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Suryajirao Ganpatrao Naik Nimbalkar Jahagirdar Vs. Shivakacharu Kumbhar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 739 of 1936
Judge
Reported inAIR1939Bom421; (1939)41BOMLR951
AppellantSuryajirao Ganpatrao Naik Nimbalkar Jahagirdar
RespondentShivakacharu Kumbhar
Excerpt:
.....the saving clause to section 83 of the bombay land revenue code are not ejusdem generis with the words 'agreement or usage' which precede them. the principle of ejusdem generis has no application in the interpretation of the saving clause to section 83.;the words in a statute are prima facie to be taken in their usual sense unless the reasonable interpretation of the statute requires them to be used in a sense limited to things ejusdem generis with those; which have been specifically mentioned before.;attorney-general v. seccombe [1911] 2 k.b. 688, sutton v. london, chatham and dover railway company (1896) 12 t.l.r. 425, taylor v. corporation of oldham (1876) 46 l.j. ch. 105 and lowther v. bentinck (1874) l.r. 19 eq. 166, referred to.;as an ordinary rule of construction of words used..........even upon the application of the rule of ejusdem generis, for the landlord to prove current usage or prevailing rate. there is a great force in that contention for if the landlord is not hampered by agreement or ancient usage to enhance the rent, and if in accordance with the prevailing rates of the locality the landlord in other instances has been raising the rent, the law as contained in the provisions of section 83 of the bombay land revenue code will not, in my opinion, exempt the tenant from yielding to the demand if it is just and reasonable having regard to the prevailing rates.13. in fixing a just and reasonable rate an examination of the rates of the rent prevailing in the locality was essential. on that question the lower courts have given their finding. that.....
Judgment:

Wassoodew, J.

1. This is a second appeal from the decision of. the District judge of Jalgaon. The dispute relates to the right of the landlord, who is also an inamdar of the town of Bhusawal, to demand enhanced rent from the defendants who are permanent, tenants of the demised property measuring over 10,000 square yards in that town. The rent was recovered from the defendants since 1865 at an uniform rate of Rs. 70 per year with local fund cess in proportion to the assessment fixed on the property. The landlord has now by notice sought to increase the rent, and on refusal to pay he has instituted this action. The Courts below have held that the defendants would have been liable to pay rent if the landlord had established his claim either by virtue of an agreement or usage, and that, in the absence of such evidence, they dismissed the claim. At the same time the lower appellate Court held that if the landlord is entitled to claim rent on the basis of what is just and reasonable, that rent would be Rs. 250 a year.

2. The defendants' claim to permanency of tenure, by reason of the presumption under Section 83 of the Bombay Land Revenue Code, has not been challenged in this appeal by the plaintiff-landlord. But it is urged that the onus of proof should be on the tenants to establish that fixity of rent attaches to their tenure, that in the absence of any such proof the landlord is entitled to rent at the market rate prevailing in the locality, and that, alternatively, if the burden were cast on the landlord to establish his right to enhance rent, he is entitled, in the absence of proof of agreement or usage, to claim such rent as is just and reasonable.

3. It is not disputed that the right of the landlord to claim enhanced rent is regulated by the provisions of Section 83 of the Bombay Land Revenue Code. Upon the plain language of the saving clause of that section the right to enhance rent vests in the landlord 'if he have the same either by virtue of agreement, usage, or otherwise'. Those words cast the burden primarily on the landlord to establish the right which he claims. If authority were needed, I would refer to Juvansingji v. Dola Chhala (1924) 27 Bom. L.R. 890 where it was held that the onus of proving such a right to enhance rent lay on the landlord in the first instance. That being so, the question is whether that onus has been discharged.

4. Hitherto, as I have remarked, for a long period uniform rent had been paid to the landlord by the tenants. It is not suggested that that fact prevents the landlord from claiming enhanced rent. Section 83 of the Bombay Land Revenue Code, in so far as it relates to the landlord's right in this respect, provides as follows:

Nothing contained in this section shall affect the right of the landlord (if he have the same either by virtue of agreement, usage, or otherwise) to enhance the rent payable.

In regard to agreement both the Courts below have held that there is no proof of agreement, and, in regard to usage the learned District Judge in appeal thought that the instances where the rent had been increased, although they related to the land in the locality, were of tenants who did not hold the land on permanent tenure. Consequently, he held that there was no evidence of usage governing this case. The term 'usage' might imply practice prevailing in a locality or business under uniform or common circumstances and conditions. It is generally qualified by antiquity, as a practice long continued or shown to have existed immemorially. It is, therefore, reasonable to expect that evidence of usage should be in relation to circumstances which are similar or common prevailing for, a long time as opposed to current practice. In that interpretation of the term the lower appellate Court was, I think, correct. But the Court whilst holding that it would be reasonable, in view of the potentiality of the land' and the rates prevailing in recent years, to demand Rs. 250 a year instead of Rs. 70 hitherto paid by the tenants, thought that the words 'or otherwise' in the saving clause were ejusdem generis with the words 'agreement or usage', and therefore it accepted the contention that claims based on equitable considerations and prevailing conditions could not be allowed to prevail. The question is whether the doctrine of ejusdem generis could be invoked in the construction of the saving clause. As an ordinary rule of construction of words used in a statute reference to the meaning of words associated with it is permissible. But it is always a question of intention whether the coupling of the words shows that they are1 to be understood in the same sense. The words ' or otherwise without reference to the context would be unintelligible They become effective only when taken conjointly with the other words in the sentence. The argument advanced on behalf of the appellant is that the general words used, in the statute should be understood and interpreted in their usual sense and that inasmuch as those general words follow specific words, each of which exhausts the whole genera, the general words must be taken in their general sense unless there was something in the statute itself or in the section requiring them to be used1 in a sense limited to things ejusdem generis with those which precede. The rule of interpretation stated by Maxwell (Interpretation of Statutes, 8th Edn., p. 295) is this:

The general principle in question applies only where the specific words are all of the same nature. Where they are of different genera the meaning of the general word remains unaffected by its connection with them.

5. The reason underlying the rule of ejusdem generis is to carry out as far as practicable the primary object of the legislature in the construction of a statute by reference to the specific words used, to indicate the intention. If specific words or phrases were used, followed by the most comprehensive or largest term, the Court may, if the intention is clear in the construction of the widest expression, restrict its operation to carry out the primary object. In other words, the Court will control the meaning of the largest term by reference to the context. That principle would apply only when the specific words are of the same kind. Here the specific words used are 'agreement or usage'. It is not possible to say that they are of the same genus. They imply different ideas and different rural conception. If it were necessary to limit the application of the phrase 'or otherwise', I find it difficult to conceive of any ideas similar in import to that connoted by the specific words in the saving clause.

6. The expression 'or otherwise' has been differently interpreted judicially by reference to the context in which they occur. One of the cases referred to where it received a restricted interpretation is Attorney-General v. Seccombe.1 There, under Section 11 of the Customs and Inland Revenue Act, 1889, upon the death of the donor the Crown claimed estate duty upon the value of the property comprised in the deed of gift upon the ground that bona fide possession and enjoyment of the property were not assumed by the donor and thenceforward retained 'to the entire exclusion of the donor, or of any benefit to him by contract or otherwise.' The donor notwithstanding the deed of gift was permitted by the donee to reside and did in fact reside in the house from the date of the deed until his death. He was maintained by the donee on condition that the donor, who was entitled to certain annuity chargeable upon the land belonging to the donee, did not claim it and allowed the donee to retain it being sufficient to meet the costs of the donor's maintenance. Upon those facts it was held that there was 'an entire exclusion of the donor from the possession and enjoyment of the property or of any benefit to him by contract or otherwise', within the meaning of Section 11 of the Act, and that, therefore, the estate duty was not payable. It was held that the expression ' or otherwise' meant some arrangement ejusdem generis with contract, that is to say, an enforceable arrangement. I find it difficult to think of some other arrangement between the landlord and the tenants ejusdem generis with 'agreement' or ' usage' in relation to the latter's liability to pay enhanced rent. In fact the specific words exhaust the genus.

7. The rule of ejusdem generis, according to Beal (Cardinal Rules of Legal Interpretation, 3rd edh., p. 355) may be summed up as follows:

General words in a statute are prima facie to be taken in their usual sense.

General words following specific words in a statute are prima facie to be. taken in their general sense....

If the particular words exhaust the whole genus the general word -must refer to some larger genus.

8. According to that rule of interpretation, I find it difficult to agree with the view of the learned District Judge that the words 'or otherwise' in the saving clause of Section 83 of the Bombay Land Revenue Code are ejusdem generis with the words 'agreement, or usage'

9. The meaning of the words used in a statute is primarily to be sought in the statute itself. For that purpose all the constituent parts of a particular section creating the difficulty or the entire statute have to be duly weighed. Consequently, it is permissible to refer to the other provisions of Section 83 for the purpose of ascertaining the scope and meaning of the general expression and thus understanding the intention of the legislature. The first clause of Section 83 s of the Bombay Land Revenue Code deals with the tenant's liability to pay rent. It says that 'a person placed, as tenant, in possession of land by another, or, in that capacity, holding, taking, or retaining possession of land permissively from or by sufferance of another, shall be regarded as holding the same at the rent, or for the services agreed upon between them.' In. other words, the liability proceeds first upon agreement. Then follows the second ground of liability and it is thus expressed :-' Or in the absence of satisfactory evidence of such agreement, at the rent payable or services renderable by the usage of the locality.' That refers to the liability based upon usage. Then follows another ground which is important and relevant for the present purpose. It says, 'or, if there be no such agreement or usage, shall be presumed to hold at such rent as, having regard to all of the circumstances of the case, shall be just and reasonable. 'That illustrates the third class of cases contemplated by the legislature in fixing the rent of the tenant which is both outside agreement or usage. If the legislature intended to use the phrase ' agreement, usage, or otherwise 'as covering the different bases of claims indicated in the first part of the section, in my opinion, the term 'or otherwise' cannot be said to be controlled by its association with the preceding words 'agreement or usage.'

10. There are instances where Courts have given the widest possible meaning to the phrase 'or otherwise' in construing statutes and deeds or agreements of parties ,see Sutton v. London, Chatham, and Dover Railway Company (1896) 12 T.L.R. 425 Taylor v. Corporation of Oldham (1876) 46 L.J. Ch. 105 and Lowther v. Bentinck (1874) L.R. 19 Eq. 166 The first was a case of an agreement with a railway company. containing a clause exempting the railway company from liability against damage caused by 'any delay from accident or otherwise,' and it was held that the doctrine of ejusdem generis did not apply to the words for they might mean 'any delay from any cause whatsoever. 'The second dealt with the construction of a statute containing the provisions that 'nothing in this Act contained shall take away or abridge any right, power or authority, which the corporation have or may enjoy under the Municipal Corporation Acts, or otherwise, independently of this Act.' The argument was that the last words 'the Municipal Corporation Acts, or otherwise' restricted the meaning of the general expression which implied 'other like Acts'. That argument was not accepted and the words 'or otherwise' were interpreted in their general sense. The third case related to the construction of a will containing the provision that ' the trustees at any time or times during the life of the devisee could apply any part of the fund not exceeding one moiety in or towards the preferment or advancement of the devisee, or otherwise for his benefit as the trustees should in their discretion! think fit. 'The general words were not regarded as mere surplusage, as suggested from the habit of the conveyancer 'to use more words than are necessary ', but as conferring the widest discretion on the trustee.

11. Those cases do not help to elucidate the intention of the legislature in this particular case. But they illustrate the principle underlying the rule stated by Beal that the words in a statute are prima facie to be taken in their usual sense unless the reasonable interpretation of the statute requires them to be used in a sense limited to things ejusdem generis with those which have been specifically mentioned before. That, I think, is not the case here. Consequently, in my opinion, the doctrine of ejusdem generis has no application in the interpretation of the saving clause to Section 83 of the Bombay Land Revenue Code.

12. The alternative argument urged for the appellant is that even upon a restrictive interpretation of the expression ' or otherwise ', it is possible to apply it to the prevailing or current rate of rent in the locality for that would be within the genus 'usage', and, therefore, ejusdem generis with that term if it was understood to apply to a practice long continued. It is, therefore, argued that it is permissible, even upon the application of the rule of ejusdem generis, for the landlord to prove current usage or prevailing rate. There is a great force in that contention for if the landlord is not hampered by agreement or ancient usage to enhance the rent, and if in accordance with the prevailing rates of the locality the landlord in other instances has been raising the rent, the law as contained in the provisions of Section 83 of the Bombay Land Revenue Code will not, in my opinion, exempt the tenant from yielding to the demand if it is just and reasonable having regard to the prevailing rates.

13. In fixing a just and reasonable rate an examination of the rates of the rent prevailing in the locality was essential. On that question the lower Courts have given their finding. That finding would ordinarily be one of fact, if a proper standard were correctly applied. But, in the consideration of the question, they have emphasised the fact that the defendants have been making large amount of profit out of this property. The learned District Judge states that 'looking to the profits the defendant is getting from the land Rs. 250 a year seem to be reasonable.' That is not in my opinion the standard set by Section 83, and is not a factor upon which a just and reasonable rate of rent can be based. If the profits are due to the tenants' industry and investment, the landlord cannot claim a pro tanto increase in his rent because he does not contribute anything to that profit and it could not be said that the demand is just and) reasonable. The proper standard to apply under Section 83 of the Bombay Land Revenue 'Code would be the prevailing rates in the locality, particularly the rates which the plaintiff has levied for similar class of land let out for similar purposes, namely, for making bricks and tiles. The Plaintiff's another tenant has admitted that for nearly half the area leased to him he has been paying Rs, 60 a year. If that is so, I think that rate could be demanded in reason and fairness from the defendants. The fair rental per year which could be claimed upon the evidence referred to should not be in excess of Rs. 120. That is the rate of rent which the plaintiff is entitled to recover from the defendants for the year for which he has made the claim. The defendants will be liable to pay in addition local fund cess on the amount of the assessment on their land. As the claim was exaggerated there shall be no order as to costs of either party throughout.


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