Manindra Chandra De vs Sm. Gita Sen

Bijayesh Mukherji, J.—The facts which have led up to this appeal by the tenant-Defendant, Manindra Chandra De and Brothers, a firm, from an appellate judgment and decree of affirmance, concerning an action in ejectment from part of 1 Fern Road, Ballygunge, admit of a clear dischotomy. The dividing line is furnished by a specified date, August 25, 1952. The events which happened prior to this date fall in one class. And the events which happened on that date and after fall in another. Fortunately, none are in their aim of controversy as we have it on the authority of the learned Advocates appearing for both the parties.

A. Prior to August 25, 1962.

One Ajlit Kumar Sen, the owner of 1 Fern Road, let in the Appellant as a tenant in 1948, as respects three rooms therein on a rent of Rs. 190 a month according to the English calendar. Rent was paid and accepted amicably upto 1960, as Manindra Chandra De, the tenant-Appellant''s witness No. 3 and the sole proprietor of Manindra Chandra De and Brothers since 1367 B.S. (1961), says on cross-examination.

Now, what happened in 1960? On May 21, 1960, Ajit Kumar Sen mortgaged 1 Fern Road to Manindra Chandra De and thereby secured from him a loan of Rs. 10,000. Whatever be the reason, it looks apparent that Ajit Kumar Sen''s financial position was going from bad to worse from then onwards. For, on March 17, 1961, Benoy Sen got a decree against him for Rs. 15,528 odd in suit No.''1428 of 1960 of this Court. And a little less than two months later, to be exact, on May 5, 1961 Benoy Sen got still another decree for Rs. 20,760 against Ajit Kumar Sen in suit No. 835 of 1960 of this Court. Then on August 22, 1962, Manindra Chandra De, the mortgagee of Ajit Kumar Sen, as respects his 1 Fern Road property purchased the two decrees of Benoy Sen against Ajit Kumar Sen, one for Rs. 14,000 and another for Rs. 18,000. A deed of assignment was gone in for that, Benoy having executed it in favour of Manindra. It was put to registration on August 24, 1962.

This is all that had happened upto August 24, 1962. The only thing that remains to be mentioned is that, presumably because the relationship of debtor and creditor was superadded to the relationship of landlord and tenant between Ajit and Manindra, the amicable payment and acceptance of rent was no more and Manindra started depositing the rent of Rs, 190 a month, for the demised portion of 1 Fern Road, in the forum of the Rent Controller from December 1960, as is evidenced by the relative challan, Ex. A(47), there being seventyeight such challans in all, Exs. A to A(77), evidencing deposit of rent as above from December 1960 to May 1967.

To sum up, the indebtedness of Ajit Kumar Sen, the landlord of the demised parcel of 1 Fern Road and therefore, premises within the meaning of Section 2, Clause (f) of the Premises Tenancy Act. (XII of 1956) to his tenant thereof, Manindra Chandra De, stood on August 24, 1962 as under:

(Table Missing Page No. 543) B. Events which took place on August 25, 1962 and aftez.

Having thus been involved in debts to the extent of Rs. 46,000 and a little more by August 24, 1962 and that too to his tenant Manindra, Ajit Kumar Sen, the landlord and debtor, created a deed of trust on the very next day, to wit, on August 25, 1962, in favour of his three sons, Amitava, Arijit and Aurobinda and his wife Sm. Gita Sen. The trust-deed the author of which is Ajit Kumar Sen and which was put to registration on November 24, 1962, is Ex. I. It needs looking into a little closely.

Leaving aside the introductory part which describes the deed, the date thereof (August 25, 1962), the names of parties thereto, already noticed: Ajit Kumar Sen, ''Author of Trust of the one Part'' and his sons and wife, ''the Trustee(s) of the other Part'', let us come straight to the recitals. The narrative recital narrates the title of the author of the trust to 1 Fern Road, as respects which the trust is created:

Whereas the author of the Trust is absolutely seized and possessed of or otherwise well and sufficiently entitled to the immovable property fully described in the Schedule hereunder....

What is fully described in the schedule is:

All that partly two storied and one storied building being premises No. 1 Fern Road, P.S. Ballygunge...measuring 12 cottas 7 chittaks and 12 sq.ft. of land, consisting (of) 18 rooms and verandahs and vacant land....

How it is butted and bounded by is set out too. Thus ends the narrative recital read with the schedule to the deed of trust.

Then comes the introductory recital stating the necessity for such a deed:

And whereas the author of the Trust has fallen to a victim of serious and troublesome and painful dicease (disease?) and has been made invalid and incapable of looking after and managing the said property and other matters and-affairs relating thereto....

Herein, therefore, is the reason of the trust-deed, as put in by the author of the trust, Ajit Kumar Sen himself. He has fallen a victim to serious, troublesome and painful disease which has made him invalid and incapable of looking after 1 Fern Road. Hence the trust.

Now is reached the operative part of the trust-deed with the testatum or witnessing clause in the beginning:

Now this deed witnesseth that in pursuance of the said desire and in consideration of the premises the Author of the Trust the said Ajit Kumar Sen hereby conveys, transfers and assigns unto the said trustees 1 Fern Road,

the description of which is repeated here; and reference is made as well to the schedule to the deed (see para. 7 ante). Along with I Fern Road go to the trustees "all rights, privileges, rights and right of easement and rights appurtenant (appurtenant?) thereto", just the general words invariably put in by way of abundant caution.

Then follows the habendum along with the terms and conditions imposed:

to Hold the same to the use of the Trustees upon the following Trust and subject to the conditions, powers, privies and declarations hereinafter contained. And it is hereby declared that the Trust property shall be called and known as Ajit Trust Estate....

More, the trustees are to manage the Ajit Trust Estate ''legally and properly''. They are ''To perform'' too twelve terms and conditions listed one after another as (a) to (1). Amongst these mention may be made only of the following:

(i) Ajit and his wife Sm. Glita Sen, durant& vitaj i.e., so long as they are alive, shall have the right to live in any part of 1 Fern Road rent free and shall be maintained too by the trustees: terms (a) and (c). [But Sm. Gita Sen is herself a trustee.]

(ii) The trustees will realize rents from the tenants of 1 Fern Road with powers to eject the tenants and to induct new ones: term (b).

(iii) E The trustees shall have no power to sell, mortgage or transfer by way of lease or otherwise or create any encumbrance upon the property or portion of it in case of unavoidable necessity: term (d).

(iv) Ajit Kumar Sen, the author of the trust, reserves his right to continue the proceedings, concerning the trust estate, that pend in Courts, through his lawyers and at the cost of the trust: term (e).

(v) Of the four named trustees--Ajit Kumar''s three sons and wife--the first trustee, son Amitava, is in foreign country and the third, son Aurobinda, is a minor. It is, therefore, declared that their mother Sm. Gita Sen, the fourth named trustee, shall manage the trust-estate on their behalf, so long as Amitava is in foreign country and Aurobinda is a minor.

Such then is the trust-deed, on its great outlines, executed by Ajit Kumar Sen on August 25, 1962, just a day after registration of assignment by Benoy Sen of his two deerees for Rs. 46,188 odd against Ajit Kumar Sen in favour of Manindra Chandra De, already a creditor of Ajit Kumar Sen to the extent of Rs. 10,000 by virtue of the prior mortgage of May 21, 1960. Such is the trust-deed of August 25, 1962, put to registration on November 24, 1962, within three months from the date of its execution, a month earlier than the terminus ad quem of four months set by Section 23 of the Registration Act (XVI of 1908). So, nothing turns on that. That, on which the fortunes of this litigation turn, is the effect at law (i) of the notice dated December 15, 1962, on behalf of Ajit Kumar Sen calling upon the Appellant to pay rent to the trustees, no less (ii) of the deed of trust itself in the wake of which such notice went out, in the light of all circumstances this litigation reveals.

That this is so appears to be manifest from the reply dated February 17, 1963, on behalf of Manindra Chandra De, by then the sole proprietor of Appellant firm, to such notice of December 15, 1962. The reply is Ex. F. The stance taken by Manindra, inter alia, is:

(i) In full knowledge of assignment, in my favour, of two decrees by Benoy Sen in the High Court against you, for which you were served with notice from the High Court, you ''designed a plan'' in the garb of a trust-deed to defraud me of my dues in terms of the two aforesaid decrees.

(ii) The date and detail of such trust-deed you have not given me, though I had repeatedly asked you to do so.

(iii) I am not bound by the trust-deed, collusive and fraudulent.

(iv) I ignore it and continue to deposit rent with the Rent Controller in your name, your ownership of 1 Fern Road having not ceased by such a tainted deed and the relationship between you and me as that of landlord and tenant having not ceased either.

Manindra Chandra De was not sitting idle before having caused a reply to be sent to Ajit Kumar Sen on February 17, 1963, in the manner just noticed. He levied execution of the two decrees he had become the assignee of and in due course the decrees came to the Alipore Court within the jurisdiction of which 1 Fern Road is. Numbered as Money Execution cases 1 and 2 of 1963, they proceeded as usual and notices under Order 21, Rule 22 of the CPC as also writs of attachment were issued on or about January 4, 1963 and served by February 4, 1963, when the judgment-debtor Ajit Kumar Sen appeared by a vakalatnama and prayed for time to file objection. The executing Court did grant him time until February 19, 1963. At the same time the executing Court directed issue of notice under Order 21, Rule 66 of the Code of Civil Procedure, fixing March 4, 1963, for return and orders vide the relevant extracts from the order-sheets in Money Execution cases 1 and 2 of 1963, Exs. B, B(1), B(4) and B(5), some duplications being there.

By February 19, 1963, the time granted to the judgment-debtor Ajit Kumar Sen to file objections, whether objections were in fact filed or not, does not appear from the extracts from order sheets exhibited at the trial. What does appear, however, is that Sm. Gita Sen, wife of the judgment-debtor Ajit Kumar Sen, did file on the strength of the trust-deed an application under Order 21, Rule 59 of the Code of Civil Procedure, on or about February 15, 1963, in each of the two Execution cases numbered 1 and 2 of 1963. They were numbered as Miscellaneous Judicial cases 17 and 18 of 1963, vide Exs. B(2) and B(3), for example, read with Exs. B(7) and B(8)--extracts from order-sheets all.

Such execution apart, levied in Alipore Court in January 1963, of the two assigned decrees by Manindra, he sued Ajit Kumar Sen for recovery of Rs. 10,000 as principal plus interest on the foot of the mortgage of May 21, 1960, by sale of the mortgaged property, to wit, 1 Fern Road. The dale he sued so appears to be June 12, 1963, going by the date of institution of the suit as recorded in the preliminary decree of the mortgage suit, Title Suit No. 65 of 1963: Ex. B(12).

Leaving aside Manindra''s execution cases and mortgage suit for the time being, let us come to the present suit: Title Suit No. 278 of 1963 by Sm. Gita Sen and other trustees on July 8, 1963, for ejectment of the Appellant following a combined notice datec April 25, 1963, Ex. 2, by which the Appellant was asked to quit or expiry of the month of June 1963 and to treat this as a notice of suit as well, u/s 13, Sub-section (6) of the West Bengal Premises Tenancy. Act (XII of 1956).

It will be a profitless task to review all the grounds upon which an action in ejectment as this is grounded. Because they are no longer insisted upon either at the trial or in appeal, whether before the appellate Judge or before us. The point which is insisted upon much too much is that the Appellant is a defaulter. Rents were deposited in the name of Ajit Kumar Sen and deliberately too, in defiance of the clear notice of December 15, 1962, calling upon the Appellant to pay rent to the trustees, the Plaintiffs, now Respondents: see paras. 11 and 12. Deposit in the name of Ajit is not deposit in the names of the landlords, the trustees. So, it is said, default is plain to be seen.

What such an approach is like, strong or weak, in all circumstances this litigation reveals, will be considered in due course. But let the narration of all the circumstances be completed first. Only some of them have been reviewed so far. The vicissitudes through which passes this action in ejectment, Title Suit No. 278 of 1963 (out of which the appeal we are adjudicating now arises), may just be stated in brief. Filed on July 8, 1963, as noticed, it culminated in an ex parte decree on March 4, 1964. That a suit as this, over part of 1 Fern Road, so important a locality in South Calcutta, where the Appellant, not only the tenant but also the creditor of the landlord to the extent of a little less than half a lakh of rupees, has been carrying on business for some fifteen years, would end so, appears to be, to put it mildly, very surprising. On June 19, 1964, the trustees in execution of the ex parte, decree of March 4 previous drove away the Appellant and obtained possession of the portion of 1 Fern Road demised to the Appellant. That very day, viz. on June 19, 1964, the Appellant made a bee line for the Court and prayed for setting aside the ex parte decree under Order 9, Rule 13 of the Code of Civil Procedure. On the next day, June 20, the Court granted an interim injunction on the prayer of the Appellant restraining the Respondents from letting out the disputed premises or parting with possession of any part thereof. On January 9, 1965, the interim injunction was made absolute. On July 14, 1965, a Bench of this Court upheld this injunction making it clear, however, that the restraint upon the Respondents would stand if part of the demised premises were not already let out to M/s. G.S. Brothers. On September 15, 1965, the application under Order 9, Rule 13 was allowed after having been heard on evidence of both parties and the ex parte decree was set aside on the basis of findings the more important of which are tabulated below:

(i) The process-server Nitai Gopal Sarkar submitted a false report regarding the service of summons upon the Appellant.

(ii) The postal peon made false entry on the envelope (containing the summons sent by registered post) and there was no service of summons upon the Appellant by registered post either,

(iii) In view of Manindra''s claims against Ajit Kumar Sen in terms of two assigned decrees (noticed above) and also on account of the mortgage, the suit on the foot of which had by then ended in a decree, it is not at all believable that the Appellant would suffer ejectment suit to be decreed ex parte.

Such indeed is the order recorded by the Munsif on September 15, 1965: vide order No. 68 in the order-sheets. A revision taken against that order came to little. A rule was issued, no doubt, but only to be discharged on July 21, 1966. And on July 25, 1967, restoration of possession of the demised premises to the Appellant was ordered.

The ejectment suit, so restored, was decreed over again, but on contest on August 29, 1967. An appeal from that decree failed on April 19, 1968. Hence this second appeal.

What weighs with the learned Judges in the Courts below, in having decreed the suit so, will be noticed as the contentions advanced before us in this appeal are noticed. Now, let the review of the remaining facts be completed. Manindra''s mortgage suit, Title Suit No. 65 of 1963 (para. 15), culminated in a preliminary decree for sale of 1 Fern Road, the mortgaged property, on August 31, 1964, as is evidenced by the certified copies of the judgment and the decree, Exs. B(11) and B(12), The claim cases under Order 21, Rule 58 of the CPC by Sm. Gita Sen (para. 14) were dismissed on contest on August 14, 1965.

Only one more class of facts, not in the realm of controversy as we have it from the learned Advocate for both the parties remains to be noticed. The trust-deed, be it recalled, is dated August 25, 1962. Rent deposited by Manindra for the premises in controversy for September 1962 in the name of Ajit Kumar Sen was withdrawn by him through his pleader J.P. Roy on November 20, 1962. And so it went up to the rent of November 1962, withdrawn by Ajit Kumar Sen through his pleader J.P. Roy on January 14, 1963, as it appears from the certified copies of the relevant withdrawal forms and connected orders, in the office of the Rent Controller, sought to lead by way of additional evidence before us, by an affidavit dated September 20, 1968, filed in Court on December 5, 1968 and taken in as additional evidence too, the Respondents through their Advocates admitting such withdrawal.

Closely connected with this class of facts in the realm of admission, there is still another class which elevates itself to first-rate evidence coming under the category of admission by non-traverse. What goes in the preceding paragraph shows deposit of rent by Manindra Chandra De in the forum of the Rent Controller upto November 1962 to the credit of Ajit Kumar Sen, as also withdrawal by him (Ajit) through his lawyer. It will be recalled, as stated in para. 4 ante, that Manindra Chandra De has been depositing rent so ever since December 1960 and upto May 1967 as evidenced by challans of undoubted authenticity, Exs. A to A(77). Ajit Kumar Sen withdrew such deposits upto November 1962 as just noticed. Now, what happened to these deposits from December 1962 to May 1967 and adding two more months deposits after that, i.e. upto July 1967? December 1962 to July 1967 make fiftysix months. Deposit of Rs. 190 a month for these fifty-six months makes a total of Rs. 10,640 (190 multiplied by 56). Now, we ask again, what happened to this sum of Rs. 10,640? The Appellant tells us, by an affidavit dated March 14, 1969, of its employee and tadbeerkar Ramgopal Goswami that not an inconsiderable sum as this was attached and withdrawn by Ashoke Pal Chowdhury, a creditor of Ajit Kumar Sen and that it was adjusted against his (Ajit''s) debt. Ajit Kumar Sen''s wife and sons, the Respondents, do not deny this. More, on enquiry by us we are told by Mr. Roy, their leading Advocate, that no affidavit-in-opposition will be made use of. Hence, we say, this class of facts comes under the category of admission by non-traverse.

From this cloud of facts emerges the first point on which Mr. Ghosh opens the appeal before us. The point is: here is a trust-deed, so simulate, by which Ajit Kumar Sen, its author, transfers 1 Fern Road with intent to defeat his creditors of whom Manindra Chandra De, the real Appellant before us, is one. So, by such a fraudulent transfer the so-called trustees Sm. Gita Sen and sons cannot be elevated to the status of the Appellant''s landlords as respects the portion of 1 Fern Road demised, the premise in controversy. And once that is that, the very basis of the Respondents'' action in ejectment goes. Necessarily, no question can there be of the Appellant having been a defaulter ever, inasmuch as rents have been consistently and regularly deposited to the credit of Ajit Kumar Sen, the maker of such a sham deed, but the true landlord, in the forum of the Rent Controller.

The learned Judges in the Courts below have not passed such a consideration by. The trial Judge points out and very rightly too, that even if the instant transfer be regarded so it is only voidable at the option of the creditor so defeated. That indeed is what Section 53 of the Transfer of Property Act (IV of 1882) provides for. But the Appellant''s position is that of a tenant in this litigation not that of a creditor. It is, therefore, a position which a fraudulent transfer, assuming the trust-deed to be so, will not affect. So holds the trial Judge. On appeal, the appellate Judge holds as much, making it clear that the Appellant seized of two capacities, one as a creditor of Ajit Kumar Sen and another as a tenant of the premises in controversy, can avoid the trust-deed, if it is fraudulent, only as a creditor not as a tenant, just what the Appellant is in the litigation on hand.

Mr. Roy, appearing for the answering Respondents, endorses the view taken by the learned Judges in the Courts below and points to the fourth paragraph of Section 53, Sub-section (1) of the Transfer of Property Act, by which a representative suit by a creditor for the behoof of all creditors is contemplated.

Nobody denies that. Certainly that is a way open to a creditor to save himself from a wily debtor who transfers his immoveable property so that it cannot be swept away by the horde who had helped him with loans of money in his hour of need. But is that the only way open to such a one? Are all other ways barred against him? Can he not press into service a plea to avoid a fraudulent transfer also by way of defence? Even if the Court is satisfied about the fraudulent character of the transfer, the Court will lie by and say to the creditor: "Bring a suit under the fourth para, of Section 53 and then it will be seen what can be done for you. Here, you figure as a Defendant and worse still, as a tenant Defendant at that (as if by being a tenant he ceases to be a creditor) and your adversaries will get what they want, even though the very deed upon which they rest their claim is fraudulent." In sum the Court will then assist a party recover possession on the strength of a deed which, the Court is satisfied, is fraudulent. But does not the Court rule with a rod of iron to run down every manner of fraud?

Questions as these--and very important questions they are-- have to be remembered in deciding this appeal. But let it first be decided upon evidence what the trust-deed of August 25, 1962, is like, fraudulent or innocent. The learned Judge in the Courts below have assumed it to be fraudulent. That will not do. A clear and firm finding there must be whether it is fraudulent or not. Since the learned Judges and the appellate Judge in particular do not find so, it is for us u/s 103 of the CPC to determine this issue of fact, so necessary for disposal of the appeal on hand the evidence on record being sufficient to sustain a clear finding.

The background in which the trust-deed comes into being had been depicted in the foregoing lines (paras. 3-5). It tells, financially embarrassed Ajit Kumar Sen, indebted to the extent of a little less than half a lakh of rupees to Manindra alone, appearances are in favour of his having been indebted to others as well, Benoy Sen and Ashoke Pal Chowdhury for examples, executed the deed of trust on August 25, 1962, in favour of his near and dear ones, none else than his wife and sons and that too after the registration was had on the day previous of assignment of two decrees of Benoy Sen against him to the tune of a little more than Rs. 36,000 in favour of Manindra, Ajit''s mortgagee as respects 1 Fern Road. This in itself clearly appears to be evidence of fraudulent intention of the part of Ajit, the author of the trust. This in itself appears to be good enough evidence of such a deed having been a mere cloak for retaining 1 Fern Road for Ajit''s benefit and enjoyment.

The very terms of the trust-deed analysed above (paras. 7-10 and para. 10 in particular) confirm that this is so. Whereas the introductory recital, the office of which is to state the reason of the deed, ascribes such reasons the serious, troublesome and painful disease of Ajit Kumar, a disease which has made him invalid and incapable of looking after the property, that is, 1 Fern Road (para. 8), the habendum (para. 10), with so many terms and conditions, provides by term (e) that Ajit Kumar (though so ill, invalid and incapacitated), reserves his right to go on with all pending proceedings in Court through his lawyers but at the costs of the trust estate. It then comes to this, Ajit Kumar is, at one and the same time, incapable of looking after 1 Fern Road, a simple enough property, but capable of looking after all manners of pending litigations in Courts touching the estate, complicated affairs, all through his lawyers though. Denuded of verbiage, all it means, in plain language, is that Ajit Kumar Sen after the trust-deed retains the power he had before the trust-deed to look after all pending litigations and proceedings in Courts. Not that he completely eliminates himself, as a bona fide transferor does, by a self-denying ''ordinance'' which a sale-deed is, but this trust-deed is not and need not be too.

More is yet to come. The habendum part, followed by terms (a) and (c), provides that Ajit Kumar shall have the right to live rent free in any part of 1 Fern Foad and shall be maintained too by the trustees (para. 10). The plain meaning of such terms is that Ajit Kumar remains after the trust, what he was before the trust, having the complete freedom to live in any part of 1 Fern Road as if the house were his own. Such authoritarian powers apart, about his residence, the usufruct is his too, so that he can maintain himself.

Thus, for all practical purposes Ajit Kumar remains after the trust-deed just what he was before the trust-deed. But it may be though since 1 Fern Road vests after the trust in the trustees, it will be for them and not for Ajit Kumar, the author of the trust, to sell or otherwise dispose of the property itself. And if that happens, Ajit Kumar''s rights and privileges are gone. Why say then he remains after the trust, just what he was before the trust? But that cannot happen, because by term (d) it is provided that even in case of unavoidable necessity the trustees shall not sell, mortgage or lease 1 Fern Road or any part thereof (para. 10 again).

In providing so, the trust-deed goes much more than the one the case of Raja Jagat Kishore Acharjya Chowdhury and Others Vs. Kulakamini Dasya and Others, reveals. There Kulakamini, the wife of a rich money-lender, ran her husband''s estate well enough as executrix during the minority of her two sons. Minority ceasing--the younger one attained majority in 1911, her executorship ceased and the two sons took over but thoroughly mismanaged the estate which valued at a little less than one lakh of rupees and a quarter, at the time of probate became heavily encumbered. There were other debts too. And the capital of the money-lending business (a little less than a lakh: Rs. 70,000 to Rs. 80,000) was gone, mostly because of a foolish and profitless pursuit, by the older of the two sons in association with none too good companions, of a forest lease, in 1923 from Raja Jagat Kishore on a rent of Rs. 50,000. The Raja''s dues could not all be met. Result, suit by him, decree, execution against the valuable immoveable properties, of the two sons and in the end, delivery of possession taken by the Raja on July 5, 1924.

To undo this, to recover possession of all that the Raja had taken and part was sold away by him, meanwhile Kulakamini, who had stepped out in 1911, stepped in by a suit on June 15, 1936 against the Raja and that too as a trustee by virtue of a trust-deed bearing date April 28, 1914, purported to have been executed in her favour by her sons. In such a trust-deed Kulakamini qua trustee had no power either to sell or mortgage the trust property or part thereof, just as the trustees in the case on hand have not. But in case of necessity Kulakamini qua trustee could go in for a loan upto Rs. 10,000 on mortgage if she was so advised by four named persons, nothing like which the trustees in the case before us can go in for. Yet the trust-deed, bearing date April 28, 1914, in favour of Kulakamini by her two sons, went down as a fraudulent device for the purpose of defeating or delaying the creditors of theirs, namely, hei two sons, no less as a cloak to shield their properties. And it went down so for three reasons:

One, at the back of the turst-deed of April 28, 1914, was the heavy indebtedness of the two sons, secured and unsecured to the extent of Rs. 72,000, coupled with the total disappearance of the capital of the money-lending business amounting to Rs. 70,000 to Rs. 80,000 all before the deed, considerations which forced the parties to foresee that the properties of the son, the lessee of the Raja, so far unencumbered till then, would be swept away by the Raja in'' execution of his dues on account of the lease.

Two, the terms of the trust-deed, considered along with the financial position of the two sons, revealed inter alia that the trustee was to maintain those two sons and their family and to pay their debts too out of the income of the trust property, but yet without power to sell or mortgage even part thereof subject to one minor exception just noticed.

Three, the subsequent dealings, such as fictitious mortgages, were only to serve as a second line of defence if the plan hatched and rested on the trust-deed happened to fail, execution of leases by Kulakamini as trustee, registration of her name, as such, etc., having been acts only for the purpose of keeping up appearance.

Three, such reasons fit pretty nicely the facts before us too but of course mutatis mutandis. Indeed, two of them have been covered already. At the risk of repetition, here are they.

One, the heavy indebtedness to the tune of a little less than half a lakh of rupees, to be exact Rs. 46,188, nothing to say of Ashoke Pal Chowdhury, started Ajit Kumar Sen in the face before execution of the trust-deed by him on August 25, 1962. It must have been foreseen by him that neither the mortgagee Manindra nor the decree-holder Benoy Sen, armed with two deccees, nor the assignee decree-holder Manindra, so armed, would lie by and that his 1 Fern Road property was sure to be proceeded against for realisation of such dues.

Two, such indebtedness, considered together with the terms of the trust-deed of August 25, 1962, leads to the conclusion that the rights and privileges Ajit Kumar had before the trust-deed are just the rights and privileges he continued to have after the trust-deed, such as, the right to reside in any part of 1 Fern Road rent-free, the privileges to be maintained by the trustees, certainly out of the income of 1 Fern Road, the trustees being rendered destitute of any power to sell, mortgage, or lease 1 Fern Road so as to make Ajit Kumar immune from any inroad into his rights and privileges. What then is the difference between Ajit Kumar as owner of 1 Fern Road before the trust and Ajit Kumar the highly privileged person as respects 1 Fern Road after the trust? Practically nil, so far as he is concerned, but very, very much so far as his creditors are concerned. A creditor, if unsecured and Manindra in that too as assignee decree-holder, cannot lay his hands on 1 Fern Road converted into a trust property. It is, therefore, plain that the trust-deed was executed with intent to defeat creditors like Manindra whose just claims would meet and give in to resistance offered by the shield of such a deed.

The third reason remains yet. The facts set out in paras. 22 and 23 ante have only to be remembered in order to be convinced what a sham the trust-deed is. Such subsequent dealings by the author of the trust militate against the very notion of a trust. It is only a smoke screen to keep the creditors away, though at least one creditor Ashoke Pal Chowdhury saw through it and got away with the money deposited by Manindra, in Ajit''s credit, even after the trust. Will Manindra then have to burn his candle at both ends and for the benefit of Ajit, his landlord and debtor, to the extent of nearly half a lakh of rupees? He deposits and deposits to the credit of Ajit the rent of Rs. 190 a month, for fiftysix months on end, from December 1962, when he was told by Ajit: "I am no longer your landlord, the trustees are." And for this he earns the opprobrium of a defaulter with its inevitable consequence. But when it comes to Ajit''s creditor realising his dues, he attaches and realises these very deposits to Ajit''s credit as the landlord, running into Rs. 10 640, Ajit, to put it very mildly, acquiescing in it. This is an intolerable situation which no Court can put up with. And it brings into bold relief the utter hollowness of the trust-deed. Surely, Ajit cannot have it both ways. Add to this an ejectment suit, the plaint of which is Ex. B(10), brought by Ajit as owner of 1 Fern Road, on November 23, 1961, before the trust-deed of August 25, 1962, against a tenant, Jagadish Basak by name, of part of 1 Fern Road. Ajit lost the suit and preferred an appeal on September 20, 1963, long after the trust-deed. The memorandum of that appeal is Ex. B(9). By term (e), in the habendum part of the trust-deed (para. 10 ante), his right is no doubt there to continue a pending litigation "through his appointed and authorised lawyers at the cost of the Trust." Let him do so. But why the appeal in his name he having divested himself of his ownership of 1 Fern Road? To continue a pending litigation at the cost of the trust through Ajit''s trusted lawyers is one thing. And to file an appeal as Appellant is another. If the trust is bona fide, he is not the Appellant; he cannot be. The trustees are the Appellants; they can only be. So Ajit himself by such conduct is regarding, the trust as non-existent, which it really is, having been bolstered up only in fraud of the creditors.

Both the learned Judges in the Courts below feel overborne by the mutation of the trustees'' names in the books of the Corporation of Calcutta and a tenant, Abdul Aziz by name, of 1 Fern Road paying rent to the trustees. With respect we do not view it so. We do not, as all this is only to keep up appearance. As R.C. Mitter and Akram JJ. point out in the Raja Jagat Kishore''s case (Supra) once it is held and it is so held here that the trust-deed is merely a cloak to keep creditors away, at any rate, one of its objects is so, mutation and all that have little importance of their own. They will be there they will have to be there in the very nature of the thing. As Lord Hobhouse puts it in a benami case, Uman Prashad v. Gandharp Singh (1887) 14 I.A. 127:

Indeed, it is common experience that in these benami transactions there is a mutation of names when it is intended to baffle creditors and all the proceedings which would attend a real transfer are carefully gone through, in order to throw a veil over the reality.

Just so here. Mutation and realisation of rents as trustees have been carefully gone through to baffle creditors and to throw a veil over reality, the reality being a fraudulent trust-deed to defeat creditors.

And that a creditor can raise a plea as this by way of defence, instead of resorting to a representative suit, under the fourth paragraph of Section 53, Sub-section (1) of the Transfer of Property Act, 1882, was well held in this very case, the Raja fagat Kishore''s case (Supra). Exactly a contention of this sort is mooted there, only to be rejected by R.C. Mitter and Akram JJ. as will be apparent from the following extract from their Lordships'' judgment:

We are not impressed by the argument of Mr. Bose (for the Respondent Kulakamini, the trustee) that the Defendants cannot take by way of defence the plea that the trust-deed was a fictitious deed or a fraudulent deed executed with the intent of defeating or delaying the creditors. His argument is that such a case comes within the provisions of Section 53, T.P. Act. Under that section, a document executed with that object is only a voidable one and Mr. Bose says that there were two ways open to Raja Jagat Kishore and his transferees, namely, either to institute a suit in a representative capacity for setting aside the deed or to express their intention of avoiding the deed before the suit. We do not think contention is sound. The Plaintiff (Kulakamini or Gita Sen and others here) seeks to recover possession of the property on the basis of the trust-deed, Ex. 1. That is her document of title. We think the Defendants are entitled to plead by way of defence the fact that the Plaintiff should not be allowed to recover on the basis of the said document, as the document was a fraudulent one, intended to defeat the rights of the creditors of which Raja Jagat Kishore was one. If the fraud is established, as we think that it has been established on the evidence, the Plaintiff cannot ask for relief on the basis of the said document, for, if relief is given to the Plaintiff in spite of the fact that the document was a fraudulent one, this Court would only be assisting the fraud. It is one of the fundamental duties of the Court to prevent fraud being committed. On the principles we hold that the defence urged in this cast was a defence which was open to Raja Jagat Kishore and his transferees.

What was open to Raja Jagat Kishore appears to be equally open to Manindra Chandra De. Otherwise the Court will be committing suicide in granting relief to Sm. Gita Sen and other Plaintiffs as trustees on the basis of the trust-deed of August 25, 1962, though the Court holds that, in all circumstances here, the said trust-deed is a tainted document, comes into being to serve only as a cloak for shielding the 1 Fern Road property of Ajit Kumar, the author of the trust, from the just claims of his creditor Manindra Chandra.

But, it is said, on behalf of the trustee Respondents that, in the case we are governing ourselves by, Raja Jagat Kishore exercised and enforced his right qua creditor; whereas in the case on hand Manindra Chandra, a debtor to the trust estate, in that he is a defaulter as a tenant, is not to exercise and enforce his right qua creditor, which he cannot do. With respect, we see more than one fallacy in such an approach.

First, the Raja could neither be exercising nor enforcing his right qua creditor if the trust-deed in favour of Kulakamini were a bona fide document. ''His suit against the older son of Kulakamini, Dharani and Dharani''s co-lessors, Abedulla and Jamser, was raised on January 12, 1916. It culminated in a consent decree on January 31, 1917, followed by due execution and delivery of possession on July 5, 1924, of the immoveable property of Dharani. Kulakamini, holding all the property as trustee on the basis of the trust-deed dated April 28, 1914, could not be bound by such decree and all that followed. So, the Raja was no better than a trespasser in spite of his decree and all that followed against Dharani, who had no manner of interests in what was sold, right from April 28, 1914, the date of the trust-deed in favour of Kulakamini, a stranger to the decree. The Raja could exercise and enforce his right as creditor, only because such trust-deed went down as fraudulent. Let this be not lost sight of.

Second, likewise, to say that Manindra Chandra De is a debtor to the trust estate, because of his default as tenant in payment of rent, is to beg the question. The trust estate or the trustees did not let him in as a tenant. Were that so, it would have been a sound position to take and Manindra could not be heard to deny the title of either, no matter how defective, fraudulent and even worse was their title in fact or at law: Section 116 of the Evidence Act (I of 1872). Ajit Kumar Sen let him in. He is not denying Ajit''s title either. On the contrary, he is reiterating it. He is denying instead the title of the trustees who claim to have derived their title from Ajit. Section 116 does not disentitle him to do so as is plain from the section itself. And there is the high authority of the Judicial Committee in Kumar Rajakrishna Prosad Lal Singh Deo v. Baraboni Coal Concern Ltd. (1937) 64 I.A. 311. More, he denies the derivative title of the trustees, the Plaintiffs in the Court of first instance and now Respondents, with 100 success, the very instrument of their title, the trust-deed going down as a fraudulent document. So the very premises that Manindra is a debtor to the trust estate because of his default as its tenant is false. He is not a tenant of the trust estate. And necessarily he cannot be its debtor too by non-payment of rent to the trustees to whom he owes no rent.

Third, the trust-deed of August 25, 1962, failing--and fail it must on the evidence in fraud of creditors of the author of the trust it is, the very basis of the trustees'' suit for eviction of the Appellant from the premises in controversy goes and all such considerations pale into insignificance and irrelevance too. And still to say, as has indeed been said, that Manindra Chandra, in the case on hand, cannot raise the plea of fraud, which the Raja could in the Kulakammi''s case (1), is to say the unsayable.

In sum, the first point on which the appeal has been opened before us (para. 24) is well merited and succeeds. There is no relationship of landlord and tenant between the suing party. Sm. Gita Sen and her sons qua trustees on the one hand and the party sued, simply Manindra or Manindra Chandra De and Brothers on the other. And on this finding alone the appeal will have to be upheld and the suit dismissed.

It is, therefore, hardly necessary to submit the provisions of the trust-deed to a detailed examination in the light of several sections of the Trust Act (II of 1882) as has been done at the Bar. But two other points on which the appeal has been opened must be dealt with.

The second point is, the lessor transferring a tenanted house, the tenant does not become the tenant of the transferee so long as he does not attorn to the transferee as his new landlord by paying rent to such a one amicably, or so long as he is not forced to pay rent to such a one by a decree of the Court. It completely beats us how a proposition as this can be contended for in all seriousness. We find no warrant for such an extravagant proposition which throws the transferee landlord at the mercy of a sitting tenant. Worse still, it writes off the positive and plain enactment in Section 109 of the Transfer of Property Act, which bears insofar as it is material here.

If the lessor transfers the property leased...the transferee, in the absence of a contract to the contrary, shall possess all the rights...of the lessor as to the property transferred....

Were the trust-deed of August 25, 1962, a bona fide document, the trustees, the transferees, would have possessed all the rights of the transferring lessor Ajit Kumar Sen, there being no agreement to the contrary. And one such right was the right to receive rents from the Appellant for the demised premises. So what is the difficulty? And how does come in the question of attornment over again by a sitting tenant to the transferee landlord? Section 109 provides for automatic attornment and by operation of law so soon as the transfer is complete.

The proviso to Section 109, talked so much of by Mr. Ghosh, casts no duty in the context of attornment. It only safeguards the interest of an innocent lessee who goes on paying rent to the transferor without having reason to believe that such transfer has been made. He is not to pay twice over once to the transferor and over again to the transferee. Indeed, he is under no obligation to pay rent to his lessor''s assignee if he has reason to believe that there has been no assignment. But it must be a genuine reason, not a sham one. That is what the proviso secures. Little or nothing it has to do with attornment.

The provisions of Section 109 being so plain,, it is not surprising that law reports contain but one case: AIR 1939 49 (Lahore) , where Coldstream J. holds:

A fresh attornment by the lessee to the lessor''s assignee is not necessary under the Transfer of Property Act.

But the same principle, on which no necessity of a fresh attornment is rested, the lessor''s assignee being entitled to rent from the sitting lessee by operation of law, or on completion of the transfer, is reiterated in Pashupati Nath Pal v. Durjodhan Roy Choudhury (1942) 46 C.W.N. 93 (96), where Nasim Ali J. lays down, Blank J. agreeing, the law as under,

A party to the suit who is put in possession of the property which is the subject-matter of a suit under Order 39, Rule 9, is, by virtue of his right to possess the property, also entitled to collect the rents and profits of the property in suit....

The person who becomes entitled to possess the mortgaged property by contract or by operation of law becomes the landlord of the tenants of the mortgaged property.

The authorities cited on behalf of the Appellant, with a view to making the impossible look possible, namely, that a fresh attornment there must be, whether amicably or through the coercive method under a decree of the Court, by a sitting tenant, to the landlord''s assignee, furnish striking examples of injudicious reliance upon precedents, which are either irrelevant or go against the point canvassed:

(i) Shankar Shaw v. Anukul Ch. Bose (1966) 71 C.W.N. 174 is a case where a tenant under two brothers, before partition between themselves, does attorn to the brother to whom is allotted after partition the premises in controversy by taking rent receipts from him on the footing of his being the sole landord. In that context, P.N. Mookerjee J. points out, Gupta, J. agreeing, the only effect of absence of attornment would be that the tenant would have had no further liability to the allottee brother as the new landlord if he had paid rent in the meantime to both the brothers, the old landlords. That is, in the circumstances, the proviso to Section 109 of the Transfer of Property Act going into action. That absence of a fresh attornment by the sitting tenant does not make the allottee brother any the less his landlord. As P.N. Mookerjee J, makes it clear:

It (absence of attornment) cannot, however, effect the exclusive title of the Plaintiff (which Mr. Ghosh does not contest) or the relationship of landlord and tenant, which Mr. Ghosh contests very much, though wrongly, in our judgment between the present parties.

The relationship of landlord and tenant is there between the lessee and the lessor''s assignee. And still the necessity of a fresh attornment which means acknowledgment by the lessee of the lessor''s assignee as his landlord. It looks like acknowledging then the fact that the sun rises on the east.

(ii) Uppalapati Veera Venkata Satyanarayanaraju and Another Vs. Josyula Hanumayamma and Another, , reveals a case where two competitors, each without any manner of title, compete for title on possessory strength. In that background the majority, Wanchoo C.J. (then Wanchoo J.), for Das Gupta and Shah JJ. and himself holds, the party must establish effective possession before it can succeed on possessory title and such effective possession is not established by mere paper attornment, not followed by payment of rent amicably or under a decree of the Court, Raghubar Dayal J. holding the contrary, effective attornment is not dependent on the future conduct of the tenant by way of payment of rent. Sure enough, such ratio has nothing to do with the extravagant proposition pressed before us; that there must be a fresh attornment by a sitting lessee to his lessor''s assignee in defiance of Section 109 of the Transfer of Property Act.

(iii) Pulin Behari Shaw Vs. Miss Lila Dey, is a decision of P.N. Mookerjee J. again rested on the following amongst other facts: Amulya Ranjan Dey was the owner of a certain building at Strand Bank Road in part of which, constituting a shop, Pulin Behari Shaw was a tenant. Amulya Ranjan sold ''the suit premises'' to his sister Miss Lila Dey, Pulin was then depositing rents with the Rent Controller to the credit of Amulya Ranjan with whom he (Pulin Behari) had disputes. Soon after the sale to his sister, Amulya Ranjan wrote to Pulin Behari posting him with such transfer and calling upon him to pay ''damages'' to his vendee Miss Lila Dey who, in turn, confirmed this by a letter that followed and was duly received by Pulin Behari. All this, however, yielded little result. Undaunted, Pulin Behari continued depositing rent with the Rent Controller to the credit of Amulya Ranjan. Miss Lila Dey would not also give in to such a recalcitrant tenant. She sued him in the Court of Small Causes for recovery of arrears of rent due and got a decree which Pulin Behari, the refractory, could resist no longer. Not only did he pay the decretal dues but also he continued remitting rent to Miss Lila Dey by money order.

P.N. Mookerjee J. does no more than set out these facts succinctly, if I may say so, in his judgment. Certainly, his Lordship does note, he is not called upon to lay down any law to the effect that the sitting tenant Pulin Behari must attorn afresh to his quondam landlord''s assignee Miss Lila Dey through the coercive method ofa decree of the Court, fail as he did to attorn afresh amicably. But Mr. Ghosh wants us to do just that; to spell out such law from the bare statement of facts his Lordships prefaces his judgment with. With respect, we are wholly unable to do so.

(iv) Pulin Behary Shaw Vs. Miss Lila Dey, is a Bench decision in the appeal under Clause 15 of the Letters Patent from the judgment of P.N. Mookerjee J., just noticed, Lahiri C.J. (then Lahiri J.), on the question of a fresh attornment by a sitting lessee to his lessor''s assignee--a question we are on now lays down the law as under, Guha J. agreeing:

It is true that under the Indian Law a letter of attornment is not necessary to complete the title of the assignee of the reversion. The title of the assignee is complete. What does that mean? Since the assignment, the assignor goes out, divested of his title and ceases to be the landlord, comes in the assignee vested with his assignor''s title, the title of the landlord. So, the assignee is the landlord. And still attornment afresh. What sort of a landlord does he become then?

We, therefore, reject the second point on which the appeal before us has been opened and in particular, the manner in which it has been formulated. Yet failure of this point does not mean failure of the appeal which succeeds on its own strength because of success on the first point. And such success means that there is no relationship of landlord and tenant between the trustee Respondent and the Appellant, the very trust deed which creates such trustees, going down as fraudulent.

At the same time this must be said in favour of Mr. Ghosh that, though the decision in the Letters Patent Appeal in the Pulin Behary Shaw Vs. Miss Lila Dey, does not sustain the point of a fresh attornment he is after, it lends considerable strength of the Appellant''s case rested on the fraudulent character of the trust-deed and in this way: "Amulya Ranjan was speaking to the tenant (Pulin Shaw) in two voices." One was the voice by which he let Pulin Shaw know that he was no longer the landlord but that his sister Lila Dey was. Another was the voice, after that, by which he was holding out in one his after another with the same Pulin Shaw that he was the landlord still. And Pulin Shaw, let it be recalled, continued to deposit rent with the Rent Controller to the credit of Amulya Ranjan in spite of what he was told by his (Amulya Ranjan''s) first voice. For that, he was treated as a defaulter to Lila Dey and sued as such. But Amulya Ranjan took good care to withdraw ''surreptitiously'' the deposit to his credit. Such a ''dual role'' led Lahiri J. to remark:

It is as if the deposit is invalid for the purpose of ejectment, but valid for the purpose of getting the money. It is impossible to accept such a preposterous claim which is inherent in the Plaintiff''s case.

Now, what we have said in para. 41 and be recalled. The facts before us fit this telling remark, if we may say so, with respect of his Lordships, with this difference only that Ajit Kumar, unlike Amulya Ranjan, was not holding himself out as the landlord in proceedings with Manindra Chandra. But he was holding himself out so in proceedings with Jagadish Basak and Ashoke Pal Chowdhury, even after the trust-deed. Even so, this may be said of such a one.

It is as if the deposit made by Manindra Chandra is invalid for purpose of ejectment, but valid for the purpose of satisfying the dues of Ajit Kumar''s creditor, Ashoke Pal Chowdhury.

Now, to the third and last point on which this appeal has been opened: non-service of the combined notice of ejectment and of suit. The evidence of the postman examined by the Appellant as its first witness conclusively proves tender of such notice by him right at the demised premises, 1 Fern Road, to an employee of the Appellant and refusal by such employee. The notice was sent through registered post. In the circumstances such vicarious tender to the employee is tender to the master, no matter whether the employee is the master''s agent or not, Harihar Banerjee v. Ramsashi Roy (1918) L.R. 45 I.A. 222 71. In vain, therefore, has a point been made of the employee having not been the agent of the Appellant. That apart let not casualty be made of a commonsense approach to a problem as this. Will an humble employee dare refuse a registered letter to the address of his master, as the postman says he did without the consent of his master, even if he was at the relevant time at the show-room at 226 Rasbihari Avenue, just on the other side of 1 Fern Road? The finding of fact about good service of notice come to by the two Courts of facts rests on such an approach more or less.

The decision in the Harihar Banerjee''s case, it is said, has become a back number in the context of today. Such a contention has only to be stated in order to be rejected. That apart, we have here much more than what the Harihar Banerjee''s case requires: direct evidence of the postman instead of a mere presumption.

Surajmull Ghanshyamdas Vs. Samadarshan Sur, , Mr. Ghosh relies upon, does not reach the case on hand. The ratio of the decisions rendered by P.N. Mookerjee J., A.K. Dutt J. agreeing insofar as it is material here, is, the endorsement left'' made by a postman, in itself, shows absence of tender. Indeed, how can you tender a notice to one who is not there, to one who has left? But here the endorsement is ''refused'' which naturally means that it was tendered but refused. Now, no one can take advantage of his refusal. And refusal, in the circumstances is equivalent to service: Sm. Promila Sundari Dassi v. Sm. Kamala Bala Debi (1964) C.L.J. 106, if reference may be made, without impropriety, to this decision of mine, S.K. Sen J. agreeing. The other case relied on by Mr. Ghosh is the decision of Amaresh Roy J. in Sukumar Guha Vs. Naresh Chandra Ghosh and Another, . Nothing that his Lordship lays down there militates against the view taken in the case on hand. On the contrary, the finding of good service here rests on the first mode, namely, the sending of the notice by post to the party who is intended to be bound by it. And the first mode being satisfied, as it is, no one of the other modes are necessary or relevant as Amaresh Roy J. puts it. So the third point on which the appeal before us has been opened fails too. But the appeal succeeds in view of the Appellant''s success on the first point (para. 48).

In the result, the appeal be allowed with costs throughout here and below. The judgment and decrees of the Courts below be set aside. The trustee Respondents'' action in ejectment and for mesne profits, being Title Suit No. 278 of 1963, do stand dismissed.

Salil Kumar Datta, J.

I agree.