Gordhandas Jerambhai vs U.D. Banerjee

S.K. Chakravarti, J.—The only point that arises for determination in these seven appeals is as to whether a transferee landlord is entitled to tack the defaults which had occurred during the regime of the transferor landlord for the purpose of ejectment of the tenants on the ground of default under Clause (i) of Sub-sections (1) of Section 13 of the West Bengal Premises Tenancy Act, 1956, hereinafter referred to as the Act.

The Respondents were tenants in different portions of premises No. 15A Clive Row, Calcutta, under one Biswanath Mallick. On December 19, 1959, Biswanath executed an indenture of lease in favour of the Plaintiffs for a period of 80 years, with effect from January 1, 1960. He also gave them a notice in writing requesting them to attorney to the Plaintiffs from January 1960. On January 22, 1960, Biswanath also transferred and assigned to the Plaintiffs the arrears of rents due and payable by several of the tenants of the aforesaid premises. Thereafter the Plaintiffs served notices of ejectment on the Respondents and filed these seven suits for ejectment on the grounds that the Defendants had defaulted in the payment of rents for more than four months within a period of twelve months. The Defendants raised various defences with which we are not concerned in these appeals excepting with regard to the point that the Plaintiffs were not entitled to rely on the defaults during the regime of Biswanath for the purpose of ejectment. It appears to be a fact and has also been found by the learned Judge of the City Civil Court that, excepting for the month of January 1960, the other defaults were with effect from September 1959 to December 1959 in all these suits. In some of the suits the defaults were for a period even prior to September 1959. The learned Judge found that the notices had been duly served and that the Plaintiffs were the landlords and that there were these defaults at least from September 1959 upto January 1960. He found, however, that the rents for January 1960 were deposited by the Defendants-Respondents u/s 17(1) of the Act in time. He relied on the decision of this Court in Sm. Daya Debi Vs. Chapala Debi, and upheld the contention of the Defendants to the effect that the Plaintiffs were not entitled to rely on the defaults for a prior to January 1960 and in this view dismissed the suits. It is an admitted position that if the Plaintiffs cannot tack the defaults occurring before January 1960 during the regime of the transferor landlords, the Defendants tenants would not be defaulters liable to be ejected in these suits.

All these seven suits were tried together by the learned Judge as common questions of law and facts were involved, and all these appeals have been heard together at the request of the Learned Counsel on both sides and this judgment governs all these seven appeals.

Mr. A. C. Bhabhra, Learned Counsel appearing on behalf of the Appellants, in some of these appeals has very strenuously urged that the learned Judge was wrong in holding that the Plaintiffs were not entitled to tack the defaults before January 1960 for the purpose of ejectment.

Clause (i) of Sub-section (1) of Section 13 of the Act runs as follows:

Where the tenant has made a default in the payment of rent for two months within a period of twelve months or for two successive periods in cases where rent is not payable month IV.

Neither this section nor any other section in this Act would show that these defaults must be defaults under the Plaintiffs. To construe, therefore, that the defaults for the purpose of ejectment under this clause should be confined to defaults under the Plaintiffs would be to read something in the Act which is not there. The term ''landlord'' has been defined in the Act as follows:

''Landlord'' includes any person who, for the time being, is entitled to receive or for a special contract, would be entitled to receive the rent of any premises, whether or not on his own account.

It would appear therefrom a transferee would also be a landlord, and in the circumstances there is reason to confine the defaults only to the Plaintiff landlord. To hold that would imply that the heir of a landlord qua landlord would not be entitled to sue for ejectment on the ground of defaults occurring in the time of the person from whom he has inherited the properties. That would be unreasonable and doing a violence to the language used in the statute: We are all the more fortified in this conclusion by the decisions of this Court in a number of cases: Kanto M. Mullick v. Jyotish Chandra Mukherjee (1945) 49 C.W.N. 433 ; Manmatha Nath Joardar v. Sasanka Mohan Guha (1955) 96 C.L.J. 53 ; Charu Bala Das Vs. Madhu Sudhan Kundu and Others, ; Basumnti Devi v. Sannulal Shaw (1057) 61 C.W.N. 909 and Maya Singh v. Md. Basir (1961) 65 C.W.N. 759 . in these cases it has been laid down categorically that the Plaintiff in a suit for ejectment is entitled to rely on the defaults which had occurred during the regime of his predecessor-in-interest for the purpose of ejectment. Most of these cases of course relate to the West Bengal Premises Rent Control (Temporary Provisions) Act of 1950, but there has not been any marked change in the Act of 1956 which would affect the principles of these decisions. In Basutnati''s case the Court went so far as to hold that these principles would apply not only to the case of transfers inter views but also to the case of transfer by operation of law.

Mr. B. K. Ghosh, Learned Counsel appearing on behalf of the Respondents, in some of the cases has urged that in view of the decision of this Court in Daya v. Chapala (Supra.)''it must be held that a transferee landlord is not entitled to rely on the defaults during the regime of his transfer for the purpose of ejectment. In that case, what happened was that there was a transfer of the property first, and subsequently there was an assignment of rents due to the previous landlords to the Plaintiffs-transferees. That is exactly what has happened in these cases. The landlords filed the suit for ejectment of the tenant on the ground of default and filed an application u/s 17(3) of the Act striking out the defence against delivery of possession. The rents which according to the landlords were not deposited were rents which had become due to the previous landlords. The learned Judge held that such rents should have been deposited and directed the defence against delivery of possession to be struck out. Against that order the tenant moved this Court in Revision, and this Court held that the rents which had become due during the regime of the previous landlords had ceased to be rents after the transfer of the property and the assignment of the arrears of rents to the Plaintiffs and were simply money due, and as such, it was not necessary for the tenants to deposit those rents. Mr. Ghosh further submits that the decisions which have been referred to in the previous paragraph were all Single Bench decisions, whereas Daya''s case (Supra.) was decided by a Division Bench and, as such, the other decisions must be deemed to have been impliedly overruled. Maya''s case (Supra.) which was decided after the case of Daya, Mr. Ghosh submits, had not been properly decided, and that this Court was wrong in distinguishing Daya''s case therein.

The point that arises for determination in these cases is as to whether a transferee landlord is entitled to rely on the defaults which had occurred during the regime of the transferor landlords for the purpose of ejectment. The question which arose in Daya''s case was as to whether the tenant could be called upon to deposit the arrears which had accrued due during the regime of the transferor landlords. It is obvious that the point which arises for determination in the present suits is entirely different from that which was in issue in Daya''s case. It is pertinent to observe in this connection that in none of these seven cases was the defence against delivery of possession struck out, nor was there any application by the landlords praying to the Court for a direction upon the Defendants to deposit the rents which had fallen due before January 1960. In the circumstances, we are of opinion that Daya''s case cannot be relied on for the purpose of determination of the point which arises in these suits and appeals. When there are decisions of this Court down to earth on the point in issue, it is not proper to roam about in the twilight of inferences and conjectures. Mr. Bhabhra has also drawn our attention to an unreported decision dated March 13, 1969, of the Supreme Court in Rama Chander Nurse and Company v. Waman Rao (1969) 1 S.C.W.R, 815 to show that Daya''s case (Supra.) was overruled by the Supreme Court. What happened in, Rama Chander''s case was that the suit had originally been filed by one Plaintiff who was admittedly the landlord for the ejectment of the tenant on the ground of default under the Bombay Rents Hotel and Lodging House Rates Control Act, 1947. During the pendency of the suit the Plaintiff No. 1 sold the suit premises to his wife the Plaintiff No. 2 who was thereafter impleaded in the suit as supplemental second Plaintiff. The trial Court decreed the suit in favour of both the Plaintiffs, but the appellate Court altered the same and gave a decree exclusively in favour of the second Plaintiff. An application in revision to the High Court was dismissed summarily and, thereafter, the tenants appealed to the Supreme Court. The Supreme Court clearly distinguished Daya''s case (Supra.) inasmuch as in Daya''s case an assignment of the rent had taken place prior to the institution of the suit, whereas in the case before the Supreme Court it had taken place during the pendency of the suit. The Supreme Court observed:

It is not necessary for our present purpose to consider the correctness of the decision. Suffice it to show that on the facts of this case the rule laid down in that case is not apposite. In the circumstances, we cannot accept the contention of Mr. Bhabhra to the effect that Daya''s case was impliedly overruled by the Supreme Court. As the instant cases are clearly distinguishable from the facts of Daya''s case, we are not called upon to express any opinion as to the correctness of that decision.

Mr. Bhabhra has also relied on the decision of the Madras High Court in Rathnaswami Moopanar and Others Vs. R.C. Negaraja Moopanar, to show that where a premises was purchased the purchaser would be entitled to claim the arrears of rents which had accrued during the regime of the transferor landlord. In this particular case, we find that the parties did not accept that proposition as correct, inasmuch as in spite of the indenture of lease in favour of the present Plaintiff, it was thought necessary by them to get an assignment in writing in respect of arrears of rents which had accrued during the regime of the previous landlord and consideration had been paid also for that. Therefore, this decision will be of no help to the Plaintiffs.

Mr. Ghosh has drawn our attention to a particular clause of the indenture of lease, Ex. 6, which runs as follows:

(a) The lessees paying rent hereby reserved and observing and performing the several covenants and stipulations on the part of the lessees to be observed and performed shall peaceably hold and enjoy the demised premises and every part hereof and also the rents issues and profits thereof during the term of these presents without any eviction and/or interruption by the lessor or any person or persons lawfully claiming under or in trust for him.

Mr. Ghosh submits that the lessees, namely the present Plaintiffs, were entitled to the rents issues and profits arising out of the demised premises during the term of the lease and, therefore, were not entitled to rely on the defaults which had occurred during the time of Biswanath. We have already indicated that the parties believed that by the indenture of lease the lessees were not entitled to the rents which had fallen due during the time of Biswanath and that is why a separate document was required entitling the lessees to the same.

Therefore, by this indenture of lease it cannot be stated that the lessees had given up their rights to eject the tenants on the ground of defaults during the previous regime which right they have got under the law.

In F.A. No. 543 of 1962 a cross-objection has been taken to the effect that the notice is bad. Mr. Ghosh submits that as the defaults were stated to be from the month of May 1959 and, as the Plaintiffs are not entitled to rely on the defaults before January 1960, this notice would be bad. We do not think that in law this proposition is sound. It is not necessary to mention in the notice the exact period of default. Moreover, we have already found that the Plaintiffs are entitled to rely on the previous defaults. In the circumstances, this contention also fails.

The learned Advocates appearing for the Appellants Respondents in the other cases have adopted the arguments of Mr. Bhabhra and Mr. Ghosh. In none of these cases was any application filed by the tenant u/s 17(2) of the Act. The applications u/s 17(1) were for direction to deposit the current rents which they were permitted to do at their own risk. Even under the old proviso to Sub-section (4) of Section 17 of the Act the tenants would be outside the protection of the Act. At the time of hearing of these appeals that proviso no longer subsists and has been substituted by another proviso with retrospective effect, which in terms would not apply to the present cases. In the circumstances, neither the old Section 17 nor it in its amended state would afford any protection to these Respondents.

The result, therefore, is that these appeals are allowed and the judgment and decree dismissing the suits are set aside and all the seven suits are decreed with costs to the Plaintiffs. The cross-objection fails and is also dismissed without any order for costs.

Each party will bear its own costs in these appeals in this Court. The Defendants are given time till the end of April 1971 to vacate and deliver up vacant possession of the premises in suit to the Plaintiffs. In default, the Plaintiffs will be at liberty to take khas possession of the premises in execution of these decrees.

F.A.s. Nos. 542/62 to 548/62 (with cross-objection in F.A. No. 543/62.)

Sarma Sarker, J.

I respectfully agree with my lord to the proposed order but I would like to add a few words particularly on the point of law raised in this appeal.

The undisputed facts found by the Court below and not challenged in this appeal are that there was at least default in payment of rent for the period September-December 1959 to the superior landlord, Biswanath Mallick, who granted a lease in respect of the premises in question in favour of the present landlord/Respondents on December 19, 1959, for a period of 80 years and the lease took effect from January 1, 1960. There was default also in payment of rent for January and February 1960 to the landlords who got the lease and filed the suit. But rent for January 1960 was deposited in Court on receipt of summons and the rent for other periods Were deposited with the Rent Controller. The lessor also by a deed of assignment dated January 22, 1960, in consideration of the sum of Rs. 601 paid by the assignees (lessee) to the assignor (lessor) doth sell, assign and transfer unto the assignees the arrears of rent fully and also the right, title and interest, claim and/or demand whatsoever of the assignor in under and/or in respect of the arrears of rents fully described in schedule A.

Thereafter, the suits out of which present appeal arises were instituted on May 9, 1960, by the lessees landlords Respondents after service of notice to quit. The learned trial Judge dismissed the suits for ejectment relying on the decision of this Court, Daya Devi v. Chapala Devi (Supra) as the assignment of rent prior to the lease was not rent strictly so called but an actionable claim recoverable as debt only. The Plaintiffs landlords preferred this appeal.

The only point pressed for consideration in this appeal by Sri Bhabhra for the Appellants in F.A. No. 542 which was adopted by the learned Advocates appearing in other appeals is whether the transferee landlord can eject the tenant on the ground of default of payment of rent which took place at a time when the transferor land lord was in possession. Mr. Ghosh appearing for the Respondents in F.A. No. 543/1962 has argued and his argument was followed by the learned Advocates for the Respondents in other appeals that arrears of rent which fell due during the time of the transferor landlord cannot be taken into consideration as defaults in payment of rent to the transferee landlords who have filed the suits for ejectment as the default was not in respect of payment of rent but in respect of actionable claim recoverable as money debt. As rent was due for the period of default to the landlords who have filed the suits for ejectment, they cannot tack the period of default which took place, during the time of their predecessors. Reliance was placed on a Division Bench decision of this Court in Daya Devi v. Chapala Devi (Supra ). Mr. Ghosh has urged that the decision of the Division Bench is a good law and supersedes the decisions of Single Bench to the contrary, and if this Division Bench is'' of any different opinion then reference to a larger Bench is necessary.

But Mr. Bhabhra, appearing on behalf of the Respondents, has argued that the decision in Daya Devi v. Chapala Devi (Supra) is no longer a good law in view of the decision by the Supreme Court in Rama Chander Nurse and Company v. Waman Rao (Supra) where it was held distinguishing the Calcutta case Daya Devi v. Chapala Devi (Supra) and without considering the correctness of that decision that where the arrears of rent is transferred along with the right, title and interest in the suit premises to the second Plaintiffs during the pendency of (1) Supra (7) Supra the suit then the transferee landlord is entitled to gat a decree for ejectment though the default took place during the time of the transferor landlord.

There seems to be a long chain of decisions of this Court as well as of others which uniformly lays down that where the land-lord''s interest is transferred along with the arrears of rent the transferee landlord can sue in ejectment tacking the default in payment of rent to the transferor landlord. It has been decided in Kanta M. Mullick v. Jyotish Chandra Mukherjee (Supra) that a tenant who has defaulted in payment of rent for the requisite period is not entitled to take advantage thereof. The next case is Manmalha Nath J oar-day v. Sasanka Mohan Guha (Supra) where it was held that earlier two defaults made during the tenure of the previous landlord could be tacked to the two defaults made during the time of the present transferee landlord so as to give the benefit of the proviso to Sub-section (Supra) of Section 14 of the West Bengal Premises Rent Control Act, 1950, read with Clause (1) of the proviso to Sub-section (1) of Section 12 of the Act. The next case reported is Charu Bala Das v. Madhusudan Kundu (Supra) where it was decided that a transferee landlord can avail himself of default to the transferor landlord. The next case reported is Basumati Debi v. Sannulal Shaw (Supra) which held that a superior landlord who has become a direct landlord of a sub-tenant by operation of law may avail himself of the default committed by the sub-tenant when the intermediate tenancy was valid and effective. The last reported case of this Court is Maya Singh v. Md. Basir (Supra) where Chatterjee J. after considering the Division Bench decision in Daya Devi''s case (Supra) held that the West Bengal Premises Rent Control Act, 1950, do not support the view that in a suit for ejectment defaults made by the tenant during the time of previous landlord should not be taken into account.

It is true that all these Calcutta cases except Daya Devi''s case are Single Bench decisions, but that case did not directly deal with the question of ejectment on the ground of default but only dealt with the question of deposit u/s 17(1) of the West Bengal Premises Tenancy Act, 1956 (hereinafter called the Act). It is true that there is an implied decision that the assignment of rent by the transferor landlord in favour of transferee tenant in respect of tenant due prior to the transfer is not rent strictly so called but only actionable claim for the recovery of the money. But it is well-settled that a case law is precedent for what it actually decides and not in respect of the necessary corollaries of conclusions which are deducible from such decisions. On the other hand, the latest available decision of the Supreme Court in Rama Cbander Nurse and Company v. Waman Rao (Supra) clearly lays down that when landlord''s interest is sold along with arrears of rent the transferee landlord not only gets right to the land but also to recover rent as such. Mr. Ghosh tries to distinguish this Supreme Court case on the footing that in that case the landlord filed the ejectment suit in respect of the arrears of rent due to him, but during the pendency of the suit the Plaintiff landlord transferred his entire interest together with arrears of rent to his wife who was made a party to the suit. But it is to be considered that the reasons for the decision in the Supreme Court case was that when the landlord''s interest is transferred with arrears of rent there is a transferor of rent also and not merely arrears of money claimed. In the instant case, the landlord is on a stronger footing for two reasons: first, Respondent transferees purchased not only landlord''s interest but also arrears of rent due. It was sought to he argued by Mr. Ghosh that in the instant case the arrears of rent was not sold at the time of the lease of the landlord''s interest but afterwards. This in my opinion does not make any difference. The sole question is whether the landlord''s interest and the right to claim arrears of rent devolved on the transferee landlord before filing of the suit. In that case the landlord is entitled to claim rent and not merely arrears of money due.

In R. Mooppaner v. R. C. Nagaraja Mooppaner (Supra) a distinction was made between assignments of rents and property and a lease of reversion. In the case of former, there is only the right to receive rent and property, but in the case of a reversion it is not only the right to receive rents and property but also the rights which lessor had on the date of the reversion, for example, his right to recover possession initially on the expiry of the previous term. It was also held under the old Bengal Tenancy Act that a decree obtained by the assignee of both the landlord''s title and the arrears of rent is a rent decree and not merely a decree for arrears of money as actionable claim Shashi Kumar Mirbahar v. Seeta Nath Banerjee ILR (1908) Cal. 744 and Hirday Narain Singh and Others Vs. Jugal Prasad Singh, .

Secondly, the question should be looked at from the standpoint of the tenant and not of the landlord. The word ''rent'' has not been defined under the West Bengal Premises Tenancy Act, 1956 (hereinafter referred to as the Act), or under the Transfer of Property Act, and so we may look to the definition under the Bengal Tenancy Act where Section 3(13) states that ''rent* means whatever is lawfully payable or deliverable in money or kind by a tenant to his landlord on account of the use or occupation of the land held by the tenant. The word ''landlord'' has been defined in Section 2(d) of the Act to include any person who for the time being is entitled to receive or but for a special contract would be entitled to receive the rent of any premises whether on his account or not. It is, therefore, clear that what the tenant pays for the use and occupation of the tenancy is rent whether due to the present or ex-landlord. The moot question is not whether the present landlord can sue for arrears "of rent, as such, or as money due as debt as actionable claim but whether the tenant is entitled to protection from eviction. Under the Transfer of Property Act the tenant is liable to be ejected on service of notice to quit. But u/s 13 of the Act the tenant is entitled to protection from eviction unless as contemplated in Section 13(1) the tenant has made a default in the payment of rent for two months within a period of twelve months. Even in case of such default the tenant can avoid ejectment if he makes deposit u/s 17(1) 8c (2) of the Act. But deposit cannot be made if there has been default in payment of rent for four months within a period of twelve months. In the instant case, there is admitted default for four months though this default was in respect of payment of rent to the previous landlords. The question has to be looked at not from the standpoint what the landlord will get whether rent as such or only money due but whether tenant has defaulted in payment of rent due. Viewed in this way with reference to provisions in Sections 13(1) and 17(4) proviso, the tenant Appellant has forfeited his claim to protection against eviction. So far as the tenant is concerned there can be no room for doubt that rent was payable by him whether to the transferor landlord or to the transferee landlord. If rent is payable and if rent is not paid, the default is a default in payment of rent and not merely a default in payment of money. If the view is taken that there cannot be any ejectment on the ground of default unless the default in payment of rent arises during the time of the landlord Plaintiff then some serious consequences will follow. If the property devolves from father to son and if the default is made during the time of the father, then the son cannot sue for ejectment of the ground of default. Similarly, if the landlord''s interest is transferred successively every two years or every one year then there can be no ejectment on the ground^ of default in payment of rent and the tenant can enjoy the property rent-free. That is not the intention of the Legislature as can be found from the West Bengal Premises Tenancy Act, 1956. In this view of the matter, I hold that the Plaintiff Respondent is entitled to decree of ejectment on the ground of default even though the default took place during the time of the previous landlords.

I need not express any final opinion as to the correctness of the decision in Daya Devi''s case (Supra ), nor is it necessary to refer this case to a larger Bench as that case did not consider the case of ejectment on the ground of default but only the case of deposit u/s 17(1) of the Act. Besides, the* Supreme Court decision in Rama Chander''s case (7) has laid down true criterion that the transferee landlord can take advantage of the default made to the transferor landlord. It is true that the landlord in that case transferred his interest during the pendency of the suit, but the decision rested on the wider ground whether the default of payment of rent due was available to the transferee landlord for ejectment. Two conditions must be fulfilled before the suit for eviction of tenant on the ground of default can be validly maintained� first, the Plaintiff must have the landlord''s interest including the right of eviction on the ground of statutory default and, secondly, there must be default for the requisite period no matter whether the default took place during the time of the transferee landlord or of the predecessors. In the instant case, not only arrears of rent were sold but also all the right, title, interest claim and/or demand whatsoever of the assignor in under and/or in respect of arrears of rent in terms of the deed of assignment dated January 22, 1960. The right to sue in ejectment is a right of the assignor in under and/or in respect of the arrears of rent. The Respondents, therefore, got the right to file the suit in ejectment even on the specific terms of the assignment. The suits for ejectment are, therefore, maintainable at the instance of the Respondents.

Both on reasons and authority and in view of the nature of the deed of assignment in the present case, the appeals be allowed and suits be decreed as ordered by my Lord and the cross-objection be also dismissed.