Skip to content


Rahmat Bi Saheba and ors. Vs. R. Krishna Doss Lala - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai
Decided On
Reported inAIR1940Mad641
AppellantRahmat Bi Saheba and ors.
RespondentR. Krishna Doss Lala
Cases ReferredMuthukaruppa Pillai v. Annamalai Chettiar
Excerpt:
.....notice and the defect cannot be cured by their being added as defendants later on. the lessor filed a suit for rent impleading the mortgagees as well as the mortgagors and wanted a decree against both. 785. as regards the second issue whether the amendments not having been carried out in the original plaint the suit is bad against defendants 2 to 4, order 6 rule 18, civil p. it is of no use whatever when we have to see what was the lowest value that prevailed between 1929 to 1936. it is well known that prices of lands fell considerably between 1930 and 1934. for this suit the lowest value that prevailed during this period is the standard......we go back to the question whether notice is necessary.6. it is argued that the defendants are all joint tenants and that notice to one of them is enough] prima facie, when the section talks of notice to the tenant, it must include all the tenants if there are several tenants in respect of the same land. the policy of the act is to give the tenants a right to acquire the land itself at a proper value. it is obvious that while one joint tenant may not be in a position to acquire the land another might be in a position to do so and obviously the reason of the rule requires that notice should be given to all of them. the appellant relies upon the decision of the judicial committee reported in harihar banerjee v. ramshashi roy (1918) 5 a.i.r. 102. there the judicial committee was concerned.....
Judgment:

Somayya, J.

1. Defendants 1 to 4 are the appellants in this appeal which is directed against the decree of the City Civil Judge in O.S. No. 728 of 1935. The suit was filed by the plaintiff to eject the defendants from the land and superstructure bearing Door No. 46, Fakir Sahib Second Lane, Triplicane. The suit was originally filed against defendant 1 only on the footing that she alone was the tenant of the suit property on a monthly rent of Rs. 2. The plaint averred that the tenancy was terminated by a notice dated 9th March 1935 in which the plaintiff offered compensation for the value of the superstructure under the provisions of the Madras City Tenants Protection Act. Defendant 1 filed a written statement pleading that she was not interested in the property in suit and that three other persons, who were later on added as defendants 2, 3 and 4, were the persons entitled to the suit property as tenants. She stated that under a sale deed dated 10th June 1912, she, her husband, the late Dawood Saheb, and her son Abdul Wahab had purchased the leasehold interest together with the superstructure from the previous tenant, that her husband's one-third share now vested in defendant 4, that the one-third share belonging to herself was sold by her to defendant 3 Zulaika Bi by a deed dated 4th December 1934 and that the tenants who were really interested are defendants Q, 3 and 4. After the statement was filed, an application was made to the City Civil Judge to implead the three persons mentioned by defendant 1 as party defendants to the suit. The lower Court granted this application by its order dated 7th October 1935, but it would appear that the amendment was not incorporated in the plaint until the date of the judgment. Nevertheless, summonses were taken to the newly added defendants and they pleaded among other things that they were not served with the requisite notice under the Madras City Tenants Protection Act, and that therefore the suit was not maintainable against them under Section 11 of the Act. They also stated that the plaint disclosed no cause of action against them and that in any event they were entitled to protection under the Madras City Tenants Protection Act, and that they were prepared to pay the value of the land and to buy the same and requested the Court to fix the value in accordance with the terms of the Act. Three issues were raised, (1) whether the suit was bad for want of proper notice to quit, (2) whether the suit was maintainable as framed and (3) what is the amount of compensation payable to the plaintiff in case the defendants desire to acquire the land.

2. On issue (1) the lower Court held that the suit was not bad for want of proper notice. On issue 2 it held that the suit was maintainable as framed and on issue 3 it fixed compensation originally at the rate of Rs. 1800 per ground and varied the same on a review application made to it increasing it to Rs. 2050 per ground. Defendants appeal to this Court. It is argued on their behalf that the view of the lower Court on issues 1 and 2 is wrong and that the finding, of the Judge on issue 3 is vitiated by a consideration of number of documents which are irrelevant and not really admissible for the purpose of determining the value of the suit land in accordance with the terms o the Act.

3. On the first question, the view expressed by the learned Judge is that when a tenant dies or assigns his interest, there is no need to give notices to all the heirs in the former case or to the assignee in the latter case. He finds that the plaintiff had no notice of the claim of the other defendants and that therefore he was entitled to proceed with his suit for ejectment after notice only to defendant 1. The question is whether the notice given to defendant 1 alone is enough under the circumstances of this case. The leasehold interest in the land appears to have been originally held by one Mahomed Azeemuddin Sahib. He sold the site and the superstructure (he had only a leasehold interest in so far as the site is concerned) to three persons under Ex. 1 dated 10th June 1912. The vendees were (1 Dawood Saheb, (2) his wife Rahamat Bi Ammal and (3) his minor son Abdul Wahab Sahib. Rahamat Bi is defendant 1 in the suit and Abdul Wahab is defendant 2; he is now said to be a lunatic. By Ex. 2 dated 1st January 1915, Dawood Sahib gifted away his interest in the site and superstructure to Abdul Sukkur Sahib, his son by his senior wife, and to Ratima Bi, his daughter who is defendant 4. It is common ground that the right of Abdul Sukkur Sahib has vested in defendant 4. In 1934, defendant 1 conveyed her one-third share to defendant 3 by a registered deed.

4. From 1912, the date of Ex. 1, the rent due to the landlord seems to have been paid by the husband and wife, namely Dawood Sahib and Rahamat Bi and receipts were given in their names. Even after the death of Dawood Sahib which occurred in or about 1917 rent receipts were issued in the names of both Dawood Sahib and defendant 1. Ex. 4 series which take us up to 1931 are all in the names of these two. It is said that even afterwards down to 1935 receipts were issued in the names of defendant 1 and Dawood Sahib, her deceased husband. Of defendants 2, 3 and 4, defendant 2 is a lunatic; defendant 3 is a minor and defendant 4 is a major daughter. There is a dispute as to whether defendant 4 is married and is living with her husband or whether she is unmarried and is living with defendant 1. It seems to me to be unnecessary to decide which version is true. In either case she cannot be represented by defendant 1. The question that arises for decision is whether notice was necessary to defendants 2, 3 and 4 under Section 11, City Tenants' Protection Act. It is clear from that Section that the issue of the necessary notice is a condition precedent to the filing of the suit itself. Section 11 runs thus:

No suits in ejectment or applications under Section 41, Presidency Small Cause Courts Act, 1882, shall be instituted or presented against a tenant until the expiration of three months next after notice in writing has been given to him requiring him to surrender possession of the land and building, and offering to pay compensation for the building and trees, if any, and stating the amount thereof.

5. The prohibition contained in the Section is against the institution itself. Under the analogous provisions of Section 28, Clause 2, Provincial Insolvency Act, it has been held that leave of the Insolvency Court is a condition precedent to the filing of a suit by a creditor and that subsequent sanction cannot cure the initial defect. In this particular case, beyond adding them as parties later, it is not pretended that the requisite three months notice was given to them before they were sought to be impleaded as party defendants. Hence if they are entitled to notice it is clear that the suit must fail for want of requisite notice and the defect cannot be cured by their being added as defendants later on. So we go back to the question whether notice is necessary.

6. It is argued that the defendants are all joint tenants and that notice to one of them is enough] Prima facie, when the Section talks of notice to the tenant, it must include all the tenants if there are several tenants in respect of the same land. The policy of the Act is to give the tenants a right to acquire the land itself at a proper value. It is obvious that while one joint tenant may not be in a position to acquire the land another might be in a position to do so and obviously the reason of the rule requires that notice should be given to all of them. The appellant relies upon the decision of the Judicial Committee reported in Harihar Banerjee v. Ramshashi Roy (1918) 5 A.I.R. 102. There the Judicial Committee was concerned with the question whether there wag proof of service of notice to quit upon all the joint tenants. There the notices were addressed to all the joint tenants and were actually sent to each and every one of the joint tenants. What was wanting was only proof that these notices reached the various; addressees who were all joint tenants. Dealing with such a case the Judicial Committee held that proof of service of notice on one joint tenant would be prima facia evidence that the notice reached the other joint tenants. It is not an authority for the proposition contended for that no notice need be sent to all the joint tenants and that if a notice is sent only to one joint tenant it would be enough to found a suits for ejectment against all the tenants. This distinction is pointed out in two decisions of the Calcutta High Court. It is one thing to say that where notices were actually sent proof of service on one may be enough but it is another thing to say that no notice at all need be sent to each and every one of the joint tenants. In Bodardoja v. Ajijuddin : AIR1929Cal651 , this distinction is pointed out. Referring to a prior decision of the Calcutta High Court Bejoy Chand v. Kali Prasanna : AIR1925Cal752 , the learned Judges state:

On examination of the facts of that case however it appears that all that has been laid down in that case is that the notice, in order to give rise to this presumption, must be addressed to all the joint tenants and that, where the notice was addressed to one of the joint tenants, the mere service of the notice on the other joint tenants is not sufficient notice to quit according to law. In the, present case the notices that were issued were addressed to all the joint tenants.

7. In the decision reported in Bejoy Chand v. Kali Prasanna : AIR1925Cal752 it was laid down, that in order to bind a joint tenant the notice to quit must be addressed to and served on him. They also held that the question whether service of notice on one joint tenant is sufficient service on the other joint tenants is a question of fact to be decided on the facts of each case having regard to the presumption laid down in Harihar Banerjee v. Ramshashi Roy (1918) 5 A.I.R.102. The decision in Harihar Banerjee v. Ramshashi Roy (1918) 5 A.I.R. 102 was referred to in the judgment and it was pointed out that in the case that went up to the Privy Council the notices were addressed to all the joint tenants {vide pp. 622 and 623). I therefore hold that as the notice served on defendant 1 was addressed only to her, it is not enough to sustain the present action. In the present case after the assignment under Ex. 1, Dawood Sahib, defendant 1, and defendant 2 were all tenants-in-common. It is not pretended that defendant 2 was given any notices at all. Defendant 1's husband's interest devolved by successive transactions on defendant 4 and defendant l's right devolved upon the 3rd. The notice was addressed only to defendant 1 and was not addressed to any of the other defendants. Hence, this suit is not maintainable against defendants 2, 3 and 4.

8. It is then argued that defendants 2, 3 and 4 were all living with defendant 1, that defendant 2 being a lunatic and defendant 3 a minor, notice could only be given to defendant 1 under whose protection they are living, and that even as regards defendant 4 on the footing that she is an unmarried girl living with defendant 1, notice to defendant 1 would be enough. 'Whatever the position may be as regards defendants 2 and 3, whether the omission to state that the notice is given to defendant 1 as also representing defendants 2 and 3, it is clear that so far as defendant 4 is concerned, since she is a major, notice to defendant 1 is not enough. Merely because she is living with defendant 1 her right to have a proper notice issued to her cannot be gainsaid.

9. It is then urged that an assignee of a lessee is not entitled to notice to quit under the general law. It is said that an assignment of a lease operates only as a sub-demise under the Indian law and that therefore notice is unnecessary. Reliance was placed on the decisions of the Judicial Committee in Ram Kinkar v. Satyacharan and Hunsraj v. Bijoy Lal Seal . Neither of these decisions lays down any such proposition. What is laid down is that a sub-demise of the whole of the unexpired term does not operate as an assignment of the lease under the Indian law, though under the English law the position would be otherwise. In the decision reported in Hunsraj v. Bijoy Lal Seal the facts are these: The suit was brought to enforce forfeiture of a leasehold interest for an alleged breach of a covenant not to assign contained in the lease. The lessee executed a mortgage by way of a sub-lease for the whole of the unexpired term. It was contended that this amounted to a breach of the covenant against assignment and that the lessor was entitled to enforce the forfeiture clause. The suit was to recover possession of the property on the ground of forfeiture. Sir John Wallis delivering the judgment of the Board held that a sub-lease by a lessee for the unexpired residue of the term does not operate as an assignment of the lease. He pointed out that in this respect the Indian law differs from the English law. The prohibition was only against an ; assignment and so it was held that there was no forfeiture.

10. In Ram Kinkar v. Satyacharan the lessee created a mortgage of his leasehold interest by way of sub-lease of the whole of unexpired term of the mortgage. This was done by means of what is known as an English mortgage as denned by Section 58, Clause (c), T.P. Act. The lessor filed a suit for rent impleading the mortgagees as well as the mortgagors and wanted a decree against both. The mortgagees resisted the suit by pleading that they had not taken possession of the property and that they were not liable for the suit claim. The question that had to be decided was whether the document by which the mortgagees claimed their right was an absolute assignment. If it was an absolute assignment the assignee would, by the doctrine of privity of estate, be liable to the lessors for rent even though the original lessee (if he happens to be the person who entered into contract of lease) may continue to be liable on his contract. The Judicial Committee pointed out that even though an English mortgage is in the form of absolute sale, still it is not an absolute assignment of the lease itself because the mortgagor has still a legal interest in the property mortgaged. They therefore held that the mortgagees were not the absolute legal owners of the leasehold interest and that therefore they were not liable to the lessor for rent. They referred to the earlier decision in 57 Gal 11766 and held that the principle of that decision governed the case before them. Neither of these decisions is an authority for the proposition contended for by the appellant that an assignment of a leasehold interest operates only as a sub-demise. A sub-demise of the whole of the unexpired portion may not amount to an assignment and will not be so under the Indian law, but that is not the question with which we are concerned.

11. It is then urged that the plaintiff had no notice at all of the original assignment by Dawood Sahib and that therefore the lessor was entitled to treat Dawood Sahib as his tenant. If so, the plaintiff is met with the difficulty that Dawood Sahib died in the year 1917 or so, and the landlord seeking to eject, is bound to seek out the heirs and to serve the necessary notice on the person who at the time of the notice is actually entitled to the leasehold interest. If therefore, the plaintiff was not bound to give notice to the assignees of Dawood Sahib and was entitled to treat Dawood Sahib as his tenant in spite of his having assigned away the interest, then after Dawood Sahib's death the plaintiff did not give notice to his heirs who are defendants 1 to 4, defendant 1 being the widow and defendants 2 to 4 the children of Dawood Sahib. The view expressed by the lower Court that it the tenant happens to be a Mahomedan and he died, there would be a number of persons who would be entitled to fractional interests and that therefore the landlord is not bound to serve notices on all is begging the question. If the landlord is bound under the law to serve notices on the heirs it is no answer to say that there might be a number of heirs and that it would be difficult to find out and serve all of them.

12. Particularly in the case of the City Tenants Protection Act there is greater reason to hold that the plaintiff must serve notice upon the persons who are entitled to the leasehold interest at the time when he seeks to eject. As regards the right of an assignee of a lessee it was laid down in Kesavaswami Ayyar v. Narayanan Chetti : (1913)24MLJ228 that the landlord was bound to implead the assignee or the heir-at-law in a proceeding which he takes either for recovery of the land or for sale of the holding. It is pointed out that without impleading the assignee or the heir-at-law the proceeding would not bind the assignee or the heir-at-law : see also Muthukaruppa Pillai v. Annamalai Chettiar (1935) 22 A.I.R. Mad. 785. As regards the second issue whether the amendments not having been carried out in the original plaint the suit is bad against defendants 2 to 4, Order 6 Rule 18, Civil P.C., has got to be considered. That Rule provides that where an amendment of the plaint is ordered the amendment has to be carried out in the plaint within the time limited by the order or if no time is fixed within 14 days of the order unless the Court extends the time later on. In this case the plaintiff was absolutely in different and no amendments were actually embodied in the plaint. But my attention is drawn to an application made on the date of the trial, that is 2nd October 1936, on which date the plaintiff applied by C.M.P. No. 2534 of 1936, for extension of time to carry out the amendment in the plaint. It does not appear whether notice of this application was given to the other side but an order was passed on that date that orders will be passed along with the judgment and when the judgment was delivered on 8th October the Court said 'amendment will be made by the Court.' The Judge directed the officers of the Court to carry out the amendment and this appears to have been done. It is possible to view this as a sufficient compliance with the provisions of Order 6, Rule 18. I am not disposed to interfere with the judgment of the lower Court on this question.

13. On the third question the decision of the lower Court is very unsatisfactory. What has to be decided under the Act is the lowest value that prevailed within seven years before the date of the decree (in the case of suits) or of the order in ejectment (in the case of applications under Section 41, Presidency Small Cause Courts Act). In this case the point of time is October 1936; hence the standard fixed is the lowest value that prevailed between October 1929 and October 1936. Various documents have been relied upon by the lower Court which consist of decrees and judgments showing what values were fixed under the Act in 1930 and in other years. The value fixed in those suits would be the lowest value that prevailed between 1923 and 1930 and so on; it is of no use whatever when we have to see what was the lowest value that prevailed between 1929 to 1936. It is well known that prices of lands fell considerably between 1930 and 1934. For this suit the lowest value that prevailed during this period is the standard. Thus, Exs. E, F, J, K and L, would all be irrelevant. Then the Judge refers generally to suits that came before him within the last ten years and refers to the prices fixed in those suits. Great caution has to be observed in referring to the values fixed in other suits in view of the provisions of the Act. In the view I take on the first question, I do not think it necessary to examine fully the relevant documentary and oral evidence that bears on this question. If it were necessary $o decide it I would fix the value at Rs. 1750 a ground. On my finding on the first question the appeal is allowed and the suit is dismissed with costs throughout.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //