Subhas Choudhury vs Kantilal Paul

Bhaskar Bhattacharya, J.—This first appeal is at the instance of a Defendant in a suit for eviction and is directed against the judgment and decree dated February 4, 1986 passed by the learned Judge, 9th Bench City Civil Court, Calcutta in Title Suit No. 985 of 1978.

The fact giving rise to the instant appeal is as follows:

The Plaintiff/Respondents and their mother Smt. Nanda Rani (since deceased) were the owners of the suit property. The aforesaid five persons by a registered deed of lease dated May 2, 1957 leased out the suit property in favour of the present Appellant for a period of 21 years commencing from May 1, 1957 and ending with April 30, 1978. Subsequent to the creating of the aforesaid registered deed of lease, four Plaintiffs executed a trust deed in respect of their 4/5th share in the said property thereby appointing their mother Nanda Rani and the Respondent No. 1 viz. Kantilal Paul as trustees. The said trust was created for the purpose viz. (a) for maintenance of the property ; (b) for the benefit of the mother of their settlors Sm. Nanda Rani Dasi. It is provided in the said deed of trust that on the death of Nanda Rani the trust will come to an end and the 4/5th share of the matter will revert back to them. However, the said stipulation was subject to the following:

And it is hereby further agreed and declared by and between the parties hereto that on and after the death of the said Sm. Nanda Rani Dasi the trustee or trustees for the time being of these presents shall make over transfer and convey the said trust property unto the said Kanti Lal Paul, Gopal Chandra Paul, Kalyan Kumar Paul and Kamal Kumar Paul to be held by the absolutely for ever in equal shares and thereupon the trusts hereby created Shall come to an end.

It is not in dispute that after the execution of the aforesaid trust the Plaintiffs herein issued a letter for attornment to the present Appellant asking him to pay rent in terms of the deed of lease dated May 2, 1957 to the trustees mentioned in the aforesaid trust deed. It is also not in dispute that the Appellant complied with the aforesaid letter of attornment and thereafter rent of the suit premises was received by the joint trustees as aforesaid by granting rent receipt in respect of 4/5th share and also by Nanda Rani by issuing a separate rent receipt of her undivided 1/5th share.

Nanda Rani, the mother of the Plaintiffs died intestate on December 10, 1976 leaving the Plaintiffs and their only surviving sister viz. Smt. Prativa Rani Kundu as her heirs and legal representatives. It is however accepted that no deed of conveyance was executed after the death of the aforementioned Nanda Rani Dasi. The said deed of conveyance was necessary in law as by reason of the aforementioned deed of trust, the settlors had transferred their properties in fa vour of the trustee. It further appears from record that after the death of Smt. Nanda Rani rent of the suit property was tendered by two cheques in favour of the Plaintiff No. 1 the then surviving trustee but subsequently the Respondent No. 1 returned the said cheque thereby asking the Appellant to issue fresh cheques in favor of all the Respondents. In terms of the aforesaid demand, the Appellant issued fresh cheques in favour of all the four Respondents.

After the expiry of the lease dated May 2, 1957 Respondents filed the aforesaid suit being Title Suit No. 985 of 1978 for recovery of possession on the ground of efflux of the period mentioned in the aforesaid deed of lease dated May 2, 1957.

In paras. 3 and 4 of the plaint, the Respondents pleaded the cause of action of the aforesaid suit. The said paragraphs runs as follows:

The said Sm. Nandarani Dassi died intestate on 10th December, 1976 and in terms of the said Trust Deed the premises reverted to the Plaintiffs of which the Defendant was duly intimated and he commenced paying rent in terms of the lease to the Plaintiffs and has paid such rent upto the month of January, 1978. (Besides the Plaintiffs their mother, the said Sm. Nandarani Dasi left a daughter named Sm. Protiva Rani Kundu, who decided not to take any share in the suit properties and made over her share to her brothers, the Plaintiffs.).

The said deed of Lease Expired by efflux of time on the 30th April 1978 and the Defendant was duly intimated of the said fact and asked to vacate and make over possession of the said premises to the Plaintiffs ; but has failed and neglected to comply with the said requisition. The Plaintiffs, consequently filed this suit for the recovery of possession of the said premises fully described in the schedule hereunder written.

The Appellant contested the aforesaid suit by filing written statement thereby denying the material allegations made in the plaint and the defence of the Appellant, inter alia, was that on the death of Nanda Rani, the mother of the Respondents, the registered deed of lease dated May 2, 1957 became inoperative and as such the same was not binding upon the Appellant. In paras. 10 and 11 of the written statement filed by the Appellant, he dealt with the allegation contained in paras. 3 and 4 of the plaint. Those paragraphs of the written statement are quoted hereunder:

With reference to para. 3 of the plaint this Defendant denies the statements made therein and put the Plaintiffs to the strict proof thereof. In fact, the contents of the Trust Deed were not taken to this Defendant and hence nothing could be done. In fact, the death of Sm. Nanda Rani Dasi was not made known to this Defendant but the Plaintiffs did not accept the rent when tendered from the month of November 1976 on the plea of Succession Certificate. This Defendant was then verbally informed to withhold payment of rents for sometime which he agreed. Subsequently this Defendant wrote a letter dated 17th March 1977 stating the facts about the delay in payment of rents from November 1976 to February 1977 and enclosed therewith one cheque dated 17th March 1977 for Rs. 1100.00 being the rent for the aforesaid 4 months. The Plaintiff in their letter dated 28th April 1977 explained their difficulties in getting the said cheque encashed as the same was to be endorsed in favour of all the 4 Plaintiffs and requested Defendant to issue fresh cheque accordingly which he did. This gave a status to this Defendant as a Tenant afresh because of the fact that the lease dated 2nd May 1957 became inoperative/ineffective for various changes effect after its execution long before that date.

With reference to para. 4 of the plaint, this Defendant denies that the alleged lease expired on 30th April 1978 as the said lease became inoperative/in-effective by the conduct of the Plaintiffs and hence the alleged notice is illegal, bad in law and not binding on the Defendant.

It will not be out of place to mention here that the only sister of the Respondents during pendency of the aforesaid suit gifted her undivided 1/25th share in the suit property in favour of the present Respondents by a registered deed of gift dated April 19, 1982. After the execution of the aforesaid deed of gift the Respondents amended their plaint by incorporating the aforesaid fact in para. 3 of the plaint which has already been quoted above.

At the time of hearing of the aforesaid suit the Respondents No. 4 and their aforesaid sister gave evidence in support of the plaint case while the Appellant alone gave evidence in opposing the prayer of the Respondent.

The learned trial Judge by judgment and decree dated February 4,1986 was pleased to decree the aforesaid suit thereby holding that after the expiry of the period mentioned in the deed of lease dated May 2, 1957, the Appellant has no right to remain in possession.

Being dissatisfied with the aforesaid judgment and decree passed by the learned trial Judge, the Defendant has preferred the instant first appeal.

Mr. Bagchi, the learned advocate appearing on behalf of the Appellant has submitted that on the death of Nanda Rani, the Respondents having demanded rent asking the Appellant to issue cheques only in favour of the Respondents by excluding their sister, the earlier deed of lease dated May 2, 1957 was given a go-by and a new relationship came into existence. According to Mr. Bagchi by the above conduct on the part of the parties there has been an implied surrender of the previous registered lease for 21 years in terms of Section 111(f) of the Transfer of Property Act. Mr. Bagchi thus, contends that in the absence of any notice u/s 13(6) of the West Bengal Premises Tenancy Act and in the absence of any ground mentioned in Section 13(1) of the aforesaid Act, the instant suit is not maintainable and the learned trial Judge erred in law in passing a decree for eviction.

Mr. Dasgupta, the learned senior Advocate appearing on behalf of the Respondents on the other hand has contended that the plea of surrender not having been taken specifically in the written statement, the Appellant is not entitled to raise such plea. In support of such contention Mr. Dasgupta relies upon a decision reported in AIR 1930 57 (Privy Council) and Bhagat Singh v. Jaswant Singh AIR 1966 S.C. 1861.

Mr. Dasgupta further contends that some of the co-owners may accept rent on behalf of other co-owners and in that case rent paid by a tenant to such co-owners will absolve him from the liability of paying rent twice. According to Mr. Dasgupta after the death of Nanda Rani the Appellant has paid rent to some of the co-owners of the suit property and these co-owners having accepted rent on behalf of the other co-owners, if cannot be said that there has been a surrender of the existing lease.

Mr. Dasgupta further contends that there cannot be surrender of a subsisting lease except with the consent of all the lessors. Therefore, Mr. Dasgupta contends that in the absence of any evidence showing that the sister of the Respondents ever agreed to surrender the previous lease, even if the case of the Appellant is accepted, there cannot be any valid surrender according to law.

Mr. Dasgupta further contends that after the expiry of the deed of lease dated May 2, 1957 the position of the Appellant is no better than that of a trespasser and as such some of the co-owners can maintain a suit for eviction of a trespasser without impleading the remaining co-owners. In support of such contention Mr. Dasgupta, relied upon two Supreme Court decisions in Pal Singh Vs. Sunder Singh (Dead) by Lrs. and Others, and Kanta Goel Vs. B.P. Pathak and Others, Therefore, Mr. Dasgupta contends that in the absence of any evidence indicating that the left out co-owner wanted to maintain relationship of landlord and tenant between the Appellant and the said co-owner the instant suit is bound to succeed. Mr. Dasgupta has further argued that the said sister during the pendency of the aforesaid suit having already transferred her undivided interest in the suit property in favour of the present Respondents, the plea of non-joinder of necessary party is not available to the Appellant.

There is no dispute that during the pendency of the suit Smt. Prativa Rani Kundu, the sister of the Respondents executed a registered deed of gift thereby transferring her 1/25th share in the suit property in favour of the present Respondents. Though the said document has been termed as a deed of gift the contents of the same are very peculiar in nature. The following paragraphs of the deed of gift are worth mentioning:

And whereas on account of natural love and affection for the Donees, the Donor decided on December 10, 1976 not to take any share in the usufructs of the said property but to make a gift to her right title and interest to the Donees.

And whereas the Donees have been enjoying the usufructs of the said property according to the decision and consent of the Donor since the Death of her mother i.e. since December 10, 1976.

And whereas the Donor bears natural love and affection for the Donees who are her brothers and is desirous of assigning and transferring her said undivided one twenty fifth share to them by way of gift.

And whereas for the purpose of Stamp duty these presents the undivided one twenty fifth part of the said premises No. 8/1A, Kirti Mitra Lane is valued at Rs. 1600.00 (Rupees one thousand and six hundred) and stamp duty has been paid thereupon.

Now this Deed Witnesseth that.

At this juncture it will not be out of peace to refer to exhibit 6.A letter written by the Respondents dated February 26, 1978 asking the Appellant to vacate the suit property with the expiry of. April 30, 1978. In the said letter at the very first line the Respondents have described the Appellant as a lessee under them in respect of the suit premises. In the said letter the Respondents have given no indication that the Appellant was a tenant under them and also under their sister Smt. Protiva Rani Kundu. We have already indicated that after the death of Nanda Rani by exhibit. ''Al'' dated April 28, 1977 the Respondent No. 1 directed the Appellant to re-issue fresh cheques in favour of the Respondents as rent of the suit premises. In the said letter the Respondent No. 1 never disclosed that apart from the aforesaid four persons there was another co-owner nor did they assert that they intended to accept rent not only on their own behalf but also on behalf of their sister in terms of the said deed of lease dated May 2, 1987. Suffice it to say, that the said letter does not mention that the Appellant was required to send the cheques in terms of the registered deed of lease dated May 2, 1957.

According to Section 111 of the Transfer of Property Act one of the modes of surrender of an existing lease is by implied surrender as mentioned in Clause (f) thereof. By reason of a letter dated February 26, 1978 the Plaintiffs stated that the Appellant is a lessee under them in respect of the premises in question. Thus, it was not stated that the Appellant was a lessee of the Plaintiffs/ Respondents as also their sister who evidently inherited the estate of Nanda Rani Dasi along with her brothers. It is also accepted that the Appellant had all along been, after the death of Nanda Rani Dasi paying rent only to the Respondents. The Appellants have thus made out a case that the Respondents were the only lessors and thereby they excluded their sisters from the category of landlords. In that view of the matter there cannot be any doubt whatsoever that a new arrangement has come into being and, thus, the old lease would be deemed to have been surrendered. In P.M.C. Kunhiraman Nair Vs. C.R. Naganatha Iyer and others, , the law is stated thus:

Under Clause (f) of Section 111 of the Transfer of Property Act, 1908 implied surrender is a mode for determination of a lease of immovable property. In English Law, delivery of possession by the tenant to a landlord and his acceptance of possession effect a surrender by operation of law. it is also called implied surrender, in contradistinction to express surrender which must be either by deed or in writing. It has been held that directing the occupier to acknowledge the landlord as his landlord, i.e. to attron to the landlord, is a sufficient delivery of possession by the tenant to the landlord. It has also been held that receipt of rent from a person in possession may be evidenced of the landlord''s acceptance of him as tenant, whether he is a stranger, or whether he was already in possession as sub-tenant (Hulsbury''s Laws of England, 4th Edn. Vol. 27 paras. 444, 445, 446, and 450; and note (1) to para. 446). Under the illustration to Clause (f) of Section 111 of the Transfer of Property Act, there would be an implied surrender of the former lease if a lessee accepts from his lessor a new lease of the property leased to take effect during the continuance of the existing lease. The said illustration is, however, not exhaustive of the cases in which there may be an implied surrender of the lease. Just as under the English Law, there can be an implied surrender under the law of transfer of property in India, if the lessor grants a new lease to a third person with the assent of the lessee under the existing lease who delivers the possession to such person or where the leasee directs his sub-tenant to pay the rent directly to a lessor, Konijeti Venkayya v. Thammana Peda Venkata Subbarao AIR 1957 A.P. 619at 624 and Neratmal v. Mohanlal AIR 1966 Raj. 89 at 90, 91

It is therefore, clear that if a new arrangement comes into being as regards payment of rent vis-a-vis some of the lessors, a new lease will also come into being, consequence whereof in that there would be an -implied surrender of the old lease. This aspect of the matter has been considered by this Bench in Shovana Traders Pvt. Limited v. Great Eastern Hotel Pvt. Ltd. F.A. No. 15 of 1996 wherein this Court followed the decisions of the Andhra Pradesh High Court in Konijeti Venkayya(Supra) and various other decisions. In the instant case on the death of Nanda Rani Dasi, the present Respondents as well as their sister Prativa became lessor in terms of the lease deed dated May 2, 1957. Notwithstanding the aforesaid fact the Respondents themselves demanded rent for the entire suit property by cheques in their favour alone, in the said letter they never hinted that they were realising rent also on behalf of their sister as argued by Mr. Das-gupta before us. On the other hand if so go through the contents of the deed of gift executed by Prativa In favour of the Respondents we find that the donor therein has stated that on the very date of death of her mother viz. December 10, 1976 she decided not to take any share entire usufruct of the property but to transfer her right, title and interest to the donees therein. The said deed further mentioned that the donees were enjoying ''the usufruct of the suit property according to her decision since December 10, 1976 although she executed the said deed of gift on April 19, 1982, that is to say, more than five years thereafter. It is now well settled that title t6 a property cannot pass orally on consent. Therefore according to the contents of the very deed of gift the donor from December 10, 1976 decided not to take any share of usufruct out of the suit property and as such the demand by the Respondents for the entire rent in their favour was not for or on behalf of the sister. It is the positive case of the Plaintiffs/Respondents that their sister relinquished her share even in 1976 and thus the contention of Mr. Dasgupta to the effect that surrender has to be made to the entire body to the landlords cannot be accepted. Therefore, by the aforesaid demand of rent and acceptance of the same by the Appellant, the previous lease deed was given a go-by. The aforesaid statement of their sister in the deed of gift that she intended not to take any share and permitted the brothers to enjoy the usufruct to be appropriated itself shows that the demand of rent by the Respondents was for themselves and not on behalf of the sister.

Over and above, in para. 3 of the plaint the Respondents have stated that on the death of their mother on December 10, 1976 and in terms of the trust deed the premises reverted to the Respondents. By amendment the Respondents merely added that besides the Plaintiffs their mother left a daughter named Smt. Prativa Rani who decided not to take any share of the suit and made over her share to her brother.

The aforesaid statements made in para. 3 does not show that the Plaintiffs/Respondents filed the aforesaid suit as successors of the original lessors. It goes without saying that the Respondents decided not to make their sister as Plaintiff although till 1982 she was a co-owner of the suit property. Here the Respondents wanted to come as successors of the original lessors but did not choose to make their sister a party. Therefore, the said defect cannot be cured by subsequent execution of a deed of gift. Moreover, as indicated above after the death of their mother they demanded rent of their own nor as heir of the original lessOrs. 23. So far the decisions reported in Siddik Mahomed Shah(Supra) is concerned there is no dispute with .the proposition that no evidence can be received unless there is relevant pleading. In Bhagat Singh(Supra) while considering a case of adoption the Supreme Court reiterated the well settled principle that no amount of evidence can be looked into upon a plea which was never put forward in the pleading. In the aforesaid case the Plaintiff filed a suit for recovery of possession on the allegation that the suit property was owned by one Kartar Singh who had adopted the Plaintiff as heir before his death. The Defendant in their defence stated that Kartar Singh never adopted the Plaintiff as his son nor has the Plaintiff the sister''s son of Kartar Singh. The learned trial Judge dismissed the suit on the ground that no adoption of the Plaintiff had taken place and that even if it had taken place it was opposed to the general as well as the custom of Jullundhur District. On appeal the learned District Judge held that the Plaintiff had been adopted as a son and appointed as a heir by Kartar Singh. He did not consider it necessary to decide whether adoption was valid as the properties left by Kartar Singh where not alleged to be ancestral and consequently the Defendants had no right to contest any alienation or any appointment of an heir to such property in view of the provisions of Section 7 of the Punjab Custom (Power to Contest) Act, 1920. The Appellant went to appeal before High Court but the High Court dismissed the appeal with a finding that the pleading of the parties were so confused that it was impossible to find out that the Defendants were either claiming that they were within five degrees of ancestors or that they were claiming that the land was ancestral and in such a case, where no specific plea has been taken as to the ancestral nature of the property it cannot be said that issue arose on the pleading. While dismissing the appeal, the Supreme Court held that it was necessary that a person objecting to the validity of the appointment of an heir to the property on the ground of custom must plead and prove that the land in suit is ancestral and that he comes within five degrees of ancestor. The mere fact that the Defendant contended in the written statement that the Plaintiff could not be adopted according to custom did not tantamount to the requisite plea and therefore, the view taken by both the District Judge and the High Court could not be said to be wrong.

In the instant case it appears from paras. 10 and 11 of the written statement, the Appellant specifically stated that the acceptance of fresh cheque by Respondents on the death of Nanda Rani made the lease deed dated May 2, 1957 inoperative in-effective. Therefore, it cannot be argued that the necessary pleading pertaining the invalidity of the lease deed upon which the instant suit rests was not pleaded. Thus, the aforesaid decision in Pal Singh( Supra) and Smt. Kamta Goel( Supra) cited by Mr. Dasgupta do not help him in opposing the plea of implied surrender taken by the Appellant.

Once we accept the case that the old tenancy was surrendered by the parties and the Respondents themselves claimed rent of their own without reference to the previous lease deed and that too with the consent of their sister, we are left with no other alternative but to conclude that a new tenancy under the provision of West Bengal Premises Tenancy Act has been created ; between the parties. Therefore, in the absence of any Notice as contemplated u/s 13(6) of the West Bengal Premises Tenancy Act and in the absence of any ground mentioned in Section 13(f) thereof, no decree for eviction of the Appellant can be passed. Therefore, in our opinion, the learned trial Judge erred in law in passing a decree for eviction on the basis of expiry of lease deed dated May 2, 1957 by totally over looking the fact that the said lease extinguished by way of implied surrender on the act of the present Respondents who for themselves demanded rent and the other co-owner of the suit property consented to such surrender by deciding not to accept any rent whatsoever from the suit property from the very date of death of the mother of the Respondents. Therefore, we allow the appeal and set aside the judgment and decree passed by the learned trial Judge. The suit filed by the Respondents is dismissed. In the facts and circumstances of this case there will, however, be no order as to costs.

Satyabrata Sinha, J.

I agree.