Amulya Kumar Sur vs Prosanta Kumar Sur

M.M. Dutt, J.—This appeal is at the instance of the Defendant No. 1 and it arises out of a suit for partition and khas possession.

The property in suit is a tract of land known as ''Ghoshaler abad'' comprising within it a jalkar. The Plaintiff, since deceased the predecessor-in-interest of the Respondents Nos. 1(1) to 1(7) and the Defendants were co-sharers of the suit property in mourasi mokurari right. The Defendant No. 1 has 10 annas share equivalent to 5/24th share and the Respondents including the Respondents Nos. 1(1) to 1(7) have 6 annas share equivalent to 9/24th share in the suit property. Out of the 9/24th share, the Plaintiff had 4/24th share. The 6 annas or the 9/24th co-sharers including the Plaintiff granted a dar mourasi mokurari lease to the Defendant No. 1 by an unregistered agreement to lease dated March 29, 1936, at an annual rent of Rs. 846-15-2. Out of the amount of rent the Defendant No. 1 was to pay a sum of Rs. 171-15-2 to the superior landlords and pay the balance sum of Rs. 675 to the 6 annas co-sharers including the Plaintiff in proportion to their respective shares. Clause 12 of the agreement to lease, inter alia, provided that in case of default of payment of rent for three consecutive years the lease would stand cancelled and the lessors would have the right of re-entry. It is not disputed that the Defendant No. 1 has been in possession of the whole of the suit property, namely 6 annas share thereof by virtue of the said agreement to lease as a dar mourasi mokurari tenant and 10 annas share thereof belonging to him in mourasi mokurari right. During the pendency of the dar mourasi mokurari lease in favour of the Defendant No. 1, the Plaintiff purchased 1/24th share of the Defendants Nos. 3 to 6 by a registered kobala dated September 7, 1949. After such purchase, the Plaintiff''s share became 5/24th in the mourasi mokurari interest. It was alleged by the Plaintiff that the Defendant No. 1 defaulted to pay rent to him in respect of his share for three consecutive years, namely, from 1354 B.S. to 1357 B.S. and that, accordingly, he was entitled to treat the lease as cancelled and to take possession of his share in the mokurari mourasi interest along with the other co-sharers having 4/24th share by virtue of Clause 12 of the agreement to lease providing for the right of re entry of the lessors in case of failure of the lessee to pay rent for three consecutive years. The Plaintiff by letter of his lawyer dated October 22, 1954, demanded khas possession of his 5-24th share from the Defendant No. 1. It was contained by the Plaintiff that the lease in favour of the Defendant No. 1 was void and that, in any event, it stood extinguished on the failure of the Defendant No. 1 to pay rent for three consecutive years. It was further contended that he was entitled to treat the lease as non-existent and to take khas possession of his 5/24th share in the suit property on partition with the remaining Defendants. On the aforesaid allegations, the Plaintiff instituted the suit for khas possession of his share in the suit property on partition by metes and bounds, treating the lease of the Defendant No. 1 as inoperative and void.

The Appellant Defendant No. 1 alone contested the suit. His defence was that the dar mourasi mokurari lease in his favour was quite legal and valid. The terms of the lease were affirmed by the parties in a joint petition of compromise filed in Rent Suit No. 16 of 1942 of the Fourth Court of the Subordinate Judge at Alipore. It was contended that the Plaintiff having instituted suit for rent on the basis of the lease and that, having realised the amounts decreed in such suits, he was precluded from avoiding the lease. Further, his contention was that even assuming that the Plaintiff had the right of re-entry, the said right was not exercised in accordance with law. It was submitted by him that the suit for eviction on the ground of non-payment of rent could be avoided by payment of rent and as such, the suit was not maintainable. He was also ready and willing to pay the amount as would be directed by the Court. By an additional written statement it was contended by him that the interest of the Plaintiff in the suit property having vested in the State of West Bengal under the provisions of the West Bengal Estates Acquisition Act, 1953, his claim for partition was barred and the suit was not maintainable.

The learned Subordinate Judge came to the findings that the lease in favour of the Plaintiff not having been registered was invalid and inoperative in law. He overruled the contention of the Defendant No. 1 advanced at the hearing of the suit that his possession was protected by the doctrine of part performance of contract as embodied in Section 53A of the Transfer of Property Act. It was held by the learned Subordinate Judge that, in view of Clause 12 in the agreement to lease, the Plaintiff was entitled to re-enter and get khas possession of his share in the suit property on partition thereof by metes and bounds. The lawyer''s notice dated October 22, 1954, was held by him to be a valid exercise of option of re-entry by the Plaintiff. Upon the said findings he decreed the suit in a preliminary form. Hence, this appeal by the Defendant No. 1.

Mr. N.C. Chakrabortti, the learned Advocate appearing on behalf of the Defendant No. 1 Appellant has strenuously urged that the interest of the Plaintiff in the suit property having vested in the State of West Bengal under the provisions of the West Bengal Estates Acquisition Act, 1953, the suit was not maintainable at his instance. There can be no doubt that the party who alleges the vesting of the interest of the other party and the non-maintainability of the suit on that ground the onus lies on him to prove the same. It is contended on behalf of the Appellant that as the Plaintiff had only the rent-receiving interest, he was an intermediary within the maning of the definition of the term u/s 2(1) of the West Bengal Estates Acquisition Act. u/s 2(1) ''intermediary'' means a proprietor, tenure-holder, under-tenure-holder or any other intermediary above a raiyat or a non-agricultural tenant and includes a service tenure-holder and in relation to mines and minerals, includes a lessee and a sub-lessee. It thus appears from the definition that a non-agricultural tenant is not an intermediary. The term ''non-agricultural tenant'' has been defined in Section 2(k) of the said Act as meaning a tenant of non-agricultural land who holds under a proprietor, a tenure-holder, a service tenure-holder or an under-tenure-holder, is a non-agricultural tenant.

In para. 5 of the written statement it has been categorically stated by the Defendant No. 1 that the property in suit is a jalkar for a long time. It is also not disputed before us on behalf of the Appellant that the suit property was a jalkar on the date of vesting under the said Act and is being used as such. There can be no doubt that ordinarily land comprised in a jalkar is non-agricultural unless it is included in the agricultural holding and used for agricultural purposes. It is not the case, of the Appellant that the property in suit which is a jalkar was ever used for agricultural purposes; on, the other hand, it is the contention of both parties that it is a jalkar from long before the date of vesting. In these circumstances, it must be held that the property in suit is non-agricultural in character. The Plaintiff and his cosharers were lessees in mourasi mokurari right in respect of the suit property, holding under the proprietor thereof. In the absence of any other evidence, prima facie it appears that the Respondents Nos. 1(1) to 1(7) who are the legal representatives of the Plaintiff and their co-sharers are non-agricultural tenants in respect of the suit property.

It is, however, contended by Mr. Chakrabortti that a non-agricultural tenant who was not in actual possession of the non-agricultural land comprised within the tenancy on the date of vesting, is also ah intermediary. We are unable to accept this contention. The definition of the term referred to above does not provide that the non-agricultural tenant must also be in actual possession. As soon as it is found that a person is a non-agricultural tenant in respect of the land, he goes out of the mischief of the Act, notwithstanding the fact that he was not in actual possession and had different grades of tenants under him on the date of vesting. In this connection, we may refer to a decision of the Supreme Court in Shibsankar Nandy Vs. Prabartak Sangha and Others, . In that case, one of the questions that came up for consideration before the Supreme Court was whether the Respondent No. 1 was entitled to make an application for pre-emption u/s 24 of the West Bengal Non-Agricultural Tenancy Act, 1947. The Respondent No. 1 was admittedly not in possession of the land in dispute. The Supreme Court observed as follows:

Counsel, however, contended that the first Respondent having merely the right to receive rent, it was an ''intermediary'' within the meaning of Act I of 1954, that under that Act the interest of such an intermediary vested in the State on the extension of that Act to Chandernagore and therefore, the Association had no locus standi to apply for transfer. This contention also cannot be accepted, for an ''intermediary'' as defined in Section 2(1)(1) of that Act means a proprietor, tenure-holder, under-tenure-holder or any other intermediary above a raiyat or a non-agricultural tenant and in relation to mines and minerals, a lessee or a sub-lessee." It is thus obvious that the first Respondent being itself a non-agricultural tenant in respect of the entire land including the land in dispute it does not fall within this definition. Not being thus an intermediary it is impossible to say that its interests in the land in dispute vested in the State or that, therefore, it was not entitled to apply u/s 24.

The above decision of the Supreme Court clearly lays down that even if on the date of vesting a non-agricultural tenant was not in possession of the land and had only the rent receiving interest, still he cannot be held to be an intermediary within the meaning of the definition of the term u/s 2(1). There is, therefore, no substance in the contention of Mr. Chakrabortti that, as the Plaintiff was not in actual possession of the property in suit, he was an intermediary and that his interest vested in the State. The Appellant has, therefore, failed to discharge his onus as to the vesting of the interest of the Plaintiff in the State under the provisions of the West Bengal Estates Acquisition Act, 1953.

The next question to be considered is as to the validity of the lease. There is no formal document of lease, but the lease was sought to be created by Ex. 3 which was an agreement to lease. An agreement to lease may operate as a lease when there is a present demise. It is not disputed that by virtue of Ex. 3 the Defendant No. 1 took possession of the suit property. By Ex. 3, therefore, there was a demise. Under the first paragraph of Section 107 of the Transfer of Property Act a lease of immovable property from year to year or for any term exceeding one year or reserving yearly rent can be made only by a registered instrument. Admittedly, Ex. 3 by which a permanent lease was sought to be created in favour of the Defendant No. 1 was not registered. It is, accordingly, hit by the first paragraph of Section 107. The effect of non-registration of Ex. 3 is that it is inoperative as a lease.

On behalf of the Defendant No. 1 it is contended that although Ex. 3 is inoperative as a lease on the ground of non-registration thereof, the possession of the Defendant No. 1 of the suit property is protested by the doctrine of part performance u/s 53A of the Transfer of Property Act. There can be no doubt that in such cases Section 53A applies, but in order to invoke the provision of Section 53A, the following conditions are to be satisfied;

(i) there must be a valid contract to transfer from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty,

(ii) the transferee has in part performance of the contract taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract,

(3) the transferee has done some act in furtherance of the contract,

(4) the transferee has performed or is willing to perform his part of the contract.

Mr. Ghose, learned Advocate appearing on behalf of the Respondents, submits that as Section 53A has not been pleaded in the written statement of the Defendant No. 1, he is not entitled to raise the plea of the doctrine of part performance. In a Full Bench decision of this Court in Piru Charan Pal and Another Vs. Sunilmoy Nemo and Another, it has been held that the Defendant can raise the defence u/s 53A even if the section is not specifically mentioned in the written statement, provided ail ingredient facts of the section are pleaded. One of the ingredient facts or conditions of Section 53A is that a transferee is ready and willing to perform his part of the contract. It has been already noticed that the case of the Defendant No. 1 is that the lease created by Ex. 3 is quite legal and valid. It is not his case that although Ex. 3 is inoperative as a lease, his possession is protected as he has performed or is willing to perform his part of the contract. In the sub-paragraph to para. 11 of the written statement it has been stated as follows:

The Plaintiff has not exercised the option of re-entry according to law assuming that he has such a right. The Defendant submits that the suit for eviction on the ground of nonpayment of rent can be avoided by payment as provided in law and as such, the present suit is not maintainable and this Defendant is ready and willing to pay the amount as could be directed by the Court.

It is clear from the above statement that a case for relief against forfeiture u/s 114 of the Transfer of Property Act has been sought to be made out. The said statement as to the readiness and willingness of the Defendant No. 1 to pay the arrears of rent is not an unconditional statement but is a conditional one, namely, that only if the Court directs. In order to avail of Section 53A, there must be an unconditional statement in the written statement as to the Defendant''s readiness and willingness perform his part of the contract. In our opinion, the Defendant has not pleaded the ingredient facts so as to attract Section 53A. Firstly, the said statement has been made with reference to the provision of Section 114 of the Transfer of Property Act providing for relief against (sic) and secondly, the same is not an unconditional offer to pay the arrears of rent. Further, the relief u/s 53A being an equitable relief, the Defendant No. 1 having admittedly not paid rent to the Plaintiff for three consecutive years and having compelled him to realise past arrears of rent by institution of rent suits, in our opinion, there is no equity in favour of the Defendant. We would, accordingly, hold that the Defendant No. 1 is not entitled to any relief u/s 53A of the Transfer of Property Act.

The next important question is whether the Plaintiff is entitled to rely on Clause 12 of Ex. 3, providing for forfeiture of the lease for non-payment of rent by the Defendant No. 1 for three consecutive years. It has been already found that Ex. 3 not having been expressed in proper legal form, if is inoperative as a lease far less as a permanents lease. No relationship of landlord and tenant between the Plaintiff and the co-sharers on the one hand and the Defendant on the other can be said to have been created by Ex. 3 which is inoperative as a lease. But, apart from Ex.3, in view of the admitted payment and acceptance of rent, such a relationship of landlord and tenant between the parties can be presumed. The presumed tenancy or the tenancy by implication of law created by the admitted payment and acceptance of rent is a monthly tenancy as contemplated by the provision of s 106 of the Transfer of Property Act : See Ram Kumar Das Vs. Jagadish Chandra Deb Dhabal Deb and Another, . While conceding that it is a monthly lease, Mr. Ghose submits that the Plaintiff is entitled to rely on the forfeiture clause in Ex. 3. We are unable to accept this contention. Exhibit. 3 is invalid as a lease and as such, neither party can refer to or rely on any of the terms embodied therein. Nor the terms of Ex. 3 can be proved by oral evidence, for that will he hit by the provision of Section 91 of the Evidence Act. The position has been considered by P.N. Mookerjee J. in Indramoni Dasi, Tenant Vs. Sm. Snehalata Dutt, Landlord, . Mookerjee J. has observed:

It cannot, however, exclude proof of the terms of any other transaction, not connected with or referable to the said document, even if a relationship, similar in nature to the one contemplated by the defective document, arose between the parties as the result of this different transaction.

In support of the said observation, he has relied on a decision of the Privy Council in Port Canning and Land Improvement Co. Ltd. v. Katyani Debi L.R. 46 IndAp 279. In Port Canning''s case, the facts were that the Plaintiff company sued the Defendant for enhancement of rent in respect of the mourasi lease created under a memorandum. The memorandum was unregistered and it was held to be inadmissible in evidence. The Defendant relied on the memorandum to show that the rent was not enhance able, but as the memorandum was held to be inadmissible in evidence, she was not allowed to rely on the terms of the memorandum creating the lease. The Defendant, however; was allowed to rely on an entry in the settlement book of the Plaintiff company which supported the Defendant''s case that the rent was not enhance able after a particular year. Relying on the above observation of P.N. Mookerjee J. and the decision of the Privy Council in Port Canning''s case L.R. 46 IndAp 279 it has been urged by Mr. Ghose that the Plaintiff is entitled to prove the forfeiture clause from some other document not connected with Ex. 3. He has drawn our attention to Ex. 6(a) which is a copy of the order of the Revenue Officer u/s 44(1) of the West Bengal Estates Acquisition Act, 1953. In : the order it has been, inter alia, stated by the Revenue Officer as follows:

On the other hand, O.P. Prasanta Kumar Sur states that there was a condition in the agreement between the parties that unless the objector pays rent for consecutive three years'' interest of the objector will extinguish and the jama will come under khas....

It is contended by Mr. Ghose that the agreement referred to in the said order of the Revenue Officer is not the agreement to lease, Ex. 3. He submits that it should be considered as a different transaction not referable to Ex.3. We are unable to accept this contention. The order, Ex. 6(a), must be read as a whole. In the first part of the order the Revenue Officer expressly refers to the agreement dated April 29, 1936, which is Ex.3. The agreement referred to in the order of the Revenue Officer quoted above is undoubtedly the agreement, Ex. 3 and not any other agreement as contended by Mr. Ghose. In these circumstances, we do not think that there is any substance in the said contention of Mr. Ghose.

Apart from what has been stated above, the lease which has been created by the implication of law by the admitted payment and the acceptance of rent is a monthly lease as contemplated by Section 106 of the Transfer of Property Act. Such a lease can be terminated in the manner as laid down in Section 106, unless there is a contract to the contrary. In order to determine a monthly lease a lessor is not to assign any reason therefore or to prove that the lease has broken a condition as to payment of rent or any other condition. The lessor will be entitled to determine the lease by serving a notice to quit u/s 106 is subject to the contract to the contrary, but if a contract is such that it makes a lease to be lease for a term of years, in that case, it must comply with the requirement of Section 107 of the Transfer of Property Act. If in a case, it is agreed between the parties that the lease cannot be terminated by the lessor for three years unless the lessor commits default in payment of rent, it may be a contract contrary to the provision of Section 106, but the nature of the lease will not be monthly lease but a lease for 3 years. In such a case, the question of forfeiture of the lease will arise if the lessee commits default provided the lease is created in accordance with the provision of Section 107. In the instant case, we have already held that Ex. 3, having been hit by the provision of Section 107 for want of registration, is inoperative as a lease. Even assuming that the Plaintiff has been able to prove the agreement as to the forfeiture of the lease, apart from Ex. 3, still such an agreement cannot be given effect to, for it will tantamount to a lease for three years requiring compliance with the provision of Section 107. In these circumstances, there is no substance in the contention of Mr. Ghose that the forfeiture clause will remain effective in spite of the facts that Ex. 3 is inadmissible in evidence as creating a lease and that there is only a monthly lease which is presumed by implication of law in view of the admitted payment and the receipt of rent.

The monthly lease, which has been presumed, has not been determined in accordance with Section 106 of the Transfer of Property Act. The notice dated October 22, 1954, (Ex. 5) was insufficient as a notice to quit, for it did not terminate the monthly lease of the Defendant No. 1 on expiry of the month of tenancy nor was it given on behalf of the remaining co-sharers of the Plaintiff. The position, therefore, is that there is no permanent lease in favour of the Defendant No. 1 relating to the 6 annas or 9/24th share of the suit property, but by the implication of law there is a subsisting monthly lease in his favour terminable by all the lessors having in the aggregate 9/24th share.

There is much substance in the contention of Mr. Chakrabortti that as the lease has not been determined in accordance with law, the Plaintiff who leased out his own share in the suit property to the Defendant No. 1 could not be said to be in joint possession with him as the 10 annas co-share in mokurari mourasi interest and as such, no decree for partition could be passed in his favour in respect of his 5/24th share. To allow the claim for partition of the Respondents Nos. 1(1) to 1(7), the legal representatives of the Plaintiff, will be to evict the Defendant No. 1 from the suit property which cannot be done so long as the monthly lease of the Defendant No. 1 will be subsisting. In order to get a decree for partition the said Respondents and the remaining co-sharers lessors of the 6 annas group will have to terminate the lease of the Defendant No. 1 in accordance with Section 106. Before that no such decree for partition as claimed can be passed. The learned Subordinate Judge has not considered the points discussed about regarding the termination of the interest of the Defendant No. 1 as a lessee under the Plaintiff and the other co-sharers lessors.

In these circumstances, we set aside the judgment and decree of the learned Subordinate Judge and dismiss the suit. The appeal is allowed, but in view of the facts and circumstances of the case, we direct each party to bear his own cost both in this Court and in the Court below.

Sharma J.

I agree.