Amulyanath Dutt vs Jugal Krishna Halder

S.P. Mitra, J.—This is a suit for the possession of a "shop room" (hereinafter called !''the room") on the ground floor of premises No. 115, Honohardas Street, Calcutta, for mesne profits and other reliefs.

According to the Plaintiffs by an Indenture of Lease, dated the 23rd Chaitra, 1344 B.S., corresponding to the 6th April, 1938, the Defendant became a lessee in respect of the room.. By process of devolution and transfer the Plaintiffs are the present owners of the premises. The Indenture of Lease provided, inter alia, that the lease would be for a period of twelve years from Jaistha, 1344 B.S. to Baisakh 1.356 B.S., the lessee would make over vacant and peaceful possession of the room to the lessons on the expiry of the term of the lease; if the lessee failed to make over vacant possession the lessee would pay as compensation to the lessons Rs. 3 per day till vacant possession was delivered, and the rent of the room would be Rs. 30 per month payable by the 15th day of each succeeding month. The term of the lease expired on the last day of Baisakh, 1356 B.S., corresponding to the 14th May, 1949, but the Defendant did not deliver up possession notwithstanding notice served on the Defendant of the Plaintiffs'' intention to reenter. No rent has been tendered or paid to or received by the Plaintiffs since the expiry of the lease.

In the alternative the Plaintiffs state that they determined the tenancy of the Defendant by causing a notice to quit to be served on the Defendant calling upon the Defendant to quit, vacate and deliver up possession of the room on the expiry of the month of Baisakh, 1356 B.S., and that the Plaintiffs require the room bona fide for their own use and occupation. The Defendant has wrongfully and illegally transferred or sub-let the whole of the room for a period of more than six months without the consent and authority of the Plaintiffs. Notwithstanding determination of the Defendant''s tenancy the Defendant continues to be in illegal and wrongful possession of the room.

In the written statement the Defendant states that by a registered Deed of Sale, dated the 1st Sravan, 1951 B.S. corresponding to the 17th July, 1944, the Defendant conveyed his right and title to and interest in the room under the Indenture of Lease to one Sasthi Charan Halder who became the lessee and the Defendant was absolved from all liabilities attaching to the lease. The Defendant is not in possession of the room and denies that he is under any obligation to deliver up possession. In any event it is impossible for the Defendant to make over possession as Sasthi Charan Haider is in possession and claims to be entitled to retain possession. The Defendant states that the Plaintiff having refused to accept the rents the same were and are being deposited with the Rent Controller. The Defendant does not admit the validity or service of the notice to quit. The Defendant denies that the Plaintiffs require the room bona fide or reasonably or at all for their own use and occupation. The Defendant admits that he transferred the whole of the room as aforesaid but denies that such transfer was illegal or wrongful or without the consent of the landlords. The Defendant denies that he had sublet the room. The Defendant denies that any consent or authority of the Plaintiffs for the transfer was necessary. The Defendant does not admit that by devolution or transfer the Plaintiffs are the present owners of the premises.

The following Issues were raised:

(1) Are the Plaintiffs the present owners of the premises in suit?

(2) Did the Plaintiffs terminate the tenancy of the Defendant by a notice to quit as alleged in paragraph 6 of the plaint?

(3 Is the notice to quit valid and lawful and binding on the Defendant?

(4) Is the Defendant still continuing in possession of the premises in suit?

(5) Has the Defendant sublet or otherwise transferred his interest in the premises in suit?

(6) Did the Plaintiffs accept rent from Sasthi Charan Haldar after the 17th July, 1944 and thereby absolve the Defendant from all liabilities under the Lease?

(7) Do the Plaintiffs require the premises in suit bona fide for their own use and occupation?

(8) To what relief, if any, are the Plaintiff''s entitled?

As to the Plaintiffs'' ownership of the premises Biswanath Dutt the Plaintiff No. 3 has stated that in or about 1950 when the suit was instituted the Plaintiffs were the owners. On the 6th April, 1938, when the Indenture of Lease was executed the owners were Manmatha Nath Dutt, Jitendra Nath Dutt, Amulya Nath Dutt and Satyanath Dutt. Manmatha and Jitendra had each one-third share in the premises and Amulya and Satya owned the remaining one-third. In 1947 Jitendra made a gift of his one-third share in favour of his daughter Gouri Rani Paul the Plaintiff No. 2. In 1944 there was a partition between Amulya and Satya whereby Amulya got Satya''s share and became the owner of undivided one-third share in the premises. Manmatha died in 1944 leaving three sons-Biswanath the Plaintiff No. 3, Sachindra the Plaintiff No. 4 and Mrityunjay and his widow Biraj Lakshmi Dassi the Plaintiff No. 5, Mrityunjay was a bachelor and died in 1945.

Biswanath in answer to question 66 has stated that the subject-matter of the Deed of Gift in favour of Gouri Rani was more than Rs. 100.

Amulya Nath Dutt the Plaintiff No. 1 has also deposed that at present he has one third share in the premises, Gouri Rani the Plaintiff No. 2 has one-third share and Biswanath the Plaintiff No. 3, Sachindra the Plaintiff No. 4 and their mother Biraj Lakshmi the Plaintiff No. 5 jointly own the remaining one-third share. In answer to questions 67 to 72 Amulya states that there has been a mutual partition between him and his brother Satya. By reason of the partition Amulya has got Satya''s share in the premises. There was a Deed of Partition and the subject matter of the deed was more than Its. 100.

Mr. Bholanath Sen appearing for the Defendant has argued that it has not been proved that the Plaintiffs are the present owners of the premises. His contention is that the title of Gouri Rani to one-third share in the premises and the title of Amulya to Satyanath''s share in the premises have not been established. The evidence is that in 1947 Jitendra Nath Dutt executed a Deed of Gift in favour of his daughter Gouri Rani Paul the Plaintiff No. 2 in respect of Jitendra''s one-third share in the premises. It is also in evidence that under a Deed of Partition executed in 1944 Amulya was given Satyanath''s share in the premises and became the owner of the one-third share Amulya is now claiming. It is in evidence that the values of the subject-matters of moth the Deed of Gift and the Deed of Partition were more than Rs. 100. According to learned Counsel for the Defendant in order to establish Gouri Rani''s title to one-third share and Amulya''s title to one-sixth share of Satya the Plaintiffs should have produced and proved the Deed of Gift and the Deed of Partition. No other evience can be admissible to prove the terms of these documents in view of the provisions of Section 91 of the Indian Evidence Act.

I am unable to agree with the learned Counsel for the Defendant. When the terms of a contract or of a grant or any other disposition of property have been reduced to the form of a document, Section 91 of the Indian Evidence Act bars the proof of the terms of the document otherwise than by production of the document. Section 91 does not exclude other proof of the transaction itself. [Vide Singheshwar Jha Vs. Ajab Lal Mandar and Others, ; Musammat Makhduman Vs. Saiyed Altaf Hussain and Others, ; and Chhottalal Aditram Travadi v. Bai Mahakori and Ors. AIR (1917) Bom. 206].

In my opinion, therefore, parol evidence is admissible to prove that Gourirani got one-third share in the property as a gift from her father Jitendra and Amullya was given Satya''s share in the property in a mutual partition between the two brothers. It should be noticed that in cross-examination of the Plaintiffs'' witnesses there was no suggestion by the Defendant''s counsel as to who according to the Defendant the present owners of the premises were. The Plaintiffs have, in my view, established that they are the present owners.

As regards the validity of the notice to quit Mr. Bholanath Sen for the Defendants draws my attention to a letter, dated the 11th February, 1939, being Plaintiffs'' document No. 2 at page 4 of the agreed brief of documents marked Ex. "D". His point is that this letter admittedly was written under instructions from the Plaintiffs Nos. 1, 2, 3 and 4 but not the Plaintiff No. 5 Biraj Lakshmi. There can be no question, therefore, that the notice to quit is bad. Learned Counsel for the Plaintiffs has stated that the letter of the 11th February, 1949, is not the notice at all. The notice is at page 6 Plaintiffs'' document No. 4 which is a letter from Anil Kumar Sett to the Defendant, dated the 20th April, 1949. The Plaintiffs'' document No. 4 does not contain the defect mentioned by learned Counsel for the Defendant. It is true that in the plaint the date of the notice to quit has not been given but reading the two letters, dated the 11th February, 1949 and the 20th April, 1949, I am of opinion that the notice to quit referred to in para. 6 of the plaint is Plaintiffs'' document No. 4 that is to say, the letter, dated the 20th April, 1949. I, therefore, hold that the notice to quit served on the Defendant is valid and lawful and is binding on him.

The next contention of learned Counsel for the Defendant is that the Plaintiffs could not terminate the Defendant''s tenancy by a notice to quit. The Defendant at the relevant point of time was not continuing in possession of the room as he had made an absolute assignment of his interest in the lease in favour of Sasthi Charan Haider. The Defendant''s tenancy was not then in existence, and he was not in a position to make over possession to the Plaintiff. The Defendant cannot even institute a suit against Sasthi to recover possession from him. The learned Counsel relies on the decision in Milmo v. Carreras (1946) 1 All E.R. 288. Learned Counsel for the Defendant contends further that since the Defendant is not in possession far from being in wrongful possession from the 17th July, 1944, which is the date of his assignment in favour of Sasthi, the Plaintiffs cannot also maintain a claim for mesne profits against him.

It is relevant in this connection to refer to the provisions of Sections 108(j) and 108(q) of the Transfer of Property Act which are as follows:

108(3): the lessee may transfer absolutely or by way of mortgage or sublease the whole or any part of his interest in the property, and any transferee of such interest or part may again transfer it. The lessee shall not by reason only of such transfer, cease to be subject to any of the liabilities attaching to the lease.....

108(q) "on the termination of the lease, the lessee, is bound to put the lesson into possession of the property.

Then again Section 11(i)(b) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948, under which this suit is being tried is as follows:

Notwithstanding anything contained in the Transfer of Property Act, 1882 the Presidency Small Cause Courts Act, 1882, or the Indian Contract Act, 1872, no order or decree for the recovery of possession of any premises shall be made as long as the tenant pays to the full extent the rent allowable by this Act and performs the conditions of the tenancy.

Provided that nothing in this Sub-section shall apply,-

(b) where the tenant has sub-let, or otherwise transferred his interest in, the premises-

(i) for more than six consecutive months and to the extent either of the whole or a major portion of the premises, in the absence of any contract or other authority in writing expressly permitting such sub-letting or transfer,...

Absolute assignments are assignments of the entire interest of the lessee. An absolute assignment creates privity of estate between the lesson and the assignee and the assignee becomes unable to the lesson on covenants running with the land including the covenant to pay rent but the lessee by transferring the whole or part of his interest does not absolve himself of his contractual liabilities to the lesson. Notice to the lesson of the transfer does not affect the liability. The original lessee is liable on his covenant that is by the privity of contract and the assignee is liable by privity of estate. The liability of the lessee cease when the lesson releases the lessee. The release may be express or implied, (See Mulla''s Transfer of Property Act, Edition, pages 646 to 648).

It is conceded in this case by Mr. Bholanath Sen appearing for the Defendant that there is nothing to show that the Plaintiffs accepted rent from Sasthi Charan Haider after the 17th July, 1944 and thereby absolved the Defendant from all liabilities under the lease. It is also clear from the provisions of the Transfer of Property Act and the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948, that the legislatures did take into consideration cases of absolute assignments but provided that notwithstanding an absolute assignment the liability of the lessee to put the lesson into possession of the property on the determination of the lease continues. I do not also accept the contention that the Defendant has ceased to be in possession after the assignment on the 17th July, 1944. The Defendant is in constructive occupation of the room through his assignee Sasthi Charan Haider who has not been accepted as a tenant by the Plaintiffs and his liability to make over possession is still there. (See Foa''s General Law of Landlord and Tenant, 7th Edition, pages 395 and 307).

Learned Counsel for the Plaintiffs has relied on an unreported decision of Sarkar. J. in Suit No. 4518 of 1949 (Prafulla Chandra Bhar v. Aryya Insurance Co. Ltd.). This was a suit for possession on the ground of ipso facto determination of tenancy under the provisions of Section 12(3) of the West Bengal Premises Rent Control Act, 1948. The defence substantially was that there was a surrender of tenancy. By a letter, dated the 3rd March, 1949, the Defendant requested the Plaintiff to take delivery of possession on the 1st March, 1949, which was absurd. The letter was received by the Plaintiff on the 5th March, 1949. It contained an offer to deliver vacant possession. The Plaintiff''s reply was that he would not take possession until a month''s notice to quit had been served or failing that a month''s rent, being the rent for the month of March, 1949, was paid to him. The third letter was the Defendant''s reply to the Plaintiff in which it sent to the Plaintiff a cheque for Rs. 150 being the rent for March, 1949. This cheque was accepted by the Plaintiff and he went to take over possession but he found that it was fully occupied by unknown persons. No one on behalf of the Defendant attended to deliver possession. Sarkar, J., held that no possession having been delivered by the Defendant to the Plaintiff, there was no surrender. In the result the tenancy continued.

It was argued in this case on behalf of the Defendant that as the Defendant was not in possession of the demised premises since the 1st March, 1949, the Plaintiff''s claim for mesne profits was not maintainable. The same point has been urged by Mr. Bholanath Sen for the Defendant in the case before me. Dealing with this point Sarkar, J., observed as follows:

There was some discussion as to the claim for mesne profits. It is admitted that on the determination of the tenancy the Defendant did not deliver vacant, or indeed any possession to the Plaintiff as it was liable to do. Section 108(q), Transfer of Property Act, There was therefore a breach of the tenants obligation for which the landlord is entitled to damages. The Defendant states that it vacated the demised premises on March 1, 1949. There is no dispute that when the Plaintiff went to take possession on or about March 9, 1949, he found the premises occupied and they have continued to be so occupied all along. The Defendant''s counsel states that the occupier are trespassers. The Defendant has however led no evidence and I therefore do not know who the occupiers are. This however seems to me irrelevant. The measure of damages would be the same whether the tenant leaves the premises with sub-tenants or licensees on them or whether simply abandons the premises so that trespassers get into it. In either case there is equally a breach of the tenant''s obligation and this breach would entitle the landlord to the loss suffered in consequence of the breach. Indeed it seems to me, that if trespassers have got in, the landlord will have to file a suit against them to get possession, while if subtenants were there, they might have been evicted in execution of the decree obtained in the suit against the tenant. There can be no question that a suit would cost the landlord more money and take longer time than an application in execution. So it would follow that the landlord''s damages would, where trespassers are left on his property, be larger.

Since it was urged that the Defendant was not liable for mesne profits for any period for which it was out of possession, Sarkar, J., to avoid all difficulties, directed in His Lordship''s judgment an amendment of the plaint raising a claim for damages also and passed a decree for Its. 150 per month as damages from July 10, 1949, till possession is delivered and the cost of the legal proceedings, if any, that the Plaintiffs might have to take to obtain vacant possession.

In the present case I see no difficulty, in passing a decree for mesne profits as in my view which I have expressed earlier the Defendant is in constructive possession of the room through his assignee who has not been accepted by the Plaintiffs as a tenant. I shall, however, assess the quantum of mesne profits at Its. 30 per month which was the rate of rent.

I come now to Issues Nos. 5 and 7. It is conceded by learned Counsel for the Plaintiffs that the requirement of the room by the Plaintiffs bona fide for their own use and occupation has not been satisfactorily proved.. This Issue has been given up by him.

With regard to the allegation in paragraph 8 of the plaint that the Defendant has transferred or sub-let the whole of the room for a period of more than six months without the consent and authority of the Plaintiffs, it is enough to refer to para. 9 of the written statement which is as follows:

In answer to para. 8 of the plaint the Defendant admits that he transferred the whole of the said shop room as hereinbefore stated but denies that such transfer was wrongful or illegal or without the consent of the landlord. He denies that he had sublet the said shop room. He denies that any consent or authority of the Plaintiffs for the said transfer was necessary.

Mr. Bholanath Sen appearing for the Defendant relied on Clause 7 of the Indenture of Lease, dated the 23rd Chaitra, 1344 B.S., which runs thus:

I, the lessee and we, the lessons, remain liable for and bound by all the terms of this deed down to heirs and successors in interest of both the parties.

The contention of learned Counsel for the Defendant, is that since the expression "successors in interest" has been used in this clause, I ought to hold that the lessee was expressly permitted in writing to transfer his interest in the premises. I do not accept this contention. It is admitted in paragraph 9 of the written statement that the Defendant has transferred the whole of the room. There is nothing, in my opinion, to show that there was any contract or authority in writing expressly permitting such transfer. The Defendant, therefore, is liable to eviction under proviso (b)(i) of Section 11(1) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948.

The answers to the Issues are as follows:

(1) Yes.

(2) Yes.

(3) Yes.

(4) Yes, in constructive possession through his assignee.

(5) Yes.

(6) No.

(7) No.

The result, therefore, is that there will be a decree for possession of the room described in para. 1 of the plaint, for mesne profits at the rate of Rs. 30 per month from the 1st Jaistha, 1356 B.S., corresponding to the 15th May, 1949, till delivery of possession and for costs.