Ramdhani Gope and Another vs C.V. Scott and Others

Mullick, J.—The decision of this appeal depends on the construction of a kabuliyat executed on the 6th January, 1894, by one Khaderan Passi in favour of Mr. James Scott in respect of 1 katha 16 dhurs of land in mauza Bankipur Jaibar. Khaderan was a seller of toddy and took the land to build a shop on it for carrying on his business. Subsequently Mr. James. Scott devised the land by will to his son George Scott who in his turn devised it to the plaintiffs, and upon Khaderan''s death, which took place some time before the year 1909, the land came into the possession of his four daughters, one of whom Musst. Subhagia together with her son Tuni on the 2nd March, 1909, executed a mortgage in respect of the whole 1 katha 16 dhurs in favour of Defendant No. 2 who is the son and benamidar of defendant No. 1. Eventually defendant No. 2 sued upon this mortgage and purchased the property in execution in 1917. Musst. Subhagia''s three sisters thereupon brought a partition suit against her and defendant No. 2 and recovered their 12 annas share in the holding leaving an area of 9 dhurs constituting the four-annas share of Musst. Subhagia in the possession of defendant No. 2. It is said that the plaintiffs have come to terms with the three sisters, and that in regard to Musst. Subhagia''s share, they on the 15th April, 1919, wrote to defendant No. 1 asking him to execute a kabuliyat if he wished to be recognised as a tenant and that on the 23rd April, 1919, defendant No. 1 declined. Thereupon; on the 29th April, 1919, the plaintiffs served defendant No. 1 with a notice calling upon him to give delivery of possession on the 14th May, 1919. The present suit was instituted on the 27th August, 1919, for the ejectment of the defendants.

The Munsiff dismissed the suit holding that defendant No. 2 had a right of occupancy and also that in any event he was entitled to 6 months'' notice.

On appeal, the Subordinate Judge held that Khaderan was a tenant-at-will, that neither he nor Musst. Subhagia had any transferable interest in the property, that the Plaintiffs never recognised defendant No. 2 as a tenant and that no notice was necessary. The learned Subordinate Judge accordingly made a decree for ejectment.

There was then a second appeal to the High Court which was heard by Mr. Justice Foster. The learned Judge agreed with the Subordinate Judge and dismissed the appeal.

The present Letters Patent Appeal has been preferred by the defendants against the decree of Mr. Justice Foster.

Now, the first question is, whether Musst. Subbagia was a tenant at all, and if so, whether she was a tenant-at-will or a tenant from year to year or a tenant from month to month.

Now, in this case, the principle that a doubtful grant is to be construed in favour of the grantee has no application. The kabuliyat is clear and I agree with the Courts of Appeal below that it creates a tenancy-at-will. Every document which reserves a yearly rent or which states that the rent is payable in proportion to certain aliquot parts of the year does not necessarily create a tenancy from year to year. In Morton v. Woods (I) the lease was for a term of ten years at a yearly rent of � 800, but it provided that notwithstanding anything therein contained and without any notice or demand of possession it should be lawful for the lessor to determine the term of the tenure and to eject the lessee. It was held by Chief Baron Kelly that the lease created a tenancy-at-will and not one for a term of years because, whatever might be the nominal duration of the tenancy, it was intended that it should be in the power of the lessor at any time to put an end to it Here the relevant words in the lease in question are as follows:--

I shall, without any objection and plea whatsoever on my part, continue to pay the said fixed rent annually from 1301 F.S. as per instalments given below and taking receipts therefor. Should the rent of one instalment, i.e., of six months in respect of the said land remain due by me or by my heirs or representatives, the said proprietor shall be competent to realise from me or my heirs or representatives, the said rent with interest thereon at 2 annas per rupee per month from the date of default to that of realisation, in case of non-payment of the same without instituting a suit. So long as I shall remain in possession; of the said land with the consent of the said landlord, on payment of fixed annual rent, I shall continue to pay the same.

These words, in my opinion, leave no room for doubt that it was the intention of the parties that the tenancy should be terminable at the Will of either party.

In Vaman Shripad v. Maki (1879) 4 Bom. 424 the lease gave the lessee the right to hold the land so long as the lessee chose to occupy its and it was held that the lease was a tenancy-at-will terminable upon the death of the lessee.

In Jagjivandas Javherdas v. Narayan (1884) 8 Bom. 493 the kabuliyat provided that the tenant might claim possession for one year and that he should pay rent so long as the landlord should leave the land with him. It was held that the lease was not for a period beyond one year but created a tenancy-at-will.

In the present case, the express words limiting the duration to the Will of the lessor cannot be ignored.

The next question is whether the tenancy was heritable. In Halsbury''s Laws of England, Vol. XVIII, p. 437, the rule is stated thus:

A tenancy-at-will is a personal relation between the original landlord and tenant, and is determined by the death of either of them.

Woodfall in his Law of Landlord and Tenant, 14th Edn., p. 237, varies the rule slightly and states it as follows:

An estate-at-will maybe determined by a demand of possession or by the express declaration of either of the parties, or by implication of law, of the latter description will be the death of either party, which in general determines the will.

The reason for the rule is, that as death determines the Will, the tenancy terminates by efflux of time and that in such a case the successor of the tenant being at best a tenant by sufferance, he may be ejected without notice: James v. Dean (1805) 11 Ves. 383.

It is necessary, however, to observe that in Morton v. Woods (1869) 4 Q.B. 293, Chief Baron Kelly expressed an opinion regarding the subsistence of a tenancy-at will after the death of one of the parties in the following words:

The whole law on this subject is based on very fine distinctions; but when we come to look at the cases, it would rather seem that a tenancy-at-will may continue to subsist after the death of one of the parties, unless the heir or legal representative shall do something to manifest his intention to determine the tenancy. At all events it is necessary to say that the mention of heirs and assigns does not necessarily manifest an intention to create anything more than a tenancy-at-will.

It would appear that these words were obiter, and in my opinion they are not an authority for holding that a tenancy-at-will is necessarily heritable. They might perhaps be applicable to the facts of such a case as Killich v. Manser (1910) W.N. 61, where a tenant-at-will died intestate and his administratrix in her affidavit for the inland revenue treated the land as copy-hold and valued it at � 200. Subsequently she was accepted as a tenant by the landlord on signing the usual acknowledgment that she held as a tenant-at-will. The intestate''s next-of-kin having asked for a decision whether the now tenancy acquired by the widow formed part of the in testate''s estate, and also for general administration, the Court without delivering a formal judgment made an order for administration of the intestate''s real and personal estate, including the property comprised in the widow''s acknowledgment. It would seem that for the purpose of administration the new tenancy was treated there as an accretion to the intestate''s estate; but the case is not an authority for the general proposition that all such estates are heritable Where the intention of the parties is that the tenancy is to be determined by the death of either party, there can be no estate which the heir can take, and I think it follows upon principle, that the Indian law on the subject must be the same as the English law, and that in the present case Musst. Subhagia had no tenancy in the land.

In any event, she had no transferable interest in it, for even if she became a tenant-at-will by inheritance, the tenancy was determined by an act of assignment. The defendant No. 2 acquired no title to the property by the execution purchase.

Our attention has been drawn to the words in the kabuliyat providing that in the event of any rent remaining due from Khaderan or his heirs or his representatives, the proprietor would be competent to realise it from him or his heirs or his representatives. The reference to the heirs in this connection has been found by the learned Judge of this Court to relate to the realisation of rent accruing due before and not after his death. In my opinion that is a correct construction of the lease.

Finally, it is to be determined whether the plaintiffs are entitled to a decree for ejectment in this suit. Now it is settled both in England and in India that in the case of a tenancy-at-will no formal notice is required but a demand for possession is sufficient. Deonundan Pershad v. Meghu Mahton (1906) 34 Cal. 57. In the present case it is established that a demand for possession was made and I can see no reason why the defendants should not deliver up possession to the plaintiffs.

The decrees of the Subordinate Judge and the learned Judge of this Court were correct and the appeal is dismissed with costs.

Dawson Miller, C.J.

I agree.