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R.S. Rammohanrai Jaswantrai Desai and ors. Vs. Somabhai Nathabhai Patel and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai
Decided On
Case NumberLetter Patent Appeal No. 5 of 1948
Judge
Reported inAIR1950Bom161; (1950)52BOMLR97
ActsTransfer of Property Act, 1882 - Sections 105; Code of Civil Procedure (CPC) , 1908 - Order 41, Rule 22
AppellantR.S. Rammohanrai Jaswantrai Desai and ors.
RespondentSomabhai Nathabhai Patel and ors.
Appellant AdvocateG.A. Desai, ;K.T. Pathak and ;B.B. Dhruv, Advs.
Respondent AdvocateC.K. Shah, Adv.
DispositionAppeal dismissed
Excerpt:
.....(1942) 45 bom. l.r. 194 and suleman v. asmad (1877) p.j. 177, referred to.;where a party cannot appeal from a decree, because nothing is decided against him, he cannot file any cross-objections to it.;sahdeo narain deo v. kusum kumari (1917) i.l.r. 1 pat. 258, lakshmi debi v. hansraj gupta (1940) a.i.r. cal 377 and babusingh v. godawari (1929) a.i.r. nag. 361, referred to.;the cross-objections must also be in respect of something decided by the particular decree from which the appeal is preferred.;debi chanda v. parbhu lal (1926) a.i.r. all. 582, and government of bombay v. hormasji manekji (1939) letters patent appeal no. 40 of 1938, referred to. - - 174, as well as three other lands, survey nos. 174 bad been wrongly rejected by the lower courts. 50 of santh per year as decided..........and 45, in respect of which cross-objection have been filed. cross-objections are in the nature of cross-appeals, and as the defendants could not prefer an appeal against the decision of gajendragadkar j., it is not open to them to file cross-objections to it. we do not think that the view, which we are inclined to take, is likely to cause hardship, because it is always open to a party aggrieved by any part of the decree to appeal against it.10. our attention has been invited to an interlocutory judgment in government of bombay v. hormasji manekji, delivered on 13th april 1939 by wadia j. in civ. app. no. 40 of 1938. in that case cross-objections were filed in an appeal under the letters patent, as in the present case. a question was then raised regarding the admissibility of these.....
Judgment:

Chainani, J.

1. This is an appeal by the original plaintiffs under Clause 15 of the Letters Patent against the decision of Gajendragadkar J., dismissing the appeal which the plaintiffs had brought against the decision of the Assistant Judge, Broach and Panch Mahals, by which he confirmed the trial Court's order rejecting the claim made by the plaintiffs for possession of survey No. 174. The plaintiffs instituted the suit for recovering possession of survey No. 174, as well as three other lands, survey NOS. 32, 45 and 60/6 from the defendants. The plaintiffs' case was that the defendants were their annual tenants. Survey no. 174 measures 9 acres and 14 gunthas or 16 3/4 bighas of land. Fourteen and three-fourths bighas out of this land were the subject-matter of litigation between the plaintiffs' ancestors and the defendants' grandfather in Civil Suit No. 54 of 1911. A compromise decree was passed in that suit on 13th February 1912, by which the grandfather of the present defendants, Bhika Parshottam, was allowed to continue as a tenant on certain conditions, to which I will refer later. The plaintiffs contended that this decree created only personal rights in favour of Bhika Parshottam and that the tenancy therefore came to an end on Bhika Parshottam's death in 1927. They also alleged that as Bhikha Parshottam was not willing to continue as a tenant in accordance with the terms of the decree, it was treated as null and void by both the parties, that about 1916-17 Bhikha Parshottam took the remaining portion of survey No. 174 for cultivation and that, thereafter, he gave up his rights under the decree and became an annual tenant. After his death, his son Chatur cultivated the lands on annual oral leases. Subsequently after Chatur's death the three defendants, who are the grandsons of Bhikha Parshottam, continued in possession of the lands as tenants. On 22nd December 1939, the plaintiffs gave a notice to the defendants asking them to hand over possession of the lands on 31st March 1940. As they did not do so, the plaintiffs filed the present suit for possession of the land on 5th January 1943. The defendants contended that they were permanent tenants in respect of 14 3/4 bighas out of Servey no. 174 and survey Nos. 32 and 45. They denied that there was any settlement as alleged by the plaintiffs about the cancellation of the decree passed in 1912 and contended that the rights of the parties in respect of Survey No. 174 were still governed by the terms of that decree. They also contended that this decree treated a perpetual tenancy and that they were entitled to continue as permanent tenants under the terms of this decree. The trial Court -upheld the defendants' contentions and dismissed the plaintiffs' claim with regard to 14 3/4 bighas of land out of Survey No. 174 and Survey Nos. 32 and 45. The trial Court passed a decree for possession in favour of the plaintiffs with regard to the remaining portion of Survey No. 174 and Survey No. 60/6. The plaintiffs appealed to the District Court. The Assistant Judge who heard the appeal partially allowed it and directed the defendants to hand over possession of Survey Nos. 32 and 45 also to the plaintiffs. He, however, confirmed the decision of the trial Court with regard to 14 3/4 bighas out of Survey No. 174. The plaintiffs then filed a second appeal and contended that their claim in regard to 14 3/4 bighas out of Survey no. 174 bad been wrongly rejected by the lower Courts. This appeal was summarily dismissed by Gajendragadkar J. Against that decision the present appeal under the Letters patent has been filed. The defendants have filed cross-objections and have contended that the Assistant Judge was wrong in awarding possession of Survey Nos. 32 and 45 to the plaintiffs.

2. The only point which has been urged in this appeal by Mr. Desai, who has appeared for the plaintiffs, is that the finding of the two lower Courts that the defendants are permanent tenants in respect of 14 3/4 bighas out of Survey No. 174 is wrong. The plaintiffs' story about the decree of 1912 having been treated as null and void or cancelled and about Bhikha Parshottam having agreed to become an annual tenant from about 1916-17 has not been accepted by both the lower Courts. This being a question of fact, we must accept the finding of the lower Courts on it. Mr. Desai has, therefore, not seriously pressed this point in this appeal. He has, however, contended that the compromise decree of 1912, on which the defendants rely in support of their claim to permanent tenancy created only personal rights in favour of Bhikha Parshottam and did not confer any hereditary' interest. In order to determine this question, we must consider the language and the terms of the decree, the circumstances in which this decree was passed and the subsequent conduct of the parties. See Mt, Bilasmoni Dasi v. Sheo Pershad Singh 9 I. A. 33 : 6 Cal. 664 and Babu v. Sitaram 8 Bom. L. R. 768.

3. The relevant portion o the decree is in the following terms :

'It is hereby ordered and decreed that the plaintiffs are the owners of the property in the suit and the defendant is the tenant of the plaintiffs under the following terms : The defendant do pay to the plaintiffs on Maha Vadi 2nd of every year Rs. 50 fifty only, the amount of Santh (rent) of the land of the plaintiff a cultivated by the defendant, and after every period of 12 years, the increment or reduction in the rate of rent (Santh) that may be made in the presence of two non-interested persons and accordingly the defendant should continue to pay the Santh (rent) to the plaintiffs and the defendant do pay the amount of Santh every year on the date as fixed. In addition to the payment of Santh (rent) as above the defendant do serve the plaintiffs twice every year with the plaintiff's bullocks and the cart. As per above decision the defendant is the tenant of the plaintiffs and so long as the defendant continues to act and abide by the aforesaid decision till then the plaintiffs have no right to evict the defendant from the said land. The defendant has no other right in the said suit land save the right of cultivation and the defendant cannot sell, mortgage, or assign or gift away the said right to anybody. There are fruit bearing; trees in the suit land. The plaintiffs have 1/4th share in the fruits of those trees and in the wood of other trees the plaintiffs have l/3rd share. The defendant is the owner of the remaining fruits and the wood. In the wood of the fruit bearing trees the plaintiffs have l/3rd share. In case the defendant fails to pay the amount of Rs. 50 of Santh per year as decided above in time or if he fails to pay within the time fixed then the plaintiffs are entitled to take possession of the suit land, but the Court will excuse the just delay for failure to pay the instalment.

In case the defendant sells or mortgages or gifts away the suit property to anybody, then the plaintiffs do take possession of the suit land.'

It will be noticed that the period for which the tenancy was to continue is not mentioned in the decree. All that it states is that the defendant was to continue as a tenant so long as he abided by the conditions about the payment of rent and about rendering service to the plaintiffs. The tenancy was therefore to continue foe an indefinite period. In the absence of a provision in the terms of the grant that the tenancy is not to continue after the grantee's lifetime, a lease for a definite period does not terminate on the death of the lessee but continues to the heirs for the remainder of the term. See Tej Chund v. Sri Kanth Ghose 3 M. I. A. 261: 6 W. R. 48 ; Burdakanth Roy v. Aluk Munjooree Dasiah 4 M. I. A. 321 : 7 W. B. 15 P. C. ; Kishori Lal v. Krishna Kamini 37 Cal. 377: 5 I. C. 500 and Chandanmal v. Vishvanath 46 Bom. 816 : A. I. R. 1922 Bom. 45. A lease for an in definite period, on the other hand, enures for the lifetime of the lessee only, unless there are words in the document or other circumstances indicating an intention to grant a perpetual lease. In Lakhraj Roy v. Kunhya Singh 4 I. A. 223 : 3 Cal. 210 , the Privy Council have observed (p. 225):

It a grant be made to a man for an indefinite period, it enures, generally speaking, for his lifetime, and passes no interest to his heirs unless there are some words shewing an intention to grant an hereditary interest. That rule of construction does not apply if the term for which the grant is made is fixed or can be definitely ascertained.'

This rule of construction has been applied in Several cases both by our High Court and by other High Courts. In Vaman Shripad v. Maki 4 Bom, 424, where under the lease the lessee was entitled to remain in possession so long as he pleased, it was held that the lease was determined by the death of the lessee. This case followed two earlier decisions of this Court in Gopalrao Vithal v. Bhavanrav Nagnath 1874 P. J. 279 and Suleman v. Asmad 1877 P. J. 177. The Calcutta and Madras High Courts have taken the same view. See Jagadish Chandra v. Bisweswari Debya A. I. R 1918 Cal. 823 : 41 I. C. 227; Ashutosh v. Chandi Charan, : AIR1927Cal179 ; Jogesh Chandra v. Makbul Ali 47 Cal. 979: A. I. R 1921 Cal. 474 and Saldanha v. R. C. Church, Mermajal : AIR1930Mad434 . A contrary view was taken in Bai Sona v. Bai Hiragavri, : AIR1926Bom374 . In that case the rent note, which was in respect of a shop, stated that so long as the tenant continued to pay rent, thelessor would not be entitled to get the shop vacated. It was held that the lease did, not terminate on the death of the lessee. The earlier decisions of this Court in the three cases mentioned above were not followed. The question was again considered in Abdulrahim v. Sarafalli 30 Bom. L. R. 1596 : A. I. R. 1929 Bom. 66. It was a case of a building lease to a firm represented by the plaintiff for a term of 25 years. The lease also stated that after the expiry of this period, the lessee could continue in possession so long as he paid rent. Patkar J. who delivered the judgment in this case, considered the decision in Bai Sana v. Bai Hiragavri : AIR1926Bom374 and the earlier decisions of this Court in Vaman Shripad v. Maki 4 Bom. 424; Gopalrao v. Bhavanrav 1874 P. J. 279 and Suleman v. Asmad 1877 P. J. 177, but stated that it was not necessary to decide which, of the two conflicting rulings should be applied to the facts of that particular case, as it had not been contended in that case that the lease was of a permanent character. The decision in the case, however, was in accordance with the view taken in Vaman Shripad v. Maki 4 Bom. 424 and the earlier cases and it was held that as the lessee was to continue in possession so long as he paid rent, it was to enure for his lifetime, that the will of the firm could only be exercised by the manager in whose name the lease had been passed and that the lease would therefore last till the manager was capable of exercising the will, i. e., till his lifetime. These Cases were again considered in Donkangouda v. Revanshidappa : AIR1943Bom148 .

4. The lease in that case was in the following terms (p. 1597):

'To Mahomedalli Isabhai Seth Bohri, Shop Erandole by the wahiwatdar of the shop, Sarafalli Mahomedallibhai Seth Bohri, shop Kasbe Erandole, party giving the Kararnama in writing Funumulla Shaik Mahamadmulla ... give the Kararnama in writing .... We have given the field within the said boundaries to you for constructing a Karkhana for ginning cotton. In consideration of a lump sum of Rs. 100 in words one hundred rupees by way of rent every year, this field is given to you for a period of twenty-five years from the Shake (year) aforesaid that is up to the end of Falgun of the Shake (year) 1839 for a ginning factory. Even if your factory remains closed during (the period of) this Karar still we shall go on taking from you the rupees in respect of our rent, every year. And after the expiration of the (period of the) Karar, when you will vacate the field of your own will, on that day we shall take (the same) into our possession. After the period of the Karar we shall go on taking the said rent as long as the field will remain (in your possession). As to the Karar for taking the money in respect of the rent, we shall take it year after year by the end of March .... And there is a well in a dilapidated condition in the field you should repair it and enjoy the well; we shall not give credit (for the amount) in the money (in respect of the rent). And on the day on which you will hand over the field into out possession, on that day you should remove the building of your Karkhana and we shall take the field and the repaired well into our possession. Till then the ownership of the field is yours. If I or any one from my heirs raise any objection, the same is void. If you plant trees etc., in the said number, you are not the owner of the said trees. After the field comes in our possession the ownership of the trees is ours. Only for twenty-five years the ownership is yours.'

It was held that the tenancy created was not permanent but was to enure during the lifetime of the tenant. The decision in Bai Sona v. Bai Hiragavri : AIR1926Bom374 was expressly dissented from in this case. It will therefore be seen that apart from Bai Sona v. Bai Hiragavri : AIR1926Bom374 the current of authority is in favour of the view that unless there are words in the document or other indications which would show that a hereditary grant was intended, the lease for an indefinite term enures for the lifetime of the lessee only.

5. Under the decree Bhikha Parshottam became a tenant for an indefinite period. In accordance with the above decisions, it will therefore have to be held that he was a life tenant, unless it can be shown that the terms of the lease contained in the decree, the surrounding circumstances and the subsequent conduct of the parties indicate that there was an intention to grant a perpetual lease. In support of his arguments Mr. Desai has first relied on the fact that the word 'defendant' is used in singular and that there are no words of inheritance and no reference to heirs or legal representatives of Bhikha Parshottam in the decree. But as pointed out in Kooldeep Narain Singh v. The Government 14 M. I. A. 247 : 11 Ben. L.R. 71 , the omission of words of inheritance does not show conclusively that the lease was not hereditary. See also Babu v. Sitaram 3 Bom. L. R. 768. Mr. Desai also relied on the provision in the decree about the rendering of service and stated that this showed that there was no intention to create a hereditary interest in the lease. The service to be rendered was that the tenant was to drive the landlord's cart and bullocks on two occasions in a year. This is not service of a kind which could be rendered by Bhikha Parshottam alone. It could equally well be renderd by any other person. Consequently this provision does not necessarily suggest that only a life estate was intended to be granted. The other circumstance on which Mr. Desai relied is the prohibition on alienation of the leasehold rights. This undoubtedly is a circumstance in favour of the plaintiffs. But, as pointed out in Bhabataran v. Trailokyanath : AIR1932Cal764 such a provision does not militate against the permanent character of the tenancy. Mr. Desai also invited our attention to the form in which receipts for rent were issued from 1923 to 1936. In each of these receipts it is stated that the land had been taken on lease for one year. But these receipts were passed by the plaintiffs and any statement made therein would not, therefore, bind the defendants. Also, as I have mentioned above, the plaintiffs' story that Bhikha Parshottam had given up his rights under the decree and had become an annual tenant has not been accepted by the lower Courts. There are in this case other circumstances which, in our opinion, clearly indicate that something much more than a lease to enure only during the lifetime of Bhikha Parshottam was intended. The suit in which the above decree was passed was filed by the plaintiffs' ancestors for recovering possession of Survey No. 174 from Bhikha Parshottam, who as stated in the plaint, had been cultivating it since several years. Bhikha Parshottam then contended that he was a permanent tenant. The suit ended in a compromise decree, and although a specific contention had been raised by the defendant Bhikha Parshottam that he was a permanent tenant, the decree is silent as to the duration of the tenancy. Bhikha Parshottam was 60 years old in 1911 when the suit was filed. His expectation of life at that time could not have been more than a few years. The decree makes provision for a revision of the rent every 12 years. This strongly suggests that the parties intended that the tenancy should continue even after Bhikha Parshottam's death. Another circumstance indicating a permanent grant is the provision giving the tenant a right not only to 2/3rds share of the fruits of fruit bearing trees, but also to 2/3rds share in the wood of all trees. The subsequent conduct of the parties leads to the same conclusion. Bhikha Parshottam died in 1927 leaving behind two sons, Chatur and Nathabhai. The plaintiffs did not then resume possession of the land, but allowed Chatur to continue as tenant. Chatur died in 1936-37 and since then the present defendant? have been in possession of the land. Defendant 1 is the son of Nathabhai, while defendants 2 and 3 are the sons of Chatur. The land has, therefore, been in the possession of Bhikha Parshottam's family for at least three generations. The only inference that can be drawn from these circumstances is that the lease was not intended to come to an end on Bhikha Parshottam's death, but was intended to operate as a perpetual lease, which could be terminated, as provided in the decree, only if there was default in the payment of rent or if the rights conferred by it were alienated.

6. After a careful consideration of all the circumstances, we are, therefore, of the opinion that a hereditary interest in the lease was created by the compromise decree, which was passed in 1912, and that the defendants are consequently permanent tenants in respect of 14 3/4 bighas out of Survey No. 174.

7. The appeal accordingly fails and is dismissed with costs,

8. With regard to cross-objections, a preliminary objection has been raised by Mr. Desai that these cannot be entertained, as the present appeal has been filed under Clause 15 of the Letters Patent after obtaining a certificate from Gajendragadkar J. The question whether the provisions of Order 41, Rule 10, which empower an appellate Court to demand from the appellant security for the costs of the appeal and to reject the appeal if the security is not furnished, apply to the appeals under the Letters Patent was considered by the Privy Council in Mt. Sabitri Thakurain v. Savi 48 I. A. 26 : A. I. R 1921 P. C. 80. Section 117 of the Code states that the provisions of the Code shall apply to all High Courts constituted by Letters Patent. Section 120 mentions certain provisions of the Code which are not to apply to the High Court in the exercise of its original civil jurisdiction. Order 49, Rule 3 enumerates certain orders, and rules which are not to apply to any High Court, and one of the rules mentioned therein is Rule 35 of Order 41. Order 41, Rule 10 is not mentioned in Order 49, Rule 3. It was, therefore, held by the Privy Council that the provisions of Order 41, Rule 10 applied to Letters Patent appeals in a High Court. This decision was followed by the Madras High Court in Venkatesham Chetty v. Motichand Gulabchand 49 Mad. 291 : A. I. R 1926 Mad. 816 , in which a Full Bench of that Court held that cross objections can be taken in an appeal under the Letters Patent from an original decree passed by a single Judge, In Abhilakai v. Sada Nand : AIR1931All244 , a distinction was drawn between jurisdiction and procedure and it was held that while the procedure in a Letters Patent appeal, like the procedure in any other civil appeal, is governed by the Civil Procedure Code, the jurisdiction to hear the appeal is derived from the Letters Patent and not from the Code, because the Code makes no provision for such appeals. These decisions were referred to in Khazanchi Shah v. Niaz Ali A. I. R 1940 Lah. 438 : 191 I. C. 417 in which Dalip Singh J. observed as follows (p. 441):

'In Venkateshan Chetty v. Motichand Gulabchand 49 Mad. 291 : A. I. R 1926 Mad. 316, a Full Bench came to the decision that in a Letters Patent appeal from an original order from a single Judge, cross-objections could be taken in Letters Patent appeal. The matter might be different in the case of a second appeal, for a Letters Patent appeal in such a case is only permissible with the certificate of the Judge who heard the case in single Bench. Therefore the question of cross-objections in such a case might raise a question of jurisdiction as distinct from a matter of procedure. But it is unnecessary to decide that point because in this case the Letters Petent appeal is from a first appeal and lies without any certificate. In such a case, it appears to me that the question whether appeals should be taken or cross-objections should be allowed is merely a matter of procedure and does not raise any question of jurisdiction.'

9. Mr. Desai has relied on these observations and has argued that as the appeal against the decision of a single Judge in second appeal is permissible only if he issues a certificate, and as there is no provision in the Letters Patent for cross-objections, the Court has no jurisdiction to entertain them and pass a judgment thereon. Personally I do not think there is much force in this argument. The jurisdiction to hear cross- objections is the same, whether the appeal is against the decision of a single Judge exercising original jurisdiction or whether it is against the decision of a single Judge exercising appellate jurisdiction. In both cases the jurisdiction to hear the appeal is derived from Clause 15 of the Letters Patent. It is true that in the latter case a certificate of the Judge who decided the matter is necessary, but after the certificate is given, the position is exactly the same. It is, however, not necessary to decide this point, because even if Order 41, Rule 22 applied to the present case, the cross-objections cannot be entertained. The rule states that any objection may be taken to a decree which could have been taken by way of appeal. Where a party cannot appeal from a decree, because nothing is decided against him, he cannot file any cross-objections to it. See Sahdeo Narain v. Kusum Kumari 1 Pat. 258 : A. I. R 1922 Pat. 483, Lakshmi Deli v. Hansraj Gupta : AIR1940Cal377 and Babusingh v. Godawari . The cross-objections must also be in respect of something decided by the particular decree, from which the appeal is preferred. See Debi Chand v. Parbhu Lal, : AIR1926All582 . The present appeal is against the decision of Gajendragadkar J. dismissing the plaintiff's appeal, which was against the decree passed by the lower appellate Court in so far as it related to survey no. 174. The defendants could not appeal against Gajendragadkar J.'s decision because it was wholly in their favour. The decision of Gajendragadkar J. also related to survey No. 174 and not to survey Nos. 32 and 45, in respect of which cross-objection have been filed. Cross-objections are in the nature of cross-appeals, and as the defendants could not prefer an appeal against the decision of Gajendragadkar J., it is not open to them to file cross-objections to it. We do not think that the view, which we are inclined to take, is likely to cause hardship, because it is always open to a party aggrieved by any part of the decree to appeal against it.

10. Our attention has been invited to an interlocutory judgment in Government of Bombay v. Hormasji Manekji, delivered on 13th April 1939 by Wadia J. in civ. App. No. 40 of 1938. In that case cross-objections were filed in an appeal under the Letters Patent, as in the present case. A question was then raised regarding the admissibility of these cross-objections. Wadia and Macklin JJ. who heard the matter held that in view of the decision of the Privy Council in Mt. Sabitri Thakurain v. Savi, 23 Bom. L. R. 681: A.I.R. 1921 P. C. 80, the respondent was entitled to file cross-objections and that the cross-objections should, therefore, be admitted to the file. It appears that no notice of the motion was issued to the appellant and consequently there was no appearance for the appellant. When the appeal came on for hearing, the cross-objections were not pressed and were, therefore, dismissed. The question whether cross-objections can be filed, even when the respondent is not competent to file an appeal, was, therefore, not considered in that case.

11. In our opinion, therefore, the preliminary objection raised by Mr. Desai must prevail. The cross-objections are accordingly dismissed with costs.


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