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Ananda Prakash Dey and ors. Vs. Lokendranath Maulik - Court Judgment

LegalCrystal Citation
SubjectContract
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 424 of 1970
Judge
Reported inAIR1972Ori269; 38(1972)CLT402
ActsContract Act, 1872 - Sections 45
AppellantAnanda Prakash Dey and ors.
RespondentLokendranath Maulik
Appellant AdvocateH.G. Panda, Adv.
Respondent AdvocateA. Mukherjee, Adv.
DispositionApplication partly allowed
Cases ReferredHiralal Neksi v. Agarchand Gorelal
Excerpt:
.....india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - but according to him, such payment is not binding on the co-landlord, namely, gosta gopal who is one of the plaintiffs in the suit and consequently his contention is that the plaintiffs are entitled to at best half of the rent due for the period from january, 1965 to december, 1966. it is the correctness of this contention that arises for determination in this revision application......one kanakabala was the admitted owner of the disputed house. she had three sons braja gopal, gosta gopal and nital gopal. braja gopal died in 1965 and his widow is manibala (plaintiff no. 3). manibala's sons and daughters are plaintiffs 1. 2 and 4 to 8. gosta gopal is plaintiff no. 9, nitai copal's wife was ashalata and her two daughters are sobha and krishna. braia gopal died in the year 1965, nitia in 1953 and ashalata in 1962. the disputed house was let out to the defendant on a monthly rent ofrs. 30/- by gosta gopal and ashalata. the registered deed of lease is ext. b. the plaintiffs filed m. s. no. 27 of 1967 against the defendant for recovery of arrears of rent alleged to be due from him from january 1965 to may 1967.2. the defendant pleaded that as gosta gopal and ashalata.....
Judgment:
ORDER

B.K. Patra, J.

1. This is a revision application by the plaintiffs against an appellate order of the Subordinate Judge. Baripada. One Kanakabala was the admitted owner of the disputed house. She had three sons Braja Gopal, Gosta Gopal and Nital Gopal. Braja Gopal died in 1965 and his widow is Manibala (plaintiff No. 3). Manibala's sons and daughters are plaintiffs 1. 2 and 4 to 8. Gosta Gopal is plaintiff No. 9, Nitai Copal's wife was Ashalata and her two daughters are Sobha and Krishna. Braia Gopal died in the year 1965, Nitia in 1953 and Ashalata in 1962. The disputed house was let out to the defendant on a monthly rent ofRs. 30/- by Gosta Gopal and Ashalata. The registered deed of lease is Ext. B. The plaintiffs filed M. S. No. 27 of 1967 against the defendant for recovery of arrears of rent alleged to be due from him from January 1965 to May 1967.

2. The defendant pleaded that as Gosta Gopal and Ashalata had jointly let out the disputed house to him, he was paying rent to them jointly, that after Asha's death in 1962, he paid rent jointly to Gosta and Asha's daughter Sobha till December, 1964 and that from January, 1965 till the end of December. 1966 he paid the rent exclusively to Sobha. It may be stated, here that before M. S. 27 of 1967 was instituted, Braja Gopal's heirs had filed a suit T.S. 63 of 1965 for partition claiming a half share in the properties belonging to Kanakabala. According to them, Gosta Gopal was entitled to the other half share and that Nitai Gopal's branch was not entitled to any share. We are not in this case concerned as to why Nitai Gopal's branch was denied any share in Kanakabala's properties. The fact, however, is that in December, 1966 that title suit was disposed of and the prayer of the plaintiffs in that suit was allowed. Obviously because Nitai Gopal's branch was not given any share in the suit house, the defendant with effect from January 1967 did not Pay rent due for the disputed house to anybody.

3. After hearing the Parties, the learned Munsif who tried the suit arrived at the conclusion that from January, 1965 to December, 1966 the defendant in fact Paid the rent due for the disputed house to Sobha alone but according to him payment of rent to one of the co-landlords is sufficient discharge of the defendant's liability and that consequently he cannot be called upon to pay the rent over again to Gosta Gopal. In view Of the admitted fact that no rent was paid from January. 1967 and as in view of the decision in T.S. 63 of 1965 Nitai Gopal's branch was not given a share in the disputed house, he passed a decree in favour of the plaintiffs only for Rs. 150/- being the arrears of rent due from January, 1967 to May, 1967. This decision was upheld in appeal by the learned Subordinate Judge.

4. Mr. Panda appearing for the plaintiff-petitioners does not assail the finding of the Courts below regarding the factum of payment of rent for the period from January, 1965 to December, 1966 to Sobha. But according to him, such payment is not binding on the co-landlord, namely, Gosta Gopal who is one of the plaintiffs in the suit and consequently his contention is that the plaintiffs are entitled to at best half of the rent due for the period from January, 1965 to December, 1966. It is the correctness of this contention that arises for determination in this revision application. The question, therefore, for consideration is this: When the tenant pays rent to one of the two co-landlords, whether such payment would give a full discharge to the tenants' liability in the absence of proof that the landlord to whom the rent was paid had authority from his co-landlord to receive the entire rent. Section 45 of the Indian Contract Act which is relevant may be quoted:

'45. When a person has made a promise to two or more persons jointly, then, unless a contrary intention appears from the contract, the right to claim performance rests, as between him and them, with them during their joint lives, and after the death of any of them, with the representative of such deceased person jointly with the survivor or survivors, and after the death of the last survivor with the representatives of all jointly'.

This section makes it quite clear that it is only the joint promisees acting jointly who can give a valid discharge to the promisor. No provision has been brought to my notice whereunder the joint right of co-promisees can be exercised by only one of them in the absence of any agreement as between them. Reliance is placed by Mr. Panda on a decision of the Mysore High Court in C. Venkatasetty v. Rangasetty, AIR 1952 Mys 68 which appears to be applicable on all fours to the facts of the present case. There it was held that in the absence of proof of agreement between two co-lessors that the rent paid shall be held by them jointly each being owner of the whole or of a mutual grant of authority between them to receive the rent, the tenant, by payment to one of the lessors is not discharged from his liability to pay the rent to the other and consequently the other is entitled to one half of the rent. A similar view is expressed in a decision of this Court in Gosta Gopal Dey v. Bholanath Das, ILR (1968) Cut 306 where the learned Judge held that one of the several decree-holders cannot give a valid discharge of the entire decree without the concurrence of the other decree-holders and that payment of the entire decretal dues out of Court to one of the several decree-holders is valid only to the extent of the share of that decree-holder unless it is proved that the decree-holder, who granted the discharge, had the legal authority to bind the other decree-holders by his acts. As has already been stated there is nothing on record to indicate that Sobha who received the rent for the period from January 1965 to December, 1966 purported to do so also on behalf of the co-landlord Gosta Gopal or that Sobha had legal authority from Gosta Gopal to receive rent on his behalf. In the circumstances, there appears to beconsiderable force in Mr. Panda's contention that payment to Sobha would not affect the right of Gosta Gopal to receive his share of rent.

5. Mr. Mukherjee for the opposite party relies on a decision of the Madhya Pradesh High Court in Hiralal Neksi v. Agarchand Gorelal, AIR 1957 Madh Pra 5. The learned Judge appears to be of opinion in that case that where it is proved that the payment of rent by the tenants has been made to one of the co-owners it is neither just nor equitable that the tenant should be asked to pay over again to the other co-owner and that it is open to the other co-owner to bring a suit for recovery of his share from the co-owner who has received the payment. With great respect I am unable to accept the reasoning adopted by his Lordship. In coming to the conclusion the effect of Section 45 of the Indian Contract Act does not appear to have been considered by the learned Judge. It appears to me that the view taken by this Court and the Mysore High Court referred to above is correct and is in consonance with the principle embodied in Section 45 of the Contract Act.

6. I would accordingly allow this application in part and order that over and above what the Courts below have decreed in favour of the plaintiffs, the latter would also be entitled to recover from the defendant a sum of Rs. 360/-being half of the arrears of rent due on the disputed house for the period from January. 1965 to December, 1966. In the circumstances, the parties will bear their own costs in this Court.


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