Indramoni Dasi, Tenant vs Sm. Snehalata Dutt, Landlord

P.N. Mookerjee, J.—This Rule raises an interesting question. The Rule arises out of a proceeding for ejectment of a thika tenant u/s 5 of the Calcutta Thika Tenancy Act. That proceeding started before the Controller on December 14, 1951. It was hotly contested and, eventually, it terminated in an order of ejectment which was made by the Controller on March 16, 1953, subject to the usual statutory conditions. The tenant appealed--the appeal was actually filed on April 25. 1953-- but he failed to get any relief from the learned Appellate Judge, who dismissed the appeal and confirmed the Controller''s order on February 27, 1954.

The tenant then moved this Court and obtained the present Rule on April 26, 1954.

In their application before the Controller the landlords put forward two grounds for ejectment under the Thika Tenancy Act, viz., (i) expiry of the period as term of the lease (vide section 3, Clause (vi), and (ii) bona fide requirement for their own use and occupation [vide section 3, clause (iv)]. They failed on the first ground, but succeeded on the second. There was also the necessary allegation of a valid three months notice to quit which was accepted by both the Controller and the learned Appellate Judge.

Both the learned Judges below have found that the landlords "require" the disputed land for their own use and occupation. That finding is not open to challenge in this Rule. That much is conceded by the petitioner''s learned Advocate, but he contends that his client is entitled to succeed on the question of notice and his entire attack is concentrated on this question of the validity of the notice to quit.

It will be convenient now to set out in brief the petitioner''s argument in support of the Rule. Mr. Roy argues that the registered kabuliyat (Ex. 4) dated July 27, 1946, on which, the landlords (Opposite Parties) relied, inter alia, for proof of the petitioner''s tenancy and its terms is a unilateral document, executed by the tenant (petitioner) alone, and, as it purports to create a tenancy for five years, it is invalid and inoperative in law in view of the third paragraph of section 107 of the Transfer of Property Act. The tenancy, therefore, cannot be proved by the kabuliyat (Ex. 4) and, as the terms of the tenancy were embodied in that document, no other evidence could be given in proof of the same in view of section 91 of the Indian Evidence Act, and, that being so, it is impossible to find in this case that the petitioner''s tenancy was according to the Bengali calendar, which finding is essential to support the validity of the notice to quit (Ex. 6) which was given in this case, expiring admittedly with the end of a Bengali calendar month.

The notice to quit (Ex. 6) was served some time in Ashar, 1358 B.S., terminating the petitioner''s tenancy with effect from the end of Aswin, 1358 B.S. It would thus be a clear three months'' notice, expiring with the end of a month of the tenancy, and would satisfy the requirements of section 4(b) of the Calcutta Thika Tenancy Act, provided only that the petitioner''s tenancy was according to the Bengali calendar. This follows from the terms of section 4 which are as follows: "It shall not be competent for a landlord to eject any thika tenant from his holding unless the landlord has given the thika tenant notice in the manner provided in section 106 of the Transfer of Property Act, 1882", and (b) "in the case where he wishes to eject the thika tenant on the ground specified in clause (iv) of section 3 at least three months'' notice in writing expiring with the end of a month of the tenancy:" If the petitioner be found to be a monthly tenant according to the Bengali calendar, her tenancy would be duly determined u/s 106 of the Transfer of Property Act by a 15 days'' notice to quit, expiring with the end of a Bengali calendar month, but, u/s 4(b) of the Calcutta Thika Tenancy Act, as quoted above, the minimum period is three months and, therefore., to get an order for ejectment under the said Thika Tenancy Act upon the above hypothesis, namely, that the tenancy is from month to month according to the Bengali calendar, the landlords must prove a three months'' notice to quit, expiring with the end of a Bengali calendar month. There is no dispute now that such a notice has been given and the only question that remains is proof of the hypothesis, namely, that the petitioner''s tenancy was from month to month according to the Bengali calendar.

The controversy is, indeed, even narrower, as Mr. Roy does not dispute before me that, on the materials before the Court, the petitioner has been proved to be a tenant from month to month, but he submits that the tenancy is in law a tenancy according to the British calendar which would require for its determination a three months'' notice to quit, expiring with the end of a British calendar month. No such notice has admittedly been given and so Mr. Roy urges that this Rule ought to succeed the order of ejectment, passed by the Controller and affirmed on appeal by the Appellate Officer, should be set aside and the opposite parties'' application for ejectment should be dismissed.

The first link in Mr. Roy''s chain of reasonings has already been indicated above. The kabuliyat (Ex. 4) is invalid and inoperative under esction 107 of the Transfer of Property Act and no evidence of the terms of the tenancy is admissible in view of section 91 of the Indian Evidence Act. The next link starts with the admitted relationship of landlord and tenant between the parties and the admitted payment and receipt of rent. That establishes the tenancy and purpose of it is admittedly residential. This, according to Mr. Roy, at once attracts section 106 of the Transfer of Property Act to make the petitioner''s tenancy one from month to month. The third link rests on the General Clauses Act. As no evidence of the terms of the tenancy is available in law and the calendar of the tenancy cannot be proved, the month u/s 106 of the Transfer of Property Act, for purposes of the present case, must be the British calendar month under the definition section 2(4) of the General Glauses Act, 1868, which is practically in the same terms as the corresponding section 3 (33) now 3(35) of the General Clauses Act, 1897. This completes the argument that the petitioner''s tenancy is one from month to month according to the British calendar and, once that is accepted, the notice given must be held to be invalid and insufficient.

Having given the matter my best consideration, I am unable to accept the basic deductions of Mr. Roy which are essential for his final conclusion and I shall presently indicate my reasons.

In the first place, the tenancy which arises by implication of law from the payment and receipt of rent is not the tenancy under the invalid Kabuliyat (Ex. 4). Proof of its terms, if otherwise available, would not be excluded by section 91 of the Indian Evidence Act which, as its language shows must be confined to the particular contract or grant, etc.. the terms whereof--to quote the relevant part of the section, --''''have been reduced to the form of a document"; in other words, to the invalid express contract of tenancy, referable to the kabuliyat (Ex. 4) in the present case. That section, therefore, would be altogether irrelevant for our present purpose. Secondly, it seems to me that the terms of this implied tenancy, lawfully inferable from the materials before me are sufficient to exclude the statutory presumption of a British calendar month under the General Clauses Act and to establish the Bengali calendar month as the month of the petitioner''s said implied tenancy. With these preliminary remarks, I proceed at once to a detailed discussion of the true legal position.

The unilateral kabuliyat. Ext. 4, executed by the lessee alone, cannot be considered to be a lease under the Transfer of Property Act. The tenancy, if any, so far as the kabuliyat (Ex. 4) is concerned, would arise only on acceptance of the kabuliyat by the lessor. For purposes of the Transfer of Property Act, therefore, the kabuliyat, Ext. 4. cannot, strictly speaking, be considered to be a document of lease so as to be hit by section 107 of the Act. That however, would not be of any importance in the present case or of any assistance to the opposite parties. This express contractual lease was intended to be for five years. A lease for five years under the Transfer of Property Act, which admittedly governs the present case, can be made only by a registered instrument, signed by both parties, the lessor and the lessee. Clearly, therefore, the express contractual lease did not take effect, as, in the light of what I have said above, there was no document of lease at all, not to speak of. a registered instrument of lease, signed by both the lessor and the lessee. Even if the kabuliyat (Ex. 4) be regarded as an instrument of lease, the same conclusion would follow as being unilateral, that is. executed by the lessee alone, it would be. hit by the third paragraph of section 107 of the Transfer of Property Act and so the express contractual lease, embodied in this document (kabuliyat Ex. 4). would not take effect in law. Conceding that section 91 of the Indian Evidence Act applies where the document, referred to therein, is defective either on account of non-registration and/or no other grounds [Vide in this connection in the case of Varatha Pillai v. Jeevarathammal, (1) (L.R. 46 T.A. 285 at page 290); See also Lalit Mohan. Ghosh v. Gopali Chuck Coal Company Lid, (2) (I.L.R. 39 Cal. 284 F.B.)]. that section would preclude proof of the terms of the contract or grant, etc., embodied in that document. 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 a result of this different transaction. It is important to remember this distinction which gets support from the decision of the Judicial Committee in the case of Port Canning and Land Improvement Company Limited v. Katyani Debi. (3) (L.R.46 IndAp 279 at 282). and also from non-mention of section 91 of the Indian Evidence Act in the Supreme Court case of Ram Kumar Day, v. Jagadish Chandra Deo Dhabal Deb (4) (1952 S.C.A. 79).

The tenancy, if any, between the parties must be some other tenancy and must be found otherwise and apart from the kabuliyat (Ex. 4). This has been established in the present case by the admitted payment and receipt of rent and is implied by law from the said admitted circumstance. The terms of this "implied" or "presumed" tenancy would have to be found from admissions of the parties, if any, aided by implications and presumptions of law. So found, they would not be hit by section 91 of the Indian Evidence Act.

Having indicated the approach. I turn now to the facts of the present. case. Admittedly, the petitioner went into occupation of the disputed land for residential purposes and remained or continued in such occupation for several years on payment of rent to the opposite parties and/or their predecessors. This payment of rent and receipt thereof are admitted and so also the further fact that the payment receipt of rent was on the monthly basis according to the Bengali calendar From these admitted facts, it is to hold that a tenancy arose between the parties by implication or presumption of law. The terms of this implied tenancy will have to be found, as already stated, from legal presumptions, statutory or otherwise, arising from proved or admitted facts and circumstances and not incosistent with or contradicted by any of the admitted or proved facts or circumstances of the case. The statutory presumption arises from section 106 of the Transfer of Property Act. The purpose of the tenancy being admittedly residential and, there being no provable or valid contract to the contrary, it would be a tenancy from month to month. "Unless there is anything repugnant to the subject or context", this month or the tenancy would be "a month reckoned according to the British calendar" under the definition section 2(4) of the General Clauses Act, 1868, which was reproduced almost verbatim in the corresponding section 3(33), now 3(35) of the later Act of 1897. The repugnancy, however, is afforded in this case by the admitted payment and receipt of rent according to the Bengali calendar month which leads to the natural presumption or inference of a tenancy according to the Bengali calendar. In the absence of circumstances, pointing to the contrary, a tenancy, of which the rents are payable according to the Bengali calendar months, would be governed by the Bengali calendar. Vide in this connection the case of Raj Behari Nath v. Kailas Chandra Dutt (5) (22 C.L.J. 78), and the case of Kesoram Poddar v. Banamali Dey, (6) (45 C.L.J. 249). This presumption would be rebutted and the inference would be excluded if circumstances show otherwise. For this purpose, namely, for contradicting this natural presumption or inference the defective lease or the document, embodying the terms of the defective contractual lease, which is obviously the kabuliyat Ext. 4, in the present case, would be admissible and the Court will be entitled to look into its terms for this limited purpose. (Vide Ram Kumar Das Vs. Jagadish Chandra Deb Dhabal Deb and Another, end of column one.). In the absence of any contrary indication, however, the natural presumption or inference, which is fully permissible in law, will prevail. Viewed in this light, the petitioner''s tenancy would be according to the Bengali calendar, as the presumption to that effect, as set out above, is not rebutted or contradicted but. on the other hand, supported and strengthened by the kabuliyat, Ext. 4. which speaks of a tenancy according to the Bengali calendar. This presumption affords the necessary repugnancy to.exclude the statutory English month of the General Clauses Act and. in the light thereof, the month of the petitioner''s tenancy must be held to be according to the Bengali calendar. My net conclusion, therefore, is that the petitioner''s tenancy was a tenancy from month to month according to the Bengali calendar.

I do not think that the above process of reasoning presents any conflict with the decision of the Supreme Court, cited above which, as a matter of fact, has been relied on by me in support of the same. That process does not involve the making of a new contract for the parties, as contemplated in that decision and condemned by it. Clearly enough, the Supreme Court relied upon the "presumed" or "implied" tenancy, arising from the fact of possession, coupled with payment and acceptance of rent, when the express contractual lease failed to be operative in law due to non-compliance with section 107, third paragraph, of the Transfer of Property Act. This new tenancy which arose by implication of law was, no doubt, in the ultimate analysis, founded on an implied contract which as I shall explain in the course of this judgment, was not the invalid express contract between the parties and was, to that extent, a "new contract", but it seems to me that their Lordships did not use the said phrase in that broad sense but used it in the sense of a contract, the terms of which even inconsistent with) the corresponding terms of the intended or express contract which turned out to be invalid under the law. This receives confirmation from the observations made by their Lordships in the concluding lines of column one of page 27 of the report in the light of their earlier discussion, requisitioning section 107, third paragraph, of the Transfer of Property Act, to rule out "the contract to the contrary" which would'' otherwise have excluded the statutory presumption u/s 106 of the Transfer of Property Act, and I am inclined to think that the objection which their Lordships had in mind, while applying the new contract theory, and which they sought to emphasise, had reference only to those terms of the implied contract, otherwise inferable, which would have been contradicted by or inconsistent with "the proved or admitted facts and circumstances of the case" including within that expression the terms of the invalid express contract between the parties, provable for this limited purpose. Taken in this light, the "new contract" theory would not present any difficulty in the adoption of the view which I have taken in this case.

To explain myself I would just add a few more words.

A contract may be a new contract because its terms are different or simply because it is another or a separate contract. In this latter case the terms of this new contract may or may not be the same as the original or given contract but identity of terms would not make it any the less a new contract. If their Lordships of the Supreme Court had this latter meaning in mind they would have ruled out the implied contract at once on the new contract theory without reference or recourse to section 107 of the Transfer of Property Act and the discussion at the top of page 27 of the AIR report would have been unnecessary. The "new contract" theory, as applied by their Lordships, thus appears to rest upon the other sense of that expression, that is, upon contradictions between the implied contract and the proved or admitted facts and circumstances (including invalid express contract). and the real test appears to be whether the particular terms of the implied contract of tenancy, which is sought to be inferred and which is otherwise inferable in the particular case, is inconsistent with any of those proved or admitted facts and circumstances. If it is, the "new contract" theory would hit it and it would be excluded as the necessary inference cannot be made or, if I may put it in another way, the implication or presumption which would be necessary to establish or support that term would not arise or would be rebutted and thus totally unavailable. The result would be that the particular inference cannot be made and the relevant terms cannot be proved or established. If, on the other hand, the term is not inconsistent with the proved or admitted facts and circumstances, it being otherwise inferable, there would be no difficulty in proving or establishing it as a term of the "implied" or "presumed" tenancy.

Throughout my detailed discussion I have proceeded on the footing that the implied contract of tenancy, arising from payment and receipt of rent, is not factually the same as the invalid express contract between the parties but is somethnig separate and distinct and I shall now give my reasons for that view. The express contract is invalid in law. It cannot, therefore, be made to operate in the garb of an implied contract. If, again, the implied contract be the same--factually and not merely as to its terms--as the invalid express contract, proof of its terms would be excluded by section 91 of the Indian Evidence Act. In no case, then, would the terms of the implied contract be provable in law. This would be contrary to the trend of discussion in the Supreme Court case, cited above, where their Lordships devoted considerable space to the ascertainment of the terms of the implied contract of tenancy. That enquiry would have been quite purpose less if the two contracts were factually the same, in which case section 91 of the Indian Evidence Act would have doubtless excluded proof of their terms, and, in that context, the absence of any reference to that section in the judgment of the Supreme Court would have been rather surprising and the earlier judgment of the Privy Council in the case of Port Canning and Land Improvement Company Limited v. Katyani Debi (3) (L.R. 46 IndAp 279), would also have been open to the same criticism. Indeed, the entire discussion on the terms of the implied tenancy at pages 26-27 of the AIR SCc 282 of 46 I.A., would have been fruitless and irrelevant in view of section 91 of the Indian Evidence Act, if the implied contract of tenancy was factually the same as the express contract between the parties which had turned out to be invalid in law, and, in my opinion, the said two decisions are inconsistent with the view that the two contracts are factually one and the same, and, there being nothing in principle which would compel me to adopt that view. I have little hesitation in holding the contrary which obviously steers clear of all possible mischiefs of section 91.

It is also pertinent to observe here that any other view of the law would be beset with insurmountable difficulties. From payment and receipt of rent the tenancy may be established but, if its terms cannot be proved because of section 91 of the Indian Evidence Act, section 106 of the Transfer of Property Act would not be of much help. To apply the rule of constructions, laid down in that section, it is necessary to find out the purpose of the tenancy. This, however, would, in most cases, be a term of the tenancy or the contract of tenancy and thus not provable in law ex hpyothesi. We must, therefore, rest content with a tenancy, the nature and duration whereof cannot be ascertained from contract or even with the aid of section 106 of the Transfer of Property Act. This would create a somewhat impossible situation and would largely defeat the purpose of that section which, along with contracts to the contrary, was intended to be exhaustive on the above two questions of the nature and duration of tenancies under the Transfer of Property Act.

I may add further that, from the records before me. it does not appear that it had ever been disputed, before the matter came up to this Court, that the petitioner''s tenancy was according to the Bengali calendar. On the other hand, that appears to have been the accepted case of both the parties and their pleadings sufficiently confirm this view.

I, accordingly, hold that the petitioner''s tenancy was in law a tenancy from month to month according to the Bengali calendar and that it was duly terminated by appropriate notice to quit and the learned Controller''s order, allowing ejectment in terms of the Calcutta Thika Tenancy Act, which has been affirmed by the learned Appellate authority, is correct.

In the result, the Rule is discharged. The learned Controller will now proceed further in the matter in accordance with law in terms of his order, dated March 16. 1953. There will be no order for costs in this Rule.