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Ramdayal Vs. Kishorilal Chaudhary and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtRajasthan High Court
Decided On
Case NumberCivil Second Appeal No. 316 of 1961
Judge
Reported inAIR1969Raj24
ActsTransfer of Property Act, 1882 - Sections 105
AppellantRamdayal
RespondentKishorilal Chaudhary and ors.
Appellant Advocate R.K. Rastogi, Adv.
Respondent Advocate M.C. Bhandari, Adv.
DispositionAppeal allowed
Cases ReferredZimbler v. Abrahams
Excerpt:
.....of the parties in regard to issue no. 150. clause 4 of the document is important for in it the lessors stated that the parishad could stage the dramas as long as it liked, but that on the day on which it decided to leave the premises, it would pay the balance of the rent upto that date and would not be entitled to remove its material (tins, chairs etc. a-2. it would thus appear that while an annual rent was payable for the premises, the lessor (plaintiff) was a consenting party to the condition that the parishad could stage the dramas in the suit premises as long as it liked. a-2, the lease was expressed to be at the will of the tenant only by providing that it shall continue to stage the dramas as long as it liked. the conception of tenancy at will with a promise by the landlord..........whether this was really so, or whether the agreement between the parties constituted a perpetual lease, or a lease for the life time of the parishad, as has been argued by mr. bhandari on behalf of the respondents.11. before considering the legal effect of the aforesaid clause of document ex. a-2, it may be pointed out that it is a matter of much significance that there is no mention either in ex. a-2 or ex. a-l that the lessors or the lessor would not be entitled to evict the parishad for any specific period of time, or until it remained in existence and continued to stage the dramas. as i shall presently show, this is an omission of much significance. the fact therefore remains that, the agreement between the parties shows that, at the time of the execution of document ex. a-2, the.....
Judgment:

P.N. Shinghal, J.

1. This second appeal arises from the judgment and decree of the District Judge of Bikaner dated January 9, 1961, in a suit for recovery of arrears of rent and eviction.

2. The facts are quite simple. Plaintiff Ramdayal, and before him his pre-decersor Ram Ratan pass, were 'mahants' of the Dadoo Panthi 'math' at Sardar-sahar. They owned a 'nohra' and a 'Kothri' shown in the site-plan. Ram Ratan Dass let out these premises to the defendants for the residence of defendant Shobhachand and staging of dramas by the Manoranjan Natya Parishad of which defendant Shobhachand was the President, while defendant Himkar was the Secretary. The premises were taken on an annual rent of Rs. 150. The plaintiff pleaded that it was agreed between the parties that the rent would be payable in advance, but that the defendants did not pay the rent after Chaitra Sud 8, S. 2011, and that after calculating the rent for the intercalary month a total sum of Rs. 156/4 was recoverable from the defendants which they failed to pay in spite of repeated demands. The plaintiff asked for the eviction of the defendants on the grounds that they had not paid the rent, did not allow him to carry on worship at the 'samadhi' of Ram Ratan Dass (who* had died), and did not stage the dramas; and also because he did not any longer want to keep them as his tenants in the suit premises. For that purpose the plaintiff gave two notices to the defendants, and instituted the suit for recovery of arrears of rent and possession when the notices went unheeded. It may be mentioned that the plaintiff initially filed the suit against Shobhachand and Himkar, and impleaded the Manoranjan Natya Parishad and its members as co-defendants by a subsequent amendment, with the permission of the court.

3. The defendants denied the alleged lease of the 'kothri' and pleaded that it had been given free of rent for the residence of Shobhachand. As regards the 'nohra', they pleaded that it was given on rent by Ram Ratan Dass in S. 1982 on an annual rent of Rs. 100, on the condition that he would not get it vacated as long as the Natya Parishad continued to remain in existence and staged the dramas. It was pleaded that the annual rent was merely raised to Rs. 150 on March 12, 1946, but otherwise the old conditions remained intact. It was denied that the ren't was payable in advance. It was also denied that there was any 'samadhi' of Ram Ratan Dass, or that there was any question of worshipping it, and it was further asserted that the earlier terms of the lease were re-affirmed by a document dated October 13, 1955. The receipt of the notices was admitted, but it was pleaded that they were unauthorized. The main defence however was that as the Manoranjan Natya Parishad continued to be in existence, and was staging the dramas, the plaintiff was not entitled to bring a suit for eviction. The defendants filed documents Ex. A-2 dated March, 12, 1946 and Ex. A-1 dated October 13, 1955 in support of their plea.

4. After framing issues on the various points in controversy, the trial court decreed the suit for the recovery of arrears of rent at the rate of Rs. 150 per annum, but rejected the claim for possession. As that judgment of the trial court has been upheld by the impugned judgment of the District Judge of Bikaner dated January 9, 1961, the plaintiff has preferred this second appeal.

5. It may be mentioned that defendant Shobhachand, the President of Manoranjan Natya Parishad, died during the pendency of this appeal on May 26, 1964. The plaintiff-appellant therefore presented an application for the substitution of the names of Kishori Lal Chaudhary and Ram Kumar Jalan in place of the names of Shobhachand and Himkar as it were they who became the President and Secretary of the Natya Parishad. This was allowed. One effect of the amendment was that the plaintiff gave up his prayer for the eviction of the defendants from the suit 'kothri' for the reason that, according to the plaintiff, it came in his possession on the death of Shobhachand without the intervention of the court. There is thus no controversy in regard to the 'kothri' and there is also no dispute regarding the plaintiff's claim for arrears of rent. The dispute is now confined to the question whether the plaintiff was not entitled to get the 'nohra' vacated as long as the Natya Parishad was in existence and staged dramas in it. This was the subject matter of issue No. 5 and it is not necessary to refer to the other points in controversy for it is conceded that the finding of this court on this issue will govern the fate of the appeal.

6. In order to understand the controversy, it will be better if I state the case of the parties in regard to issue No. 5. As has been stated, the plaintiff gave two notices to the defendants. Notice Ex. 2 was given on February 14, 1956. In it the plaintiff stated that the defendants had misbehaved with him and that there were several other reasons why he did not want to continue their tenancy and terminated it. In the other notice Ex. 3 dated March, 12, 1956 also the plaintiff reiterated that he was not prepared to continue the tenancy under any circumstances, and asked for delivery of possession. As the notices went unheeded, the plaintiff filed the suit and pleaded, inter alia, that as he did not want to continue the tenancy, he was entitled to possession of the premises. The defendants, on the other hand, pleaded that, in terms of the agreement between the parties, the plaintiff was not entitled to evict them as long as the Natya Parishad was in existence and continued to stage dramas. It is on the basis of these pleadings that I have to consider the short question whether there is force in the plea of the defendants that the 'nohra' could not be got vacated as long as the Natya Parishad was in existence and staged the dramas, for this was the subject matter of the aforesaid issue No. 5.

7. The trial court examined the dispute and came to the conclusion that the tenancy was for an indefinite period and continued as long as the Natya Parishad staged the dramas in the 'nohra'. That court in fact went to the extent of holding that the lease was perpetual, even though no such plea had been taken by way of defence. The lower appellate court also held that as the 'nohra' was being used for the purpose for which it had been let out by the plaintiff, he could not oust the defendants under the very terms of the lease. That court therefore upheld the dismissal of the suit for eviction, and the question is whether this view is correct?

8. In order to arrive at an answer, it is necessary to examine documents Exs. A-2 and A-1 for their genuineness is beyond any dispute and it is admitted by the learned counsel for the parties that the fate of the appeal will in fact depend on the interpretation of the terms of these two documents. As this is essentially a question of law, it is not disputed that this court can examine whether any mistake of law has been committed in interpreting the two documents. The learned counsel for the parties also agree that the parol evidence of the parties is of no consequence. In fact Mr. Rastogi, learned counsel for the appellant, has addressed his arguments on the assumption that the Natya Parishad continued to remain in existence and staged the dramas, so that I need not examine the evidence to decide whether this was so, and shall proceed to consider the legal effect of the two documents.

9. Document Ex. A-2 is first in point of time being of March, 12, 1946. It was executed both by Ram Ratan Dass and plaintiff Ramdayal who admitted that the Natya Parishad staged its dramas in the 'nohra' on an' annual rent of Rs. 150. Clause 4 of the document is important for in it the lessors stated that the Parishad could stage the dramas as long as it liked, but that on the day on which it decided to leave the premises, it would pay the balance of the rent upto that date and would not be entitled to remove its material (tins, chairs etc.), until such payment.

10. Document Ex. A-1 was executed by plaintiff Ramdayal on October 13, 1955, in favour of the 'mantri' of the Manoranjan Natya Parishad confirming the terms of Ex. A-2. It would thus appear that while an annual rent was payable for the premises, the lessor (plaintiff) was a consenting party to the condition that the Parishad could stage the dramas in the suit premises as long as it liked. The mere fact that an annual rent was reserved for the tenancy did not, however, make it an yearly tenancy if the real intention of the parties was to create a tenancy at will. In fact it is not even the case of the defendants that their's was an yearly tenancy, and no importance can therefore be attached to the reservation and payment of annual rent. In spite of such a reservation, the tenancy could be a tenancy at will, and the question is whether this was really so, or whether the agreement between the parties constituted a perpetual lease, or a lease for the life time of the Parishad, as has been argued by Mr. Bhandari on behalf of the respondents.

11. Before considering the legal effect of the aforesaid clause of document Ex. A-2, it may be pointed out that it is a matter of much significance that there is no mention either in Ex. A-2 or Ex. A-l that the lessors or the lessor would not be entitled to evict the Parishad for any specific period of time, or until it remained in existence and continued to stage the dramas. As I shall presently show, this is an omission of much significance. The fact therefore remains that, the agreement between the parties shows that, at the time of the execution of document Ex. A-2, the lease was expressed to be at the will of the tenant only by providing that it shall continue to stage the dramas as long as it liked.

12. What then are the rights of a landlord for the termination of such a lease? Is it a tenancy at his will also? The question has been considered and answered both by courts in England and -in India, but as the Indian decisions have turned mainly on the English cases, I shall first refer to an important decision of that country.

13. It is reported in Spencer v. Harrison, (1879-80) 5 C. P. D. 97 and was decided as far back as 1879. After considering a case of an interest in land of uncertain duration determinable at the will of a stranger, the court made the following important observation at page 104, --

'On the other hand, an estate of uncertain duration determinable on the will of the grantor or lessor, or of their successors in title, is generally speaking an estate at will, and not a freehold: see Litt. 68, and Co, Litt. 55, - a; Com. Dig. Estate by Grant (H. 1); Fernie v. Scott It is true that Brudnell, C. J., speaking in the early part of the reign of Hen. 8, is reported to have said, 'A lease at will must be at the will of both parties: for if it be at the will of the lessor only, it is a lease for life,' see 7 M. & G. 46, n. But we can find no instance of a lease at the will of the lessor which is not also a lease at the will of the lessee, and therefore a lease at will. And Lord Coke, in Co. Litt. 55, a, says that a lease cannot be at the will of the lessor only. So. a lease at the will of the lessee is also at the will of the lessor'.

14. It appears that this view has all along been followed in England, but instead of referring to the decided cases I think it sufficient to refer to some of the important books which reiterate this view as a correct proposition of the law. In Halsbury's Laws of England, third edition, volume 23, paragraph 1150 reads as follows, --

'A tenancy at will is a tenancy under which the tenant is in possession, and which is determinable at the will of either landlord or tenant; and although upon its creation it is expressed to be at the will of the landlord only or at the will of the tenant only, yet the law implies that it shall be at the will of the other party also; for every lease at will must in law be at the will of both parties.

As in other tenancies, a tenancy at will arises by contract binding both landlord and tenant, and the contract may be express or implied.

A tenancy expressed to be at will takes effect according to its tenor, notwithstanding that a rent at an annual rate is reserved.'

15. In Foa's 'General Law of Landlord and Tenant,' eighth edition, it has been stated as follows at page 3, --

'Tenancies at will are tenancies which endure at the will of the parties only, i. e., at the will of both; for if a demise be made to hold at the will of the lessor, the law implies that it is at the will of the lessee also, and vice versa. The conception of tenancy at will with a promise by the landlord that it would not be determined has been disapproved.'

16. The nature of such a tenancy has also been considered in Hill and Red-man's 'Law of Landlord and Tenant', fourteenth edition, at page 24, as follows--

'A tenancy at will is a tenancy under which the tenant is in possession, and which is determinable at the will of either landlord or tenant; and although upon its creation it is expressed to be at the will of the landlord only or at the will of the tenant only, yet the law implies that it shall be at the will of the other party also; for every tenancy at will must in law be at the will of both parties. Like other tenancies, a tenancy at will arises by contract binding both lessor and lessee, and the contract may be express or implied.'

It has therefore been taken as a well settled proposition of the law in England that a tenancy which is determinable at the will either of the landlord or of the tenant is a tenancy at will and that even though upon its creation it is expressed to be at will of the landlord only, or the tenant only, the law, all the same, implies that it shall be terminable at the will of the other party also.

17. This rule of law was noticed and followed in India in K. R. Manicka Mudaliar v. T. Chinnappa Mudaliar, (1913) ILR 36 Mad 557. In that case their Lordships were concerned with a lease by which the lessees were allowed to hold for such time as they required or wished, and they held as follows, --

'We think the plaintiff is bound by the lease evidenced by Exhibit C. By that document the lessees are to hold for such time as they require, or wish, and it is argued that the contract is thus expressed to be a tenancy at the will of the lessee and so by implication of law a tenancy at the will of the lessor also. This contention is supported by reference to 'Coke on Littleton' page 55 and is in accordance with the law of England as 'laid down in 18 'Halsbury,' page 434.

We agree that the lease is- expressed as creating a tenancy at the will of the lessees and we have not been shown sufficient reasons for refusing to adopt the English law on the point. We think therefore that the plaintiff was entitled to terminate the tenancy, and he has done so.'

18. A similar point arose for consideration in Ramlal Sahu v. Mt. Bibi Zohra, AIR 1941 Pat 228, and after considering Coke on Littleton and Halsbury's Laws of England, their Lordships held that where a tenancy is terminable at the will of the tenant, it must be held to be terminable at the will of the landlord also as it is a tenancy at will. This view, has been approved and followed in Babu Lall Seth v. Gopi Lal Seth, AIR 1957 Pat 490. In that case the document stated that the defendants may remain in the house as long as they pleased, and their Lordships held, as a matter of construction that the tenancy was a tenancy at will and could be terminated by either party even though a monthly rent was reserved by it.

19. The point does not appear to have arisen directly for the consideration of this court, but I have been referred to a decision of Chhangani J. in Ram Niwas v. Nihal Singh, 1960 Raj LW 555 = (AIR 1961 Raj 203) where the learned Judge had an occasion to refer to (1913) ILR 36 Mad 557 and AIR 1941 Pat 228 and observed that the views expressed therein had his concurrence 'on considerations of the principles of mutuality.'

20. I am in respectful agreement with the view taken in the above mentioned cases and publications. I have therefore no hesitation in holding that as document Ex. A-2 shows that the tenancy was at the will of the lessees, namely, the defendants, it was equally a tenancy at the will of the lessor, namely, the plaintiff, as it was a tenancy at will.

21. Mr. Bhandari, learned counsel for the respondents, has cited some cases for a contrary submission. The first of these is Vaman Shripad v. Maki, (1880) ILR 4 Bom 424. I have gone through the judgment which runs in three sentences and I find nothing to show that their Lordships were at all concerned with the question whether the lease was a tenancy at will. The landlord merely made the argument that the lease terminated on the death of the lessee, and as it was upheld without much controversy, the decision cannot really justify the argument of Mr. Bhandari that their Lordship? took the view that a tenancy at the will of the lessee was not a tenancy at the will of the lessor also. In Bai Sona v. Bai Hiragavri, AIR 1926 Bom 374 the lessor agreed not to take possession as long as the lessee went on paying the rent; and it was therefore a case in which the will of the lessor had been expressed to the advantage of the lessee. Moreover, their Lordships merely relied on (1880) ILR 4 Bom 424 and did not really consider the question of mutuality of an option in the case of a tenancy at will. Smt. Nayan Munjari Dasi v. Khagendra Nath Das, AIR 1927 PC 116 is also not a case in point because the lessor had curtailed or restricted his power not to settle the land with any other person as long as the tenant agreed to pay proportionate rent for the land. That case does not at any rate, deal with a tenancy at will. So also. Ashutosh Lahiri v. Chandi Charan Mitra, AIR 1927 Cal 179 is of no relevance because it was decided on a consideration of the surrounding circumstances which negatived the plea of a tenancy at will and the question of mutuality of an option, as in the case of a tenancy at will, was not raised for consideration. Such a question was no doubt raised for consideration in Abdulrahim Funumulla v. Sarafalli Mahamadalli, AIR 1929 Bom 66, but that was a case of a lease for 25 years after which the lessee was to remain in possession so long as he paid the rent. It was therefore held that the lease represented a transaction where there was a lease for a particular period after which an option was given to the lessee to continue in possession on payment of rent. Such an option, if expressly given to the lessee, ought in the opinion of their Lordships, to enure for his benefit and 'the principle of reciprocity or mutuality cannot be invoked in such a case.' Mohammad Azizal Bari v. Moulvi Razi-uddin Mohammad Idris Khan, AIR 1939 Cal 423 was again a case in which the question of such a mutuality was not raised for consideration and after taking the surrounding facts into consideration their Lordships held that the intention was to allow the lessee to continue for an Indefinite period so long as he paid the rent and performed the other conditions of the lease. I am therefore unable to derive any assistance from that judgment also. The only other case on which reliance has been placed by Mr. Bhandari is Zimbler v. Abrahams, (1903) 1 KB 577. In that case the lessor's agent had signed a document by which he agreed that he shall not give the lessee a notice to quit, and it was not therefore a case of a tenancy at the will of both the parties.

22. It would thus appear that the cases cited by Mr. Bhandari are of no real assistance for deciding the present controversy and they do not persuade me to take a view different from that taken by courts in England and the two Patna cases referred to above, which, for reasons already stated, bear mightily on the point under consideration. On a construction of documents Exs. A-2 and A-1. I have therefore no doubts that the tenancy in dispute was a tenancy at will and carried all its characteristics as such.

23. Apart, however, from the interpretation of the terms of the two documents just referred, I find that the surrounding circumstances of the case, as far as they are available on the record, also go to establish the plaintiff's contention that it was a tenancy at will. Documents Exs. A-2 and A-1 show that the 'nohra' had already been constructed and was used for the staging of dramas. The defendants were allowed to stage the dramas and to use certain ear-marked and demarcated portions for seating the audience, locating the booking office, establishing a water hut and a tea-stall, and demarcating passage for the visitors of both the sexes, and as a stage, It was then agreed between the parties that the Parishad would be entitled to use all these premises as in the past, and to place some more tinsheds. The Parishad was not, however, given the right to make any permanent building, or to carry out any material alteration. It was also clarified that on the termination of the tenancy, the Parishad would simply remove its material i. e. its tin-sheds, chairs etc. after payment of the arrears of the rent, if any. There is therefore nothing to suggest or support the contention that it was the intention of the parties to create a permanent lease, or a lease for the lifetime of the Parishad. In fact, as has been stated, the defendants did not take a plea that there was any such tenancy and the plaintiff did not therefore have an opportunity oi establishing all those facts and surrounding circumstances which would have enabled him to prove that, apart from the written terms of the agreement incorporated in documents Exs. A-2 and A-l, the parties intended to treat the tenancv as a tenancy at will and acted on that understanding. Whatever material has, all the same, come on the record, and to which I have just made a reference goes, however, to support the view that the tenancy in question was a tenancy at will.

24. I have therefore no hesitation in holding that this is a case of a tenancv at will. According to law, a tenancy at will is determinable by either party on his expressly or impliedly intimating to the other his wish to put an end to it. So, as the plaintiff has given such an intimation to the defendants in his two notices Exs. 2 and 3 referred to above stating clearly that he did not want to continue the lease and had put an end to it, and as he has asked for delivery of possession, there is no reason why he should not be entitled to evict the defendants.

25. The appeal is allowed. The impugned judgment and decree of the lower appellate court are set aside andthe plaintiff's suit decreed for possession of the suit 'nohra', with coststhroughout on the respondents.


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