Bibhuti Bhusan Das vs Brajo Bala Dutta

Bagchi, J.—This is an appeal against the judgment and decree passed by learned Subordinate Judge, Asansol, confirming the judgment and decree passed by the learned Munsiff, Second Court, Asansol. What happened was this:

The property described in schedule ''kha'' of the plaint is a tin shed. It bears a rental of Rs. 14 per month, situated in the municipal town of Ranigunj being holding No. 50. The property belonged to four brothers in ejmali. Of the four brothers, one Ramnath Bhose sold 1/4th (one-fourth) undivided share in the said property by a registered kobala dated August 15, 1956 to the present Plaintiff. The Defendant No. 1 was a tenant under those four brothers in respect of the property in question, at a monthly rental of Rs. 14 payable according to the Bengali calendar month. On purchasing 1/4th (one-fourth) undivided share in the property from Ramnath, the Plaintiff has acquired undivided 1/4th (one-fourth) share in the property of which the other co-sharers are the Defendants Nos. 2, 3 and 4. The notice of acquisition of 1/4th undivided share by the Plaintiff from Ramnath was given under a registered post to the Defendant No. 1, claiming 1/4th (one-fourth) share in the rent payable for the property to the Plaintiff. The pro forma Defendants, the co-sharers of the Plaintiff, inspite of the request made by the Plaintiff to join in the suit, did not join. So, the Plaintiff claimed his 1/4th share of rent for the property for the month of Bhadra, 1363 B.s. to Agrahayan, 1363 B.S. The Defendant No. 1 and the pro forma Defendant raised various contentions. Besides several other pleas in defence, one common plea was that the suit, as framed, was not maintainable. The learned Munsiff gave a decree for the Plaintiff''s share of rent on the view that the Plaintiff was entitled to get his share of rent and to sue for his share of rent making his co-sharers parties Defendants under the authority of provisions of Sections 37 and 109 of the Transfer of Property Act. The learned Subordinate Judge affirmed the judgment and decree of the learned Munsiff holding that Sections 37 and 109 of the Transfer of Property Act clearly entitled the Plaintiff to sue for only his share of rent as claimed in presence of his co-sharers and he, therefore, affirmed the judgment and decree passed by the learned Munsift

Mr. Dutt, learned Advocate for the Defendants Appellants, that means co-sharer-landlords and the Defendant-tenant, submitted that what the Courts below held could not be supported and that the Courts below failed to consider that Sections 37 and 109 of the Act would not govern the procedure for bringing a suit like this by a co-sharer landlord claiming only his share of rent as against the tenant making the other co-sharers parties pro forma Defendant. Mr. Dutt further submitted that the Plaintiff could have claimed the entire rent for the period in question for and on behalf of the entire body of co-sharer landlord in the presence of such co-sharers claiming a decree for the entire rent due as against the tenant. In support of his argument, he relied on several decisions. Firstly, he rested his submission pointedly drawing my attention to the observation of the Privy Council in Raja Pramada Nath Roy v. Raja Ramani Kanta Roy (1907) 7 C.L.J. 139 where their Lordships enunciated the principle as to the procedure following which a co-sharer in regard to zemindary interest could bring a suit as against the patnidar for realisation of his share of patni rent. Their Lordships'' observation is as follows:

And it is a general rule, a rule not derived from the Bengal Tenancy Act, but from quite another branch of law, namely, the general principle of legal procedure, that a sharer, whose co-sharers refuse to join him as Plaintiffs can bring them into the suit as Defendants and sue for the whole rent of the tenure.

Mr. Dutt submitted that under the general law the Plaintiff of this suit could have sued the present Defendant-tenant following the procedure as appearing in the aforesaid observation of the Privy Council, but that having had not been done, the suit could hardly be maintained. Mr. Mukherjee for the Respondent Plaintiff submitted that the observation relied on by Mr. Dutt was made in a case governed by the Bengal Tenancy Act and would not be applicable to this case governed by the Transfer of Property Act. But, in the observation itself, the Board expressed itself in these terms:

a rule not derived from the Bengal Tenancy Act.

The Board considered the general law and enunciated the general principle. Therefore, Mr. Mukherjee''s argument that the aforesaid observation would not govern the present case could not impress me. Thereafter, Mr. Dutt placed before me a decision in Radhabinode Mondal v. Naba Kishore Mondal (1925) 30 C.W.N. 413. In that case, the landlord claimed 1/6th share of his rent and sued the Defendant tenant for a decree claiming only 1/6th (one-sixth) share of his rent. Their Lordships held,

The suit, as framed, was not maintainable.

Explaining that decision, Mr. Mukherjee submitted, picking up words here and there, that that decision also related to a holding under an estate and as such, was a decision in a case governed by the Bengal Tenancy Act. Therefore, Mr. Mukherjee urged that the present suit, being one governed by the Transfer of Property Act, would not be governed by the principle laid down in the decision. I could not accept this argument. What was decided in that case was not a question as to the legal character of the decree whether it would be a decree for money under the general law, or a decree for rent under the special law, that is, Bengal Tenancy Act. There the question was whether a contract which is one and indivisible could be at the will of one of the contracting parties severed. Their Lordships'' observations are as follows:

The Plaintiff alone may sue for the enforcement of the entire contract between him and his brother by making his brother a party-Defendant. But he is not entitled to enforce a part of the contract between himself and his brother on the one hand and the tenants on the other.

So, the question before the Court was that when the tenant was liable under the contract of tenancy to pay rent to the brothers whether one of the brothers could enforce the contract only in his share by a suit as he had claimed against the tenant, even in presence of his brother. According to their Lordships, the Plaintiff could enforce the entire contract in presence of his brother but not a severed contract as he attempted to do. Therefore, in that decision, it was not at all necessary to consider what would be the effect of the decree whether a decree for rent under the Bengal Tenancy Act, or a money decree, under the general law. The moot point was whether the Plaintiff could cause a severance of the contract by framing a suit, following a procedure which would have resulted in the severance of the contract had the suit succeeded. Their Lordships said that the procedure adopted by the Plaintiff in an attempt to cause the severance of the contract by the frame of the suit as filed would not sustain in law. Therefore, Mr. Mukherjee''s contention that, the decision would not govern the question now raised before me, could not impress me. Mr. Dutt placed before me another decision in Dhaneswar Choudhary and Others Vs. Subodh Kumar Sett and Others, . In this case, the tenancy was a thika tenancy. The Plaintiffs, being co-sharers landlords, sued for realisation of rent due to their 1/3rd (one-third) share making their co-sharers pro forma Defendants. The learned Judge observed that:

It must be held that the present suit as framed is not maintainable, even though the co-sharers of the Plaintiff might have been impleaded as pro forma Defendants in the suit, the underlying principle being that the contract for payment of rent is not liable to be split up at the will of a co-sharer landlord.

The learned Judge followed the decision reported in C.W.N. (Supra) which was also placed before me by Mr. Dutt. I have already considered that decision and I respectfully accept the principle laid down in that decision. My Lord T.P. Mukherji, J. in the case reported in AIR (3) followed the principle laid down in the decision reported in C.W.N. (2). I respectfully agree with my Lord Justice T.P. Mukherji.

Coming to Sections 37 and 109 of the Transfer of Property Act Mr. Mukherjee, learned Advocate for the Respondent-Plaintiff, submitted that in view of Section 37 of the Act the Plaintiff acquired the right to get 1/4th (one-fourth) share of the rent and the Defendant was obliged to pay 1/4th (one-fourth) of the rent and that, as such, the Plaintiff was entitled to recover his share of rent from the tenant-Defendant in the suit as framed by him. He admitted further that in view of the 3rd paragraph of Section 109 of the Act, the present suit should be considered as one for apportionment of rent although the suit had not been so framed asking for a relief for apportionment of rent. Mr. Mukherjee contended that when the notice of transfer was given to the Defendant No. 1 and the co-sharers of the Plaintiffs were made parties pro forma Defendants, the suit filed by the Plaintiff claiming his share of rent for the period in suit could be nothing but a suit for apportionment of rent Section 37 of the Act creates a substantive right and has nothing to do with the procedural law relating to the enforcement of such right. Section 109 of the Act, 3rd paragraph, runs as follows:

* * * *

The lessor, the transferee and the lessee may determine what proportion of the premium or rent reserved by the lease is payable in respect of the part so transferred and in case they disagree, such determination may be made by any Court having jurisdiction to entertain a suit for the possession of the property leased.

The observations of Tindal, C.J. quoted from the judgment in Decharms v. Horwood (1834) 10 Bing. 526 (529), appearing in the case of Ahinsa Bibi v. Abdul Kader Saheb (1901) ILR 25 Mad. 26 (34) are echoed in the 3rd paragraph of Section 109 of Transfer of Property Act. His Lordship''s observations are as follows:

The authorities all agree that whatever be the number of parceners, they all constitute one heir. They are connected together by unity of interest and unity of title and one of them cannot distrain without joining the others in the avowry.... If they cannot distrain separately, how can they separately claim a portion of the rent from a person who has received it in the character of a trustee? It would be a great hardship on him to be exposed to three actions instead of one. But it might happen that he might have received authority from the other parceners. Inasmuch, therefore, as there has been no division of these rents, nor any agreement by the Defendant to hold one-third of them separately for the Plaintiff, he has no right separately to sue the Defendant.

The principle behind Section 109 of the Act, 3rd paragraph, is that the lessor, the transferee and the lessee must mutually determine the proportion of rent reserved by the lease payable in respect of the part transferred. If a part of the leasehold interest of the lessor, that is, the landlords'' interest is transferred to another, the right of the transferee lessor, a co-sharer landlord, to realise his share of rent and liability of the tenant lessee to pay such share of rent so claimed by the part-transferee lessor, i.e. co-sharer landlord, should be determined by the lessor, transferee lessor and the lessee by mutual agreement. If the three failed to determine the inter se rights and liabilities in regard to the share of rent realisable by the co-sharers, lessors including the transferee lessor and payable by the lessee tenant to each of such co-sharer lessor, the only remedy would then lie in a suit for apportionment of rent before a competent Court and such suit may be brought by any one of those three parties, making the other two parties Defendants in the suit. The procedure for the frame of the suit in case of part transfer of the lessor''s interest, where there are more than one lessor, for fixation of rent recoverable in the share of the transferee lessor and payable by the tenant to such transferee lessor and the other lessor or lessors is laid down in the 3rd paragraph of Section 109 of the Transfer of Property Act. But in the present case, the suit was not framed claiming relief for apportionment of rent in terms of para. 3 of Section 109 of the Transfer of Property Act. The Plaintiff claimed one-fourth share of the total rent and sued for realisation of his share of rent in arrears for four months making his co-sharers parties but did not in the plaint claim for apportionment of rent. The learned Munsiff and the Subordinate Judge referred to Sections 37 and 109 of the Transfer of Property Act to uphold the frame of the Suit and its maintainability as framed, but failed to consider that, under the general law as laid down by the Privy Council and a Division Bench of this Court in the decisions I have discussed, the Plaintiff was to have brought the suit against the tenant Defendant for the entire rent in arrear due to the entire body of landlords in presence of his co-sharers and in that case the suit would have been a perfectly valid suit, but not the one that the Plaintiff brought. If the Plaintiff would have brought the suit framed consistently with the 3rd paragraph of Section 109 of the Transfer of Property Act the suit could have been maintained and the learned Judges below could well support the frame of the suit and its maintainability under 3rd paragraph of Section 109 of the Transfer of Property Act. But, as the suit was framed, neither Section 37 nor Section 109 of the Transfer of Property Act could be applied to sustain the frame of the suit and its maintainability under the law.

Accordingly, I hold that the judgment and decree passed by both the Courts below would not sustain in law and must be and are hereby set aside and reversed. Both the Courts below erred in holding that the procedure for bringing the suit as brought by the Plaintiff could be supported by Sections 37 and 109 of the Transfer of Property Act. But these two sections do not lay down the procedure for bringing the suit as this and the procedure the Plaintiff was to have adopted has been already laid down so far back as in 1907 by the Privy Council in the observation I have quoted above and such procedure also was laid down in a Division Bench decision of this Court which I have already discussed. The said Division Bench decision has been followed by T.P. Mukherji, J. in a recent case which has also been placed and discussed.

Mr. Mukherjee, for the Respondent, submitted that if the judgment in this appeal was'' adverse against his clients a leave to appeal under Clause 15 of the Letters Patent might be considered. Mr. Dutt submitted that there was no point of law that was involved in this appeal, which had not been decided by a Division Bench decision of this Court previously as well as by the Privy Council. Mr. Mukherjee at this stage placed before me a Bench decision in Peary Lal Daw v. Madhoji Jiban (1912) 17 C.L.J. 372 The principle laid down in that decision is not in dispute before me now. In that decision the question as to the frame of the suit as the present one, was not at all involved. The only question in this appeal is whether the procedure followed by the present Plaintiff-Respondent was a lawful procedure for framing and maintaining the suit as framed. So, that decision cannot be invoked in aid of Mr. Mukherjee''s contention. Therefore, I do not find any justifiable ground for allowing leave to prefer an appeal under Clause 15 of the Letters Patent.

The appeal is, therefore, allowed with costs. The judgment and decree of both the Courts below are set aside and reversed and the suit be and the same is thereby dismissed with costs. No order is necessary on the alternative application.