Girish Chandra Kar and Another vs Kartick Chandra Banerjee

Sankari Prasad Das Ghosh, J.—This appeal at the instance of the plaintiffs is directed against, the judgment and decree passed by the learned Judge, Thirteenth Bench, City Civil Court, Calcutta, in Title Suit No. 1491 of 1974. The plaintiffs-appellants are grandsons of one Haridasi Dassi, who was the owner of premises no. 124-C, Batakrishna Pal Avenue, Calcutta, and several other properties. She executed a deed of trust on 27-1-1943 in respect of her properties, including premises no. 124-C, Batakrishna Pal Avenue, Calcutta (hereinafter referred to as the suit-premises for the sake of convenience) for the performance of seva puja of their family deity, Sri Sri Iswar Balgopal Jew, which was established and consecrated on 6-2-1941 in the fourth storey of her premises no. 181/A, Balaram De Street, Calcutta, and for other purposes. One of the terms of the deed of trust was that the trustee shall let out to tenants all the immovable properties, except such portion which was excluded from being let out by that deed. On 8-2-1960, a deed of lease was executed by Ramchandra Kar as her constituted attorney in respect of the suit-premises, whereby the defendant-respondent became a tenant of the suit-premises for a term of 21 years and 22 days and up to the end of February, 1981 at the rent of Rs. 125/- per month. Haridasi died on 14-3-1974. After her death, a notice was sent by the appellants to the defendant through an Advocate for payment of rent in respect of the suit-premises for the month of December, 1973 and for the months from February to May, 1974 at the rate of Rs. 125/- per month. In a reply dated 12-8-1974 being sent by the defendant to that Advocate''s notice, it was stated that Haridasi had executed another deed of lease in respect of the suit-premises on 8-2-1971. The plaintiff-appellants filed the title suit in the City Civil Court, challenging this latter deed of lease dated 8-2-1971.

The case of the plaintiffs-appellants was that on account of infirmity due to old age, Haridasi became blind. She was an absolutely illiterate, lady and could not follow the implications about execution of the second deed of lease. It was alleged that the second deed of lease was obtained by fraud, undue influence, misrepresentation and coercion, as the terms of the second deed were not favourable to Haridasi, as compared with the terms of the first deed of lease. By filing the suit, the plaintiffs prayed for a. declaration that the deed of lease dated 8-2-1971 was obtained by fraud, misrepresentation, undue influence and as such, was not binding upon the plaintiffs. The plaintiffs prayed for a declaration that the second deed of lease was void and was of no effect on the plaintiffs. They also prayed for passing of a decree for cancellation of the second deed of lease. There was a further prayer in the plaint for recovery of khas possession of the suit-premises.

The defence of the defendant-respondent was that being unable to tolerate the conduct of the plaintiff-appellant no. 1, Haridasi left for Burdwan sometime in January, 1972 for her safety. Before leaving for Burdwan, she executed the second deed of lease and collected the monthly rent from the respondent in Calcutta by issuing receipts under her own signature. She had also received rent at Burdwan by signing her name in the postal acknowledgements. Haridasi was intelligent enough to understand the terms of English documents. It was denied that the second deed of lease was obtained by fraud, undue influence and coercion. The alleged blindness of Haridasi at the time of execution of the second deed of lease was also denied.

The appellants examined the appellant no. 1,'' Girish Chandra Kar, as P.W. 1. The respondent examined himself as D. W. 1 and an Advocate, Girija Mohan Sanyal (D. W. 2), who happens to be one of the attesting witnesses of the second deed of lease in which there was an endorsement that the deed was explained to Haridasi by D. W. 2. On a consideration of the evidence of these witnesses and the documentary evidence on record, the learned Judge was of the opinion that the second deed of lease was a good piece of document. Accordingly, the suit, was dismissed by him. Being aggrieved by this judgment, and decree passed by the learned Judge, City Civil Court, Calcutta, the present appeal has been filed.

Mr. Banerjee, appearing for the appellants, has argued that when the first deed, of lease dated 8-2-1960, Ext. 8, was a registered deed, there should not be in law another registered deed on 8-2-1971, Ext. A, without cancellation of the first deed of lease. He took us through the evidence on record for the purpose of showing that the findings of the learned Judge were based on surmises and conjectures without due consideration of the evidence on record.

Mr. Bhattacharyya, appearing for the respondent, has argued that the second deed of lease is not vitiated by any fraud or undue influence or coercion. Recording to him, the trust created by...the deed of trust dated 27-1-1943, Ext. 9, was in the nature of a private religious endowment, which fell outside the scope of the provisions of the Indian Trusts Act, 1882 (hereinafter referred to as the Act for the sake of convenience), on the basis of the provisions in section 36 on which some arguments were advanced in the court below as well as in this Court.

Before entering into the merits of the respective cases on the basis of the oral and documentary evidence on record, it is better to dispose of the legal contentions raised by Mr. Banerjee and Mr. Bhattacharyya. So far as the contention- of Mr. Banerjee is concerned, it is to be stated that a deed of lease of immovable property from year to year, or for any term exceeding one year is to be registered u/s 17(1) (d) of the Indian Registration Act, 1908. The first deed of lease, Ext. 8, as well as the second deed of. lease, Ext. A, are both registered. As such, there is no question in this case about any priority of any registered deed over any unregistered deed on the basis of the provisions in section 50 of the Indian Registration Act. There can be no question or cancellation of the second deed of lease u/s 31 of the Specific Relief Act, 1963, as the terms of the second deed of lease are more favorable to the respondent than the terms of the first deed and cannot cause any serious injury to the respondent. u/s 62 of the Indian Contract Act, if the parties to a contract agree to substitute a new contract for it, or to rescind or alter it, the original contract need not be performed. In these circumstances, if Haridasi had agreed to substitute a new lease for the earlier lease, the earlier lease need not be cancelled for making the second lease valid. The legal contention of Mr. Banerjee cannot, thus be accepted.

So far as the contention of Mr. Bhattacharyya that a private religious endowment is created by the deed of trust, Ext. 9, is concerned, it is to be stated that this contention has been raised so that the provisions of the Act could not be resorted to for scrutinizing the second deed of lease. A scrutiny of the provisions of the deed of trust, Ext. 9, shows that no private religious endowment was created by the deed of trust. The deed of trust was executed by Haridasi, as she was desirous of making provisions for her husband, son, daughter and grandsons and also desirous of making provisions for the seva, daily. worship and performance of the periodical festivals of the family deity, Sri Sri Iswar Balgopal Jew. By the deed of trust, Haridasi became the first trustee. It was stated in the deed of trust that after the death of the first trustee, Durgadas Kar should be the trustee and after the death of Durgadas Kar, Ramchandra Kar, the son of Haridasi (father of the appellants) would be the trustee. It is not disputed that both Durgadas and Ramchandra predeceased Haridasi. It is stated in the deed of trust, Ext. 9, that after the death of these trustees, the appellant no. 1 and such sons as would be born to Ramchandra Kar would become absolutely entitled to the properties mentioned in the deed of trust, but subject to the performance of the daily seva or worship of the family deity for which certain sums were specifically mentioned in the Schedule ''B'' of the deed of trust. The deed of trust contained provisions as to how the rent received from tenants on letting out the immovable properties mentioned in the deed should be utilised for payment of rates, taxes, ground rents, revenues and other out goings, creation of reserve fund; performance of the daily seva puja and periodical festivals and for maintenance of the trustees and the grand-children, i.e., the sons of Ramchandra Kar. Considering the nature of the dedication for performance of the seva puja and periodical festivals and absence of divesting of the sons of Ramchandra Kar from the properties mentioned in the deed of trust, it cannot be at all stated that it was a private religious endowment. There was, in fact, no divesting of the properties mentioned in the deed of trust inasmuch as the income by way of rent on leasing out the properties mentioned in the deed to tenants was to be utilised for the several purposes mentioned in the deed. In these circumstances, on the basis of the saving clause in section 1 of the Act, excluding private religious or charitable endowment from the scope of the Act, it cannot be stated that the provisions of the Act could not be considered for finding out if the second deed of lease was a valid deed or not. The contention of Mr. Bhattacharyya, that a private religious endowment was created by the deed of trust, Ext. 9, cannot, thus, be accepted.

To find out whether the second deed of trust can be set aside, as prayed for by the appellants, one is to consider the provisions of sections 36 and 49 of the Act. u/s 36 of the Act, no trustee shall lease the trust property for a term exceeding 21 years from the date of executing the lease, or without reserving the best yearly rent that can be reasonably obtained except with the permission of a principal civil court of original jurisdiction. u/s 49 of the Act, where a discretionary power conferred on a trustee is not exercised reasonably and in good faith, such power may be controlled by a principal civil court of original jurisdiction. It is no doubt true that so far as the suit-premises is concerned, the principal civil court of original jurisdiction, is the court of the Chief Judge, City Civil Court, Calcutta, and not the court of the learned Judge, Thirteenth Bench, City Civil Court, Calcutta. Even then, in the present appeal, we are not concerned with any petition by any trustee under the deed of trust, Ext. 9, for granting permission u/s 36 of the Act. We are not concerned in this appeal with any petition filed by any beneficiary under the deed of trust during the life-time of Haridasi, challenging the exercise of discretionary power by her by executing the second deed of lease. The principles behind sections 36 and 49 of the Act can, thus, be availed of by the appellants, when the suit in the City Civil Court was filed after the death of Haridasi and the other trustees, who predeceased Haridasi. A power is not exercised bonafide if it is shown that the trustees acted oppressively, corruptly, spitefully or with other improper motive or for reason which can be said to be irrational, perverse or irrelevant to any sensible expectation of the settler or failed or refused to consider whether or not to exercise the power. A trustee cannot be considered to have acted reasonably, if he has neglected to obtain skilled advice. Merely taking advice without more is not necessarily a passport to validate any act of any trustee. The first thing that cannot but escape one''s scrutiny while scrutinising the two deeds of lease is the unfavorable nature of the second deed as compared with the first deed. In the first deed of lease, Ext. 8, there is provision for payment by, the lessee to the lesser along with rent of Rs. 125/- per month all excess whatsoever of municipal taxes, both owner''s and occupier''s share, over the present rate. In the second deed of lease, this provision, for payment of the excess of owner''s share of municipal taxes is absent. In the first deed of lease, there is no provision for renewal of the lease, though there is such a provision in the second deed for renewing the lease at the option of the lessee for a further term of 21 years upon fresh and or further terms and conditions, if necessary. It is stated in the second deed that the lesser shall not unreasonably refuse to renew the lease upon such terms and conditions as will then be found or considered reasonable. This covenant for renewal of the lease ran with the suit premises, though there was no such provision in the first deed. In the first deed, there is provision for earlier determination of the lease and delivery of peaceful possession to the lesser, though such provision is conspicuously absent in the Second deed. The second thing that has to be considered for deciding as no whether the second deed is a valid deed or not is the absence of any reason whatsoever for execution of the second deed. The evidence of D. W. 1, the defendant, is that at the time the second deed was executed, the condition of the locality was not very normal due to Naxalite. movement. It is stated by D. W. 1 that he had previously given out to Haridasi that he would go away from the place due to Naxalite movement. D. W. 1 has stated that she told this to Haridasi in 1970-71 in presence of her daughter, along with whom Haridasi used to come to his house at that period to realise rents from him. A scrutiny of the first deed of lease, however, shows that there was a provision in the first deed for termination of lease by the lessee himself. This is in conformity with the provisions in section 110 of the Transfer of Property Act under which where the time mentioned in a deed of lease is expressed to be terminable before its expiration, and the lease omits to mention at whose option it is so terminable, the lessee, not the lesser, shall have such option. This is, however, a case where by the first deed of lease, the lessee was given the option in writing to terminate the lease earlier, so that there should not be any necessity for resorting to the provision of section 110 of the Transfer of Property Act for terminating the lease. It is stated in the first deed that the lessee shall pay to the lesser a consolidated sum of Rs. 300/- only as compensation if the lessee terminates the lease within or before the expiration of 21 years and 22 days from the date of the lease. If that be the fact, nothing stood in the way of the defendant from vacating the suit-premises on terminating the lease on paying a sum of Rs. 300/-only as compensation, when the monthly rent by the first deed was Rs. 125/-.

The alleged Naxalite movement in the locality cannot, thus, be any ground for execution of the second deed of lease by Haridasi. Thirdly, the evidence of D. W. 1 shows that the talks for settlement by the second deed took place in presence of Satish Chandra Chunder, the brother of Haridasi the defendant and Haridasi and none else towards September. 1970. Satish Chandra Chunder has not been examined, The non-examination of Satish Chandra Chunder is to be considered along with a letter dated 15-2-1972, Ext. H(l), sent under signature of Haridasi to the defendant. In this letter, Ext. H(1), the amount of rent of the suit-premises was twice written in figures and words as something different from Rs. 130/- and was subsequently made to appear as Rs. 130/-. On being asked by the Court, Mr. Bhattacharyya was unable to dispute that the rent was probably written in figure as and words as Rs. 135/- twice in this letter, and was subsequently made to appear as Rs. 130/- by placing the digit, "O" over the digit, "5" and striking out the word, "poin" twice in the letter. It is unfortunate that no evidence was taken in the court below regarding the correction of the rate of rent twice, in this letter, Ext. H(l). Nevertheless the Court is entitled, on the basis of the provisions in section 73 of the Evidence Act, to look into the writings in this letter. When the rate of rent in words and fibers was struck out twice in this letter, Ext. H(1), there is scope for thinking that Haridasi was probably given to understand that if the second deed was executed, the rate of monthly rent would be enhanced not to Rs. 130/- but to some other figure higher than Rs 130/-. Fourthly the non-examination of Manicklal Chunder, a nephew of Haridasi, also leads to an adverse inference against the case of the respondent. It is in the evidence of D. W. 1 that Manicklal Chunder appointed Sri Girija Mohan Sanyal, D. W. 2, and that he did not appoint Sri Sanyal. The learned Judge relied on the evidences of Mr. Sanyal very much for dismissing the suit, Manicklal has not been examined, though the evidence of D.W. 2 is that he knew Kartick, the defendant, and that it was the defendant, who had Instructed him to draft the deed, being accompanied by the lady. Fifthly, there is no evidence of consultation of Haridasi with any legal practitioner prior to the execution of the second deed of lease. P. W. 1 has stated frankly that he has no personal knowledge as to when and how Ext. A was executed by Haridasi, though he has stated that no lawyer was present on behalf of Haridasi, at the place of execution of the second deed. Admittedly, D. W. 2 was present at the time of execution of the second deed in the registry office. It is in the evidence of D. W. 1 that Haridasi signed the lease at the registry office. Though the first deed of lease was executed not by Haridasi herself but by her constituted attorney, the father of the appellants, the second deed was signed by Haridasi at the Registry office after D. W. 2 was instructed by the defendant to draft the deed. The absence of any legal advice of Haridasi before execution of the second deed of lease, though there are provisions in the deed of trust, Ext. 9. for vesting of the properties mentioned in the deed of trust with the sons of Ramchandra, is very material in the context of non-examination of Manicklal Chunder. Sixthly, there are discrepancies in the evidences as to who typed the second deed of lease. According to D. W. 1. Sri Sanyal got the original deed typed. This is denied by D. W. 2. D. W. 2 has stated that he did not type the original document. He has further stated the Original document was not typed by anyone of his sherista. Seventhly, there is no cross-examination of P. W. 1 that the fair rent of the suit-premises ought to have been Rs. 500/- or Rs. 600/- and not merely Rs. 130/- at the time of execution of the second deed. Eighthly, the letter, Ext. 10, dated 23-5-73 from the defendant to Haridasi shows that the defendant had paid rents for the months of June and July (presumably for the year 1972) to Didi. It is not known who this Didi (elder sister) was. It is not understood as to why in spite of payment of rents for the months of June and July, 1972 to the elder sister called Didi, rents for these months were also sent to Haridasi as per the money order coupons, Ext. D series.

Lastly, the money order acknowledgment, Ext. E, shows that no rent could be paid by the defendant for 7/8 months. By this money order acknowledgment, Ext. E, rent for the month of February, 1974 was sent by the defendant to Haridasi. It was in 1974 that a suit was filed by Haridasi against her nephew Manick Lal Chandra, as per the evidences of P.W. 1. It is in the evidence of P.W. 1 that that suit is still pending. Exhibit F is the Vokalatnama in connection with that suit. If Manick Lal had actually appointed, the Advocate Mr. G. M. Sanyal (D. W. 2), as per the evidences of the defendant (D. W. 1), it is not understood as to why Haridasi was later on compelled to file a suit against Manick Lal. In this context, it is anybody''s guess as to who the Didi was to whom the rent had also been paid at least for the months of June and July, 1972 by the defendant in respect of the suit-premises,

The learned Judge relied on Ext. A, the second deed of lease, on the ground that it did not contain terms of bargain. We have already discussed how the second deed of lease was much more unfavorable than the first deed of lease. The learned Judge relied on the second deed of lease by observing that if Kartick was really acting fraudulently, he would have, in that case, managed to get a false sale-deed executed by Haridasi. We are unable to appreciate this observation of the learned Judge in view of the provisions in section 37 of the Act. There is no provision in the deed of trust, Ext. 9, empowering any trustee to sell the properties mentioned in that deed. As such, there is no question of obtaining of any sale-deed by Kartick from Haridasi in respect of the suit-premises.

Considering the above facts and circumstances of the case and the materials on record, we are of the opinion that the second deed, Ext. A, is very much unfavorable to the trustees as well as the appellants and that it is to be set aside for not reserving the best yearly rent that could have been reasonably obtained in 1971 by executing such a deed. We are also of the opinion that the second deed of lease, is not to subsist as the discretionary power conferred on Haridasi was not exercised by her reasonably and in good faith as Per the provisions of section 49 of the Act. There must have been misrepresentation to Haridasi before the execution of the second deed of lease inasmuch as even the rate of rent per month was mentioned not once but twice at more than Rs. 130/- in the letter dated 15-2-72 from Haridasi to the defendant Ext. H(l). The appellants will thus get the declaration as prayed for with regard to the second deed of lease.

As for the prayer of the appellants for recovery of possession of the suit-premises, it is to be stated that the first lease was in force when the suit was filed in the court below. The duration of the period of lease under the first deed of lease did not expire when the judgment, in the suit was delivered by the learned Judge on 8-9-78. In these circumstances, the prayer for recovery of possession of the suit-premises was premature at the time of filing of the suit. When there could have been no decree for recovery of possession of the suit-premises during the pendency of the period of lease under the first deed, we are unable to pass a decree for recovery of possession in the suit in this appeal. The remedy of the appellants lies in filing a proper suit in proper court for recovery of possession of the suit-premises on the ground of expiry of the period of lease mentioned in the first deed of lease, Ext. 8. The appeal is accordingly allowed. The judgment and decree passed by the learned Judge, 13th Bench, City Civil Court, in Title Suit No. 1491 of 1974 are set aside. The suit itself is decreed in part against the defendant-respondent. It is hereby declared that the second deed of lease dated February 8, 1971 was obtained by misrepresentation and is not binding upon the plaintiffs-appellants and is of no effect so far as the plaintiffs-appellants are concerned.

Each party to bear its own costs in this appeal.

G.N. Ray, J.

I agree.