Skip to content


J. Mc. GaffIn and anr. Vs. Life Insurance Corporation of India - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberLetters Patent Appeal No. 229 of 1974
Judge
Reported inAIR1978Cal123,81CWN629
ActsEvidence Act, 1872 - Sections 18 and 114; ;Transfer of Property Act, 1882 - Sections 105 and 106; ;West Bengal Premises Tenancy Act, 1956 - Section 13(1)
AppellantJ. Mc. GaffIn and anr.
RespondentLife Insurance Corporation of India
Appellant AdvocateP.N. Mitter and ;D.N. Lahiri, Advs.
Respondent AdvocateC.N. Mukherjee, ;Ajit Kr. Chakraborty and ;Gopal Chandra Mukherjee, Advs.
DispositionAppeal dismissed
Cases ReferredBhojbhai Allarakha v. Hayem Samuel
Excerpt:
- .....calcutta dated 28th sept., 1966.2. the facts, in short, as stated in the plaint are as follows.the suit premises being flat no. 54, queens mansions at 12, park street, calcutta, was let out to the defendant no. 1 as a monthly tenant by the plaintiff respondent. the tenancy commenced from 25th may, 1959 and the monthly rent payable was rs. 225/-. there was a tenancy agreement which is an annexure 'a' to the plaint and under terms of clause (3) of the agreement, the tenant defendant no. 1 had no right to assign or transfer or sublet or part with the possession of the tenancy or any part thereof. the defendant no. 2 started occupying the said premises with his family without any consent or permission of the plaintiff. the defendant no. 2 claimed to be an authorised attorney of the defendant.....
Judgment:

S.K. Datta, J.

1. This appeal is against the judgment and decree of Chittatosh Mookerjee, J. dated 15th May, 1974 whereby Ejectment Suit No. 1594 of 1961 was decreed in reversal of the decision of the learned Judge, Tenth Bench, City Civil Court at Calcutta dated 28th Sept., 1966.

2. The facts, in short, as stated in the plaint are as follows.

The suit premises being flat No. 54, Queens Mansions at 12, Park Street, Calcutta, was let out to the defendant No. 1 as a monthly tenant by the plaintiff respondent. The tenancy commenced from 25th May, 1959 and the monthly rent payable was Rs. 225/-. There was a tenancy agreement which is an Annexure 'A' to the plaint and under terms of Clause (3) of the agreement, the tenant defendant No. 1 had no right to assign or transfer or sublet or part with the possession of the tenancy or any part thereof. The defendant No. 2 started occupying the said premises with his family without any consent or permission of the plaintiff. The defendant No. 2 claimed to be an authorised attorney of the defendant No. 1 but he had no relation with him. It was stated that this power of attorney was a dodge for creating a sub-tenancy in his favour. The plaintiff determined the tenancy by a notice to quit dated 20th April, 1961 calling upon the defendant No. 1 to quit and vacate the said premises on the expiry of 24th May, 1961 'or in the alternative, on the expiry of the calendar month of tenancy, which will expire next after the end of one month from the date of service of this notice'. This notice was addressed to the defendant No. 1 and also to defendant No. 2. It was further stated in the notice that unless vacant possession was given on the expiry of the tenancy, a suit for eviction would be instituted for non-compliance with the ejectment notice. This notice was sought to be served on the defendants by registered post, which notice on defendant No. 2 was duly received on April 24, 1961, while the notice on defendant No. 1 came back with the remark 'left'. A copy of the notice was sent by certificate of posting on 22nd April, 1961. A copy of the notice was also served by affixation on the suit premises. As the defendants failed to vacate and deliver possession, this suit was instituted for a decree for delivery of khas and vacant possession on ejectment of the defendant from the suit premises. The suit was instituted on 16th Aug., 1961.

3. The suit was contested by the defendants who filed separate written statements. It may be noted that the written statement on behalf of the defendant No. 1 was signed by the defendant No. 2 as his agent and constituted attorney. In the written statement of defendant No. 1, it was stated in para. 8 that although the tenancy at its inception was created on the 25th of the English Calendar month but by mutual agreement the rent was being paid to the plaintiff according to English calendar month and the plaintiff accepted the said arrangement and used to issue rent bill according to English calendar month. It was further stated that the tenancy was stated by the plaintiff from the 1st day of the month to the last day of the month according to English calendar and rent for the suit premises used to be collected and the rent-receipts used to be issued according to English calendar month. It was also stated that the rent for odd days of May, 1959 was collected separately and receipt for the same was granted and since thereafter the tenancy is continuing as a monthly tenancy according to English calendar month.

4. Both the defendants denied that the defendant No. 1 had sublet or assigned or transferred the suit premises as alleged in the plaint. The specific case was that the defendant No. 2 was appointed as a care-taker of the suit premises by the defendant No. 1 as he had to go out of Calcutta off and on. It was further denied that any statutory notice was served on the defendants. It was submitted that the suit in the premises should be dismissed.

5. Various issues were framed by the learned trial Judge and on a trial on evidence the learned Judge came to the finding that the defendant No. 1 did not sublet or assign or transfer the suit premises to the defendant No. 2 and that the defendant No. 2 did not fraudulently claim agency by power of attorney. It was further held that the power of attorney, Ext. B, by the defendant No. 1 to the defendant No. 2 and agreement Ex. C between the defendants about the arrangement as care-taker were genuine and valid documents. The court further found that while the statutory notice determining the tenancy by registered post was not served, the notice under certificate of posting was also not served. The service of notice by affixation was disbelieved. The court further held that the tenancy was according to English calendar month on the basis of rent receipts and, accordingly, the notice in question was illegal, invalid and insufficient. The suit was accordingly dismissed.

6. On appeal Mookerjee, J. held that the impugned notice was valid as the tenancy was from 25th of the English calendar month by agreement though rent was paid according to English calendar month. The notice requiring the tenant to quit on the expiry of the last day of his the then current month of tenancy was also a valid notice and the notice would also be valid even if the tenancy was from the 1st to the last day of English calendar month.

7. In regard to service of notice it was held that the registered notice which came back with the remark 'left' in respect of the defendant No. 1 could not be accepted as due service. It was also held that no reliance could be placed on the service of the ejectment notice under certificate of posting as the same did not necessarily establish that the said cover contained the ejectment notice. It was also not thereby established that the letter sent under certificate of posting had reached within time so as to terminate the tenancy of the defendant No. 1 according to law. The learned Judge however held that the service by affixation was a due service of the ejectment notice on April 24, 1961. The defendant No. 1 did not appear to give evidence about the service of the ejectment notice by affixation though he was at Calcutta on the relevant day. The court further held that the defendant No. 1 had, in fact, been residing elsewhere and allowed the defendant No. 2 to occupy the suit premises under the pretext of care-taker-ship. This was held to be an afterthought resorted to evade the rigour of the provisions of Section 13(1) (a) of the West Bengal Premises Tenancy Act 1956. Accordingly, the judgment and decree of the trial court was set aside and the suit was decreed. This appeal, as alreadystated, is against this decision.

8. Mr. P. N. Mitra learned advocate appearing for the defendant appellants raised various contentions in support of the appeal. He contended that the date of commencement of the tenancy as alleged by the plaintiff was never established as the tenancy agreement was not proved. He contended that in the notice to quit, it was stated that the tenancy would determine on the expiry of 24th May, 1961 or, in the alternative, on the expiry of the calendar month of tenancy which would expire next after the end of one month from the date of service of this notice. In the judgment under appeal, the court has found that there was no service of this notice either by registered post or by certificate of posting. In respect of the service by affixation he referred to the evidence of the person who served the notice being P.W. 2. This witness stated that he served the copy of the notice by affixing the same on the door of the premises in suit. But no actual date of service was mentioned. Accordingly, if the notice was served on any date after 24th April, 1961, the tenancy would determine on the expiry of 30th June, 1961, which was not the plaint case and on this ground alone the suit was liable to be dismissed as, in the plaint, the cause of action has been stated to arise either on 25th May, 1961 or on 25th June, 1961.

9. In opposing this contention, Mr. C. N. Mukherjee learned Advocate for the plaintiff respondent submitted that the commencement of the tenancy was not required to be proved in view of the admission made 'by the defendant No. 1 in para. 8 of his written statement. It was stated therein that the tenancy commenced on 25th of English calendar month but by mutual agreement rent was paid according to English calendar month. It was further stated therein that the rent for odd days of May of 1959 was collected separately and receipt for the same was granted while thereafter the tenancy was converted from the first to the last day of the calendar month. All these allegations however were not proved by evidence. In view of this admission, Mr. Mukherjee submitted that the tenancy admittedly commenced from 25th of the English calendar month and expired on the 24th of the following month and even if the notice was not served within 24th April, 1961 then the tenancy would be deemed to have terminated with the expiry of 24th June 1961 and that was also the alternative case made in the plaint. Mr. Mitra's rejoinder to this contention is that the admissions to the pleading are to be accepted as a whole and in that paragraph it has been stated that while the original tenancy was commenced from the 24th of the month subsequently it continued as a monthly tenancy according to English calendar month and for odd days of May 1959 rent was collected separately. This entire admission would have to be taken into account if at all. In support, he referred to the decision in Motabhoy Mulla Essabhoy v. Mulji Haridas, reported in 42 Ind App 103 : (AIR 1915 PC 2) where it has been observed by the Privy Council as follows :

'It is permissible for a tribunal to accept part and reject the rest of any witness's testimony. But admission in pleading cannot be so dissected, and if it is made subject to a condition it must either be accepted subject to the condition or not accepted at all. Therefore, the admission that the Promissory note was to be held as satisfied on Jan. 30 by a new debt on the part of Hyderally, provided that security was found for the whole debt by that date, cannot be treated as an admission that in any case the Promissory note was to be held as satisfied by Jan. 30'.

This decision was followed by this court in Fateh Chand Murlidhar v. Juggilal Kamlapat, reported in : AIR1955Cal465 with the following observation (at p. 468):

'The principle is that while a court of law is entitled to accept a part of the evidence of a witness and to reject another part, a pleading cannot be so dissected but must be taken either as a whole or left alone altogether. In other words, if a written statement contains an admission of certain facts which are favourable to the plaintiff but contains a denial of other facts favourable to him or an assertion of other facts which are unfavourable, the plaintiff must, if he wants to avail himself of the admission, take not only the first set of facts as truly stated, but also the second set of facts.'

The principle was applied to the facts of that case where it was held that if the respondents wanted to avail themselves of the statement of the appellants, they are bound to take not only the admission that Rs. 5,000/- had been paid and that it had been paid in pursuance of a form of settlement but also their further statement that they had been compelled to submit to the settlement by coercion.

10. These decisions, in our opinion, indicate that when a statement on admission is made in pleading together with further statement centering round, depending and standing on and conditional upon that admission, all the statements are to be taken and considered together in 'respect of such pleading. But if a statement on admission is made unconditionally and thereafter further admission is made which is not conditional or based on such earlier admission but is an assertion of the specific case not dependent or conditional upon the earlier admission the above principle will not be applicable. In the instant case, the assertion bv the plaintiff was that the tenancy was created on 25th of the month and this was admitted by the defendant No. 1. This admission was an unconditional one and did not depend on any other admission made by the defendant in respect of the commencement of the tenancy. The defendants' further specific case was that this tenancy was converted to a tenancy according to English calendar month later on. This specific case had nothing to do with the admission about the creation of the tenancy and thus its commencement. Accordingly, we are of the opinion that it was not necessary in the facts of the case to take the defence case of subsequent conversion of the tenancy 'according to English calendar month as a part of the admission regarding the creation of the tenancy. There is no dispute that no evidence has been adduced on behalf of the defendants to indicate that this tenancy was subsequently converted into a tenancy according to English calendar month as alleged.

11. We may further note in this connection that the uniform and consistent view of this court has been that payment of rent by a calendar month may be some or even an important indication about the tenancy being formed month by month according to calendar month. But that by itself would not be sufficient for holding that the tenancy was from the first day of the month to the last day of the month when receipt to that effect has been given on the fact of the established position that tenancy commenced from a particular day of the month. Reference may be made in this connection to the decisions in Carrara Marble and Tarrazo Co. Ltd. v. Charu Chandra Guha and in Baidyanath Bhattacharjee v. Nirmala Bala Devi, reported in : AIR1957Cal357 and : AIR1957Cal649 . In the premises, we hold that the tenancy commenced from the 25th of the month expiring on the 24th of the succeeding month.

12. The next point for consideration is whether the defendant No. 1 is guilty of any of the acts mentioned in Section 13 (1) (a) of the Act. According to the plaintiff, the defendant had sublet the suit premises or transferred the same to the defendant No. 2. According to Mr. Mitra, by an amendment of the plaint it was stated in para. 7 of the plaint that the defendant No. 2 was a sub-tenant of defendant No. 1 on a false claim of agency by a power of attorney. Accordingly Mr. Mitra submitted, the plaintiff's case is confined to subletting only. In evidence the plaintiff has not been able to establish that there was any subletting by the defendant No. 1 to defendant No. 2 and in absence of any other case established in evidence, the plaintiff was not entitled to succeed.

13. Mr. Mukherjee has drawn our attention to the other portions of the plaint, viz., in para. 8 (a) where it has been stated that the defendant No. 1 without previous order or consent of the plaintiff sublet the premises or transferred the same. The defendants produced an agreement of caretakership which is Annexure 'C'. This agreement recites that as the defendant No. 1 was living in Calcutta temporarily but wanted to retain his tenancy in respect of the suit premisses, he was appointing the defendant No. 2 as the caretaker of the flat of Queens Mansions. It has also come out in evidence that the defendant No. 2 had since shifted to the suit premises and had been residing there with his family. It has also transpired in evidence that the defendant No. 1 came to Calcutta in the meantime and also stayed once in the suit premises but at other times at different places. Mr. Mitra has referred to the decision in A. C. Bhattacharya v. Arun Krishna Roy reported in (1961) 65 Cal WN 1175 in which a Division Bench of this Court held that the mere fact that the defendant No. 1 permanently left the suit premises leaving the defendant No. 2 in occupation thereof, there could be no presumption under the Indian Statute about sub-tenancy or subletting. On this ground Mr. Mitra submitted that the plaintiff has failed to establish that there was subletting by the defendant No. 1 to the defendant No. 2 which was the only case made, according to him, and so available to the plaintiff.

14. It would appear to us however as has been pointed out by Mr. Mukherjee that the plaintiff has also made out a case of transfer of the suit premises to the defendant No. 2. The right of the tenant in respect of the tenanted premises is the right of possession subject to the payment of rent. Section 13 (1) (a) states inter alia that transfer in whole or in part of the tenanted premises would be a ground of eviction of the tenant. The transfer of the premises in the said provision in our opinion, means parting of possession of the tenanted premises either in whole or in part. There can be no dispute that under the alleged arrangement the defendant No. 2 was put in possession of the entire premises held by the defendant No. 1 which obviously implies transfer of possession of such premises. It may be of interest to note that even in the last clause of the agreement of caretakership it is provided that the defendant No. 1 would put in funds to the defendant No. 2 for payment of rent to the landlord and in case of his failure to do so the defendant No. 2 would pay rent behalf of the defendant No. 1. It further provides that all such amount by the defendant No. 2 would have to be paid first before the defendant No. 2 was called upon to restore possession of the flat to the defendant No. 1. It is thus obvious that if the defendant No. 1 failed to pay the requisite funds the defendant No. 2 would continue in the premises indefinitely while the tenancy continued to be in the name of the defendant No. 1. It is thus not merely a caretakership arrangement whose duty, as noted by the learned Judge, is to guard and protect the property. The agreement obviously indicates transfer of possession of the suit premises to the defendant No. 2 in the garb of an agreement of caretakership. It may be that the plaintiff has not been able to establish subletting by the defendant No. 1 to the defendant No. 2 but in considering whether the tenant is guilty of any acts within the operation of the provisions of Section 13 (1) (a), all circumstances need be considered. On an overall consideration of all facts and circumstances we are of opinion that the caretakership agreement was simply a garb to put the defendant No. 2 in possession indefinitely of the suit premises without the consent and permission of the plaintiff thereby attracting the operation of Section 13 (1) (a). We, therefore, affirm the finding of the learned Judge that ground of eviction under Section 13 (1) (a) has been established.

15. The next question relates to the service of notice. In regard to service by certificate of posting, the learned Judge has held that service of notice by such method is not in due compliance with the provisions of law as there is no indication as to the receipt of the letter by the addressee as also of the time when such letter could be presumed to have been received. There are however several decisions of this Court in which it has been held that certificate of posting would be a legal and valid mode of service of notice in appropriate circumstances. We may in this connection refer to the decision even in Harihar Banerjee v. Ramasashi Roy, (23 Cal WN 77) : (AIR 1918 PC 102) where the Privy Council quoted the decision in Gresham House Estate Company v. Rossa Grande Gold & Mining Co. (1870) 1 WN 119. It was observed there that if a letter is properly directed containing a notice to quit and is proved to have been put into the post office, it is presumed that the letter reached its destination at the proper time according to regular course of business of post office and was received by the person to whom it was addressed. In Harihar Banerjee's case it was held that the presumption would apply with greater force, when the letter was sent by registered post. In Chayya Debi v. Lahoriram ( (1963) 67 Cal WN 819) it was held that the presumption under Section 114, illustration (f) of the Evidence Act would also extend to certificates of posting but such presumption is rebuttable. In Kanak Lata v. Amal Kumar : AIR1970Cal328 the Court relied on the presumption of service of letters sent under certificate of posting under Section 114(f) of the Evidence Act. There could therefore be no dispute about the presumption arising out of service by certificate of posting in appropriate circumstances though presumption however has been held as rebuttable. In the case before us, the evidence about certificate of posting however is extremely unsatisfactory. It has not been established by the deponent the various steps that render service of such notice valid, viz., that the cover contained the notice to quit and that it was posted in the post office in such condition. There is in effect no evidence to support this aspect of the position about the enclosing of the notice in the letter and also posting the selfsame letter in the post office. In absence of such evidence it is hardly possible for the court to make presumption about service by certificate of posting.

16. About the affixation of the notice we also note serious infirmity. The witness stated to have affixed the notice had no knowledge of English and accordingly it was not possible for him to identify that the notice which was affixed in the suit premises was the notice to quit. It further suffers from the other lacuna that no date of service has been mentioned. In view of this position we are unable to accept that there was any proper service by affixation.

17. We shall now come to the mode of service of the notice by registered post. It appears that the notice was addressed both to defendant No. 1 and defendant No. 2. The notice addressed to the defendant No. 1 came back with the observation 'left'. It has been contended by Mr. Mukherjee relying on the decision in Sita Nath Mondal v. Soleman Molla reported in (1947) 51 Cal WN 650 that when a registered cover containing a concise statement of the attachment and sale proclamation as required by Section 167 (3) (c) of the Bengal Tenancy Act was sent by registered post but was returned unserved with the endorsement 'left' such service was held to be sufficient. This finding however is based on the particular facts of the case where the judgment debtor pleaded that he was residing not at the place at which the cover was addressed but somewhere else but he failed to substantiate the plea. This decision, in our opinion, does not lay down nor can there be a proposition that whenever a registered letter sent to the addressee was returned with the observation 'left' such service will be valid service in law. In this case there is no dispute that at the time of such service the defendant No. 1 was not in the premises to which the letter was addressed.

18. This notice as we have already stated was addressed to both the defendant No. 1 as also to defendant No. 2 and the notice which was addressed to defendant No. 2 was duly received by him on the 24th April, 1961. Mr. Mukherjee has submitted that admittedly the defendant No. 2 was the constituted attorney of the defendant No. 1 at the material time and as such service on the said defendant would amount to also service on the defendant No. 1 as well. He referred to the Bombay decision in Bhojbhai Allarakha v. Hayem Samuel, (1898) (ILR 22 Bom 754) (757) in which it was held that the notice given to the solicitor of the defendant was a proper notice on such defendant. It was observed that the solicitor did not disclaim authority to act for the defendant and also caused it to be conveyed to the defendant. Accordingly Mr. Mukherjee submitted that as the notice on the solicitor was held to be a sufficient notice, in the case before us the notice to the constituted attorney should also be deemed to be a proper notice on defendant No. 1' as well. In the plaint in paragraph 6 it has been stated that the defendant No. 2 had disclosed by an affidavit of 17th Nov. 1960 that he was the attorney and agent of the defendant No. 1, authorised by the defendant No. 1, to look after his flat as a caretaker. The power of attorney dated the 26th Sept. 1960 by the defendant No. 1 to the defendant No. 2 is Ext. B and by this power of attorney the defendant No. 1 appointed the defendant No. 2 as his lawful agent and attorney to look after the suit premises to institute, and defend suit or proceeding to sign his name in all plaints and verifications as also in all statements before any court or tribunal and to do all other acts all relating to the suit premises. Mr. Mitra submitted that even though this notice was duly received by defendant No. 2 it was addressed to him in his personal capacity and as such such notice would not be deemed to be a notice on defendant No. 1 in any event. On a consideration of the position it appeal's to us that the purpose of the notice is to make the person concerned aware of the purport of the contents of such notice. This notice was a notice of determination of the tenancy of the suit premises in respect of which the defendant No. 2 was appointed the agent and attorney of the tenant. The written statement on behalf of the defendant No. 1 has been signed by the defendant No. 2 as such attorney and it would be hypertechnical to say that this notice did not amount to a notice on the defendant No. 1 when it is served on his lawful agent and attorney. On a consideration of all circumstances, we are of opinion that this notice which was duly served on the defendant No. 2 was also a valid notice in respect of the defendant No. 1 through hig attorney, the defendant No. 2 who is the recipient of the letter (Ext. 3). Accordingly we are of opinion that the notice was duly served on the defendant No. 1 on 24th April, 1961 as the receipt bears out.

19. As all contentions raised on behalf of the appellants fail, this appeal is dismissed with costs.

G.N. Bay, J.

20. I agree.


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