Aziz Ahmad v. Alauddin Ahmad, A.I.R. 1933 Pat. 485.
(2) Md. Moosa v. Jaganund 20 I.C. 715 (3) 17
C.L.J. 167.
283 the Judicial Committee which set aside
his appointment and consequently acceptance of rent by such person could not
create a monthly tenancy. This shows that it was not the case of the defendant
at any stage of this suit that because one year's rent was paid, a tenancy for
one year was brought into existence. We think, therefore, that on the facts of
this case it would be quite proper to hold that the tenancy of the defendant
was one from month to month since its inception in 1924. This view finds
support from a number of reported cases(1), and in all these cases the rent
payable was a yearly rental. On this finding no other question would arise and
as the validity of the notice has not been questioned before us, the plaintiff
would be entitled to a decree in his favour. The appeal thus fails and is
dismissed with costs.
Appeal dismissed.
Agent for the appellant: R.C. Prasad.
Agent for the respondents: S.P. Varma, Vide
Debendra Nath v. Syama Prasanna, 11 C.W.N. 1124;
Sheikh Akloo v. Emaman, I.L.R. 44 Cal. 403.
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