Amiya Bala Debi vs Chitralekha Choudhurani

Purushottam Chatterjee, J.—This appeal is under Clause 15 of the Letters Patent. The Plaintiff is the Appellant. She filed a suit for ejectment of the tenant on August 12, 1948, after she had served a notice to quit. It is not necessary for our present purpose to refer to any other matter except whether the tenancy was a permanent one and whether the Plaintiff has any right to eject the Defendant. The other points have been held in favour of the Plaintiff.

The tenancy is not governed by the Bengal Tenancy Act. The purpose of tenancy is not agricultural; but we find that the purpose was other than agricultural and would include the purpose of residence therein. But there never has/been any pucca structure on the property. The original landlords are not parties to the suit. They have transferred their interest in the property to the Plaintiff. The original tenant, who was inducted into possession, is not also before us. The original tenant''s son transferred the property in 1890 and, thereafter, there has been successive transfers. It is also clear that there has been no enhancement of rent,. It is further to be observed that the deed of transfer recites as follows:

This indenture of transfer of land with Kayemi Mokarari right etc.

Kayemi Mokarari means permanent with fixity of rent. The question is whether the Defendants have been able to prove that the tenant has a permanent right therein. If the tenancy is a permanent tenure, the landlord has no right to eject by serving a notice to quit. The question whether that tenancy is permanent or not, is not a matter of fact and it is a question of law.

In my opinion, the approach to these cases with respect to properties, which are governed by the Bengal Tenancy Act, must be different from the approach that is to be made when the tenancy is not one governed by the Bengal Tenancy Act but is one which would be governed by the Transfer of Property Act. Various tests have been laid down as to determine under what circumstances the tenancy is to be considered to be of a permanent nature and when not. So far as the test relating to pucca structure, there has been no pucca structure and, therefore, that question does not arise in this case.

The next question is'' relating to enhancement of rent. It has been held in some cases that, if rent had not been enhanced for a long series of years, that may be considered to be some evidence of a permanent tenure. With regard to the cases which are governed by the Bengal Tenancy Act, that would certainly be of some effect, because there are provisions in the Bengal Tenancy Act which provide for the enhancement of rent. Therefore, if a landlord has not chosen to enhance rent for a long series of years, it may be considered that the landlord treated the tenant as one whose rent could never be enhanced. But, under the Transfer of Property Act there is no provision for enhancement of rent. The Transfer of Property Act came into force in 1882, and the first document relating to the tenancy in question is a deed of transfer. That deed of transfer is dated 1890. All that we get is that from 1890 to the date of institution of the suit in 1948 there was no enhancement of rent. But we must remember that there could not have been any enhancement of rent under the Transfer of Property Act, but there might have been enhancement had it been governed by the Bengal Tenancy Act�it is not governed by the Bengal Tenancy Act. Therefore, the fact that rent has not been enhanced is consistent with the provision of the Transfer of Property Act, it might also be consistent with some agreement between the landlord and the tenant not to enhance rent.

In some cases it has been considered that a test is whether there has been succession or not, this is another important factor in considering whether the tenancy is permanent one or not. Under the Bengal Tenancy Act there were provisions by which every heir of a tenant would not be recognised by the landlord as a tenant unless the landlord chose, to do so and in that case some fee had to be paid to the landlord and practically a new tenancy would be deemed to be created after such recognition which went by the name of mutation, and if the landlord has recognised the transfer without realizing fees, it might have been considered that the landlord treated the tenancy as heritable and tenancies were not ordinarily heritable under the Bengal Tenancy Act in the 19th Century. But the Transfer of Property Act does not provide for the same; on the other hand, Section 108 of the Transfer of Property Act gives right to the heirs and legal representatives. Properties under the Transfer of Property Act are. considered heritable. Therefore, if the original tenant''s son inherited, it might have been so because of the provisions of the Transfer of Property Act or because of a contract between the original landlord and the original tenant that the tenancy would be heritable. This leads us to the date of inheritance. We find from the relevant document that there was a case of succession before 1890 because the recital is that the transferor got the property on the demise of his father. But, there is no evidence to show whether the father died after the Act came into force or before the Act came into force. There is a pretty long period intervening a span of eight years; it has not been possible for any of the Courts to say what was the date of death of the original tenant and when his son succeeded to the property. The lower Appellate Court presumed that, as the transfer took place in 1890, the tenancy must have originated before 1882. We shall come to that matter later on; but we do not get anything from the records regarding the date of death of the father of the transferor in Ex. B. Therefore, the case of the succession that has been referred to in Ex. B is one which might have occurred because of the provisions of the Transfer of Property Act or independently of it, that is, because of a contract between the parties that the tenancy would be permanent and heritable succession after the Transfer of Property Act may be due either because of the provisions of the Transfer of Property Act or because of a contract between the parties. Hence, the fact that there has been succession and the landlord has recognised succession does not unmistakably and un-equivocally show that the tenancy was heritable by contract between the parties.

Finally, the question is what was the date of the lease. We have no evidence about that. The earliest document is dated 1890 and the lease was granted in favour of the transferor''s father prior to 1890. This is no unmistakable evidence to show that the lease was granted before the Transfer of Property Act. It may be that the lease was granted in 1883 and the father died in 1889 ; it may be otherwise as well. The net result of consideration of all these matters is that the rent has not been enhanced from 1890 till 1948. But that might have been due either because there was such an agreement between the original landlord and the original tenant or because there was no provision in the Transfer of Property Act for enhancement of rent. We also get that there have been cases of inheritance ; but these cases of inheritance might occur because inheritance is recognised under the Transfer of Property Act or because there was a contract between the original landlord and the original tenant that the tenancy would be heritable. It is needless to say that mere possession on payment of rent does not prove anything at all.

The last matter to be considered is, there is the assertion in this document that the tenancy that was transferred was with kayemi mokarari, a permanent tenancy with a fixity of rent. But that statement was made by a tenant who transferred his property to another, in such circumstances it may not be possible that the tenant asserted his right to be much higher than that it really was, in order to get better price. Even though there is a statement that the tenancy is a kayemi mokarari one, in the preamble the agendum clauses do not refer to any such term at all nor even the documents recite what were the terms under which the lease was granted. A mere recital would not show that the statement of the tenant, possibly to get a higher price, was a correct statement of the affairs. There is another factor which need be considered, is that there is no document which served the purpose of a lease. Ordinarily, the mokarari tenancies have been known in the Zemindary sheristas in our country from long before the British came. The documents were given with some seal or with some marks which are called Charpatras or Amalnama Or things like that. But rarely a permanent lease with a fixity of rent is created orally. Whoever takes a permanent lease at a fixed rent has to pay a high premium to the landlord and he would ordinarily protect himself against the heirs and successors of the landlord and he can protect himself only by a document. There is no reference of any document whatsoever in the earliest deed. Besides, the law of registration has been in force in our country from the date of the Bengal Regulations; the first one was Reg. 36 of 1793. Thereafter, the Registration Act came into force for the first time in 1843, but a section similar to Section 17 of the Indian Act as it stood has been in force at least from 1864. There is no registered document and there is no reference of any document. We have been referred to a decision in Shankarrao Dagadujirao v. Sambhu Walled Nathu Patil (1940) 45 C.W.N. 57, a decision of the Judicial Committee, where the Judicial Committee observed that the inference of a permanence requires the presence of circumstances explicable, when taken as a whole, only on the hypothesis of permanence.

In this case, as we have considered, the circumstances which have been referred to, namely, inheritance, transfer and non-enhancement may be due either because of the provisions of the Transfer of Property Act or because of the agreement between the parties. We have been referred to another decision between Bejoy Gopal Mukherji Vs. Pratul Chandra Ghose, . There the Supreme Court also considered that all circumstances put together should irresistibly lead to the conclusion of a permanent tenancy. We do not think that there is such circumstance which put together would irresistibly lead to that conclusion, because the circumstances may be explained either way; they are unequivocal, there is no pucca structure, the tenancy did not begin at a date very much earlier, to 1890, because the first tenant was the father of the transferor referred to in the kobala 1890. At that time the law of registration was, well-established. A man, who would pay good premium, would not be satisfied by a mere oral grant as that grant might not be proved to the successors of the zemindars who may not accept the oral statements of the tenant. We would ordinarily have expected a document and, therefore, a registered document at that time. But there is none. The fact of succession, the fact of non-enhancement of rent arid the fact of continuity of possession may be due either because of the landlord''s acts or because of the law then in force.

We must, therefore, set aside the judgment of the Courts below and restore the judgment of the trial Court.

The result is that the appeal is allowed and the suit is decreed.

But each party will bear his costs throughout.

A.C. Gupta, J.

I agree.