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Sevatha Muthu Asari Alias Savari Muthu Asari Vs. Reverend J.N.K. Musquita - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported in(1913)24MLJ642
AppellantSevatha Muthu Asari Alias Savari Muthu Asari
RespondentReverend J.N.K. Musquita
Cases ReferredVizianagaram Maharajah v. Suryanarayana
Excerpt:
.....as aforesaid they shall make good the expenses of the suit which the swamimars may institute in court, give up the terraced house also to the said kovil and get out. on the other hand the terms of exhibit b under which they were allowed to continue in occupation of the land clearly negatives, in my opinion, the existence of any tenancy either permanent or for any term when exhibit b was executed. he has failed to do so and exhibit b on the other hand shows that the defendant has no right to the land. this contention must, in my opinion fail. 8. in my opinion the provision with regard to forfeiture on disobedience of orders is clearly a condition and not a limitation of the rights of the lessee. 63 as having 'the appearance of a mere threat, such as in equity, in the absence of specific..........in office have for over 80 years been in possession of the land letting out this and other lands to tenants, and it is not suggested by the defendant that there are other persons in whom the property of the church is vested as trustees, i think the courts are justified in inferring that the plaintiff holds the land as trustee on behalf of the church.3. the next contention urged by mr. rozario who appeared for the appellant is that, even upon the terms of exhibit b, the plaintiff is not entitled to eject his client. he argues that, upon a proper construction of that document the appellant has either a permanent right to hold the land subject to the payment of the stipulated rent or that he is at least a tenant from year to year. if we accept this view of the document he would next.....
Judgment:

Abdur Rahim, J

1. The Respondent who is the Vicar and Manager of the Church of our Lady of Dolours at a place near Trichinopoly and as such has been for a long time in possession of the land in dispute which belongs to the church, has obtained a decree directing the appellant to deliver to him possession of the land and remove certain superstructures erected by the appellant on the land.

2. It is first of all argued before us that the plaintiff has not made out that the title to the property is vested in him; but I think that, having regard to the fact that he and his predecessors in office have for over 80 years been in possession of the land letting out this and other lands to tenants, and it is not suggested by the defendant that there are other persons in whom the property of the church is vested as trustees, I think the Courts are justified in inferring that the plaintiff holds the land as trustee on behalf of the Church.

3. The next contention urged by Mr. Rozario who appeared for the appellant is that, even upon the terms of Exhibit B, the plaintiff is not entitled to eject his client. He argues that, upon a proper construction of that document the appellant has either a permanent right to hold the land subject to the payment of the stipulated rent or that he is at least a tenant from year to year. If we accept this view of the document he would next ask us to say that the appellant's undertaking in certain contingencies which have admittedly happened to vacate the land and remove the building without making any claim for compensation is unenforceable. Now Exhibit B which is described as an agreement executed by the father and uncle of the appellant in favour of the then Vicar and Manager of the church is in these terms. It states that, as the executants had built a terraced house and been living there, they would (a) pay so much annually as the tax due, (b) at no time take in tenants in the house for rent or without rent...without the permission of the church (c) never associate with those who violate the rules of the Bible and cause disturbance (d) if the tax due be left outstanding that it will be a charge on the house (e) if they keep a shop or carry on trade at the house, they will pay every month the amount which shop-keepers generally pay as a tax; (d) they would not misbehave and quarrel or fight with others)(g) they would pay Rs. 14. They would pay Rs. 14, the amount of arrears of tax due from January 1826 to December 1831, Rs. 3/4 for the current July and Rs. for August; and (h) that, if without acting as aforesaid, they act contrary to the other orders also of the Swamimars, they shall pay off the manai tax of the said temple found due by them, remove the said terraced house without asking the price thereof, leave the said Kovil land and walk out. If they do not leave as aforesaid they shall make good the expenses of the suit which the Swamimars may institute in Court, give up the terraced house also to the said Kovil and get out. Then what happened was, the defendant demolished his old building and asked for permission to erect a new and more permanent building. The plaintiff would not grant him permission unless the defendant executed a fresh document containing not only the terms of Exhibit B but also an additional condition that the defendant would remove the building if the plaintiff at any time required the site. The defendant would not agree to these terms and, in spite of plaintiff's protest went on erecting a substantial building which he now values at Rs. 4500.

4. It is argued that Exhibit B shows that the defendant and his predecessors held the land under a building lease. In my opinion there is nothing in that document to support such a contention. Exhibit B which is executed by the defendant does not purport to grant any interest in, or right to the land; it only purports to be an agreement by which the defendant's father and uncle who had built a terraced house on the land undertook to do, and to abstain from doing the things mentioned therein. It does not appear what was the nature or value of that construction and how long before the date of Exhibit B it was erected. It is not possible to infer in favour of the appellant that his father and uncle had acquired any sort of interest in the land at the date of Exhibit B. On the other hand the terms of Exhibit B under which they were allowed to continue in occupation of the land clearly negatives, in my opinion, the existence of any tenancy either permanent or for any term when Exhibit B was executed. Then Exhibit B itself contains no words of demise and is not in terms a lease at all. But it is argued that, because a certain yearly payment is to be made to the plaintiff as tax or rent, we must presume at least a tenancy from year to year. Now it may be that, when a person in occupation of another's land pays rent annually, a presumption would be raised in favour of a tenancy from year to year in the absence of any other circumstances showing a different arrangement. But in construing a document we must read all the provisions together and see what is the cumulative effect of them all. So reading Exhibit B which no doubt has been acted upon by the parties and may be regarded as having the effect of a contract binding on both the parties, the only conclusion that is possible to my mind is that it was not the intention of the plaintiff's predecessor in office to confer any sort of title or interest on the then occupiers of the land but that they were to continue to occupy it practically at his will and pleasure, that is, as mere tenants at sufferance or tenants at will. It is however argued that the plaintiff does not say in the plaint that the defendant was a tenant at sufferance or a tenant at will. But he claims the right to eject the defendant because the latter refused to execute a fresh document as demanded of him, the effect of which would be to make him a tenant at sufferance. And I can find no admission on the part of the plaintiff of the defendant having any interest in the land. No doubt the plaintiff is bound by the terms of Exhibit B and he claims to eject him according to the strict terms of the contract. The plaintiff having proved his title, it is for the defendant to prove that he has a right to the possession of the land. He has failed to do so and Exhibit B on the other hand shows that the defendant has no right to the land. If my construction of Exhibit B is correct, no question as to whether the clause which I have marked as (h) is enforceable can properly arise. If there was no grant of any term and the defendant had no interest in the land, being merely a tenant at sufferance or a tenant at will there would be nothing to forfeit and it is riot therefore necessary for me to consider whether the clause in question if it be read as one of forfeiture properly so called was not intended to be merely a threat or is not repugnant to the grant. But I may observe that none of these questions were raised in the Lower Courts.

I would dismiss the appeals with costs.

Sundara Aiyar, J.

1. The plaintiff in the suit, out of which these second appeals arise, is the Vicar of a Roman Catholic church in the District of Trichinopoly and the object of the suit is to eject the defendant from a manai or house-site which he and his predecessors have been holding under the church for a long time. The predecessors of the defendant had built a house on the plaint site. According to the plaint the defendant removed the then existing building about 4 years before the suit and subsequently erected a new one. The plaintiff alleges that according to the terms of the holding, the defendant was bound to quit the sites removing the building, if he disobeyed any order of the priest; that, before the construction of the new building when the defendant asked the plaintiff's permission to put it up, the plaintiff had ordered him not to do so without executing a new document binding himself to remove the building and quit the premises whenever the plaintiff might require him to do so; that the defendant in violation of this order, made the new buildings without executing such a document; and that the plaintiff is therefore entitled to recover the property and to an injunction requiring the defendant to remove the building. The defendant's contention is that the plaintiff has no right to eject him, that he is bound only to pay rent to the plaintiff and is entitled to occupy the site permanently. He alleges that there was a tank in the plaint site originally and that it was given to the defendant's father for building purposes. He denies the existence of any agreement providing for his quitting the holding in case of any disobedience of the plaintiff's orders and claims a compensation of Rs. 4500 in case a decree for possession is passed in the plaintiff's favor. He also denies the plaintiff's right as Vicar to maintain the suit as the property of the church is not vested in him.

2. Both the Lower Courts have held that as the plaintiff and the previous Vicar have long been in possession of the property, the plaintiff is entitled to maintain the suit for possession. They have also found that Exhibit B put forward by the plaintiff as supporting his right to eject the defendant is genuine and that, according to its terms, the plaintiff is entitled to eject the defendant for disobedience of his order. The District Munsif held that the defendant was entitled to Rs. 1000 as compensation for the building erected by him. 'But the District Judge reversed that finding, as, according to the terms of Exhibit B, compensation was not claimable and the defehdant was bound to remove the building on delivering up possession of the leased site.

3. Three questions have been argued in second appeal. First whether the plaintiff is entitled to sue for the recovery of the property; secondly, what is the value of the defendant's tenancy; thirdly, whether the plaintiff is entitled to eject the defendant for disobedience of his order.

4. Mr. Rozario contends that, the church being admittedly the owner of the property and there being nothing to show that the property of the church is vested in the Vicar, the plaintiff has no right to sue and relies on the decision of the Bombay High Court in Wardens of Nossa Senora v. Bishop Hartmann (1851) P.O.C. 333. Attention is also drawn to the plaintiff's statement in his deposition that the site belongs to the Goanese Mission and it is urged that the trustee of the properties belonging to the Goanese Mission is the proper person to sue. The plaintiff's statement is that he is the parish priest and manager of the church. Mr. Barton for the Respondent contends that, in the absence of any evidence to the contrary, the plaintiff as the manager is entitled to maintain the suit. He also urges that the plaintiff's possession of the church and its property is sufficient to entitle him to sue and points out that the plaint site was purchased in 1826 in the name of the Vicar and Manager. He relies on the decisions in Navojoi Manicltji Wadia v. Dastur Kharsedji Mancherji I.L.R. (1903) B. 20 and Jivanji Jamshedji v. Barjorji Nasservanji I.L.R. (1909) B. 499. These cases really do not support the plaintiff as the suit in the present case cannot be said to be an infringement of the plaintiff's right of possession. There is, however, no evidence on the defendant's side that the property sued for is vested in any one else than the manager, and I am of opinion that the Lower Courts were entitled to presume that the trusteeship of the property is vested in the plaintiff in the circumstances of the case. This contention must, in my opinion fail.

5. The next question is what is the nature of the tenancy in this case. Exhibit B dated 1832, which, as already observed, has been found to be genuine by the Lower Courts, was executed by the defendant's father and another (no lease executed by the plaintiff's predecessor in office has been produced). It shows that the executants of Exhibit B were in possession prior to the date of Exhibit B and that they had already built a terraced house. It says:-'We shall pay annually to the said temple people according to the accounts of the Kovil at the rate of Sakkaram Ton one and fanams 8 being the tax due for the 3 1/8 manais which we have built....' Then follow covenants not to sub-let or alienate without the priest's permission and not to 'associate with those who violate the rules of the Bible and cause disturbance' and for payment of increased rent in case the executants or others keep a shop or carry on trade at the premises. Then follows the provision, which is material for the decision of this case. 'If without acting as aforesaid we act contrary to the other orders also of the Swamimars we shall pay oft the manai tax of the said temple found due by us, remove the said our terraced house without asking the price thereof, leave the said Kovil land and walk out.' It will be observed that there is no provision in the document fixing the term of the lease. But the rent provided is a yearly one, and the presumption in such cases is that the tenancy is at least one from year to year. See Dixon v. Bradford and District Railway Servants Coal Supply Society*. Although the subject of the lease was a manai or vacant site and it is expressly stated in Exhibit B that the building was put up by the tenant there is no direct evidence that the lease was made for the purpose of building.

6. Mr. Rozario asks us to presume in the circumstances of the case that the land was granted for the purpose of building and, as the grant was not for any specific term, he contends that the tenant must be taken to have a right to occupy the land permanently. He relies on Navalram v. Javeri Lal (1904) I.K.B. 444, and Promada Nath Roy v. Sri Gobind Chowdry I.L.R. (1905) C. 648 in support of his contention. I should be inclined to accept this contention, although a lease for the purpose of building need not necessarily convey a right to occupy the premises in perpetuity-See Mohim Chandra Sirkar v. Anil Banjdu Adhikary(1909) 13 C.W.N. 513. But I do not rest my judgment on this ground. The plaintiff does not allege in his plaint that the defendant is a tenant at will or a tenant from year to year, nor does he say that the tenancy, if it be one from year to year, has been terminated by proper notice to quit. As I understand the plaint, the plaintiff rests his right to eject on the ground that, the defendant having broken one of the conditions of the lease has forfeited the right to continue in possession. If, in his opinion, the tenancy was for a limited term, the plaintiff ought to have alleged it definitely in the plaint. He does hot say that Exhibit B was the origin of the defendant's tenancy. Such a position is in fact negatived by the terms of Exhibit B.

7. This leads to the consideration of the question, whether the plaintiff is entitled to eject on the ground of the defendant's violation of one of the terms of the lease, namely, that the defendant should give up possession and walk out' if he disobeys the orders of the priest. I assume for the purpose of this judgment that the tenant was bound to obey the orders, not only of the person to whom Exhibit B was addressed, that is, the plaintiff's predecessor in the office of priest, but of the plaintiff also as the successor of the lessor. What now is the effect of the clause relied on, which has already been set out in full? Exhibit B, as already mentioned contains several covenants to be performed by the lessee. Rendering obedience to all the orders of the lessor is not one of such covenants. There is a positive covenant in Exhibit B to pay an annual rent for the site, and an additional rent if a shop be kept or trade carried on at the house. There are also covenants not to underlet or to alienate without the lessor's consent and not to 'associate with those who violate the rules of the Bible and cause disturbance.' There is no covenant expressed as such to obey all the orders of the lessor, but in the clause setting out the result of a breach of the covenants already expressed, disobedience of orders is stated as a further contingency on the happening of which the lessee will lose his right of possession.

8. In my opinion the provision with regard to forfeiture on disobedience of orders is clearly a condition and not a limitation of the rights of the lessee. The language of the instrument is what has to be looked to in deciding whether it could be regarded as a limitation. I can find no words defining the term of the lease to be, either in the first instance, or in the alternative, so long as the lessee should obey the lessor's orders.

9. Proceeding, then, on the footing that it is a condition, I confess I have serious doubts, looking at the broad and vague terms of the provisions, whether it could be regarded as anything that would work a forfeiture and whether it should not be regarded in the language of Strange and Philipps, JJ. in Chidambara Pillai v. Manikka Chetti (1862) 1 M.H.C.R. 63 as having 'the appearance of a mere threat, such as in equity, in the absence of specific mention of the nature of the failure which was to bring down the penalty of forfeiture, ought not to be enforced.' This Court held in Vizianagaram Maharaja v. Surya Narayana I.L.R. (1883) M. 307 a stipulation that a tenant shall ' be bound to obey the order of the Circar could not be held to justify the inference of a tenancy at will,' as these words are ' no more than common words in which a tenant professes his respect for his superior lord.' Mr. Rozario contends that, according to the clause relied in Exhibit B, forfeiture would be incurred only if the tenant acted contrary to the other orders of the Swamiar and as there is no allegation that the covenants referred to were infringed, no forfeiture was incurred. It must be admitted that the language of the clause is vague to a degree. The respondent contends that it should be read as meaning that if any (not all) of the expressed covenants should be violated and also if any other orders of the Swamiars should be disobeyed, the right to possession would be lost. I do not say that the Respondents' contention is unreasonable or that the parties to Exhibit B might not really have meant it. At the same time it has to be remembered that the court will not stretch an extended hand to a lessor who wishes to enforce a clause of forfeiture (See Woodfall's Landlord and Tenant, 18th Edn. p. 210). I should hesitate to hold that the language of the document is clear enough to support Mr. Barton's contention.

10. But, assuming that we may interpret the clause as meaning that disobedience of any orders of the lessor would work a forfeiture is it still free from the vice of vagueness and uncertainty? I asked the learned Counsel for the Respondent daring the argument whether he would contend that the condition related to each and every kind of order, whatever its nature or quality might be. At one time he seemed inclined to restrict the clause to reasonable orders and apparently also to orders connected with the enjoyment of the premises leased. But ultimately, he seemed to feel compelled to contend that it would relate to any order whatsoever, and urged that the lessee having agreed to the clause with his eyes open, he had no right to demur to it. I find it impossible to suppose that the parties could really have intended that disobedience of an order not connected with the holding of the premises, should work a forfeiture, as that would be defeating the very object of the lease. If they did, it would be void as being repugnant to the nature of the estate to which it was annexed (See Mc Adam on Landlord and Tenant Vol. I p. 568.)

11. Nor, again, can it be supposed that it was understood that the lessee was bound to obey even the unreasonable orders of the lessor I am of opinion that it is not possible, from the language of the instrument, to ascertain what kind of order is referred to in the condition, if the clause was in reality anything more than an injunction to be a faithful tenant as held in Vizianagaram Maharajah v. Suryanarayana1. I must hold that the clause, in so far as it relates to disobedience of orders, is too vague and uncertain to be enforceable in a court of law. The plaintiff's contention would really destroy altogether the rights secured to the tenant under the lease. As already stated the clause in question is not intended to fix the term of the lease but to add a condition of forfeiture. The respondent's case substantially, is that he could by an order of his own directing the tenant to execute a writing agreeing to hold as a tenant, at will convert him into such a tenant though he was not one before. The position would be exactly the same if in this case the plaintiff had ordered the defendant to execute a document, agreeing to give up the premises on demand, even though the defendant had not attempted to put up any new building. Apart from the uncertainty of the clause, I feel perfectly sure that an order, the disobedience of which would work a forfeiture, could not be one directing the defendant to extinguish his own rights by agreeing to give up possession whenever demanded.

12. I would allow the appeal and dismiss the suit with costs throughout.

13. Under Section 98 of the Code of Civil Procedure these second appeals are dismissed with costs.

14. Against the Judgment of Abdur Rahim J. which prevailed, defendant (Respt.) filed an appeal under the Letters Patent.


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