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Sm. Nanda Rani Nath Vs. Brojo Mohan Kundu - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata High Court
Decided On
Case NumberF.M.A. No. 447 with C.O. 202 of 1983
Judge
Reported inAIR1986Cal279
ActsTransfer of Property Act, 1882 - Section 110
AppellantSm. Nanda Rani Nath
RespondentBrojo Mohan Kundu
Appellant AdvocateBhaskar Ghosh, Adv.
Respondent AdvocateSudhis Das Gupta, ;Abha Roy and ;Anil Bhandary, Advs.
DispositionAppeal allowed
Cases ReferredCalcutta Landing and Shipping Co. Ltd. v. Victor Oil Co. Ltd.
Excerpt:
- .....air 1944 cal 84, calcutta landing and shipping co. ltd. v. victor oil co. ltd. construed the four years lease ending with the last day of the year excluding the anniversary of the day of commencement. though it has been contended by mr. dasgupta that these decisions are authorities merely for the purpose of determining the terminus of the tenure and not the duration thereof, we are unable to agree with mr. dasgupta on the point. in our opinion, their lordships were construing the lease with a tenure of four years and held that such a tenure ended on the last day of the year necessarily including the day of commencement for the purpose of calculating the tenure.14. for reasons aforesaid, the only point raised by mr. dasgupta being overruled, we accept the contention of mr. ghose and.....
Judgment:

Anil K. Sen, J.

1. This is an appeal against an order of remand preferred by the plaintiff and it arises out of Title Suit No. 141 of 1978 of the Second Court of the learned Munsif at Arambagh.

2. On 21st Bhadra 1369 B. S. corresponding to Sept. 7, 1962 one Radhika Prasad Nath (since deceased), husband of the plaintiff granted lease of the suit premises in favour of defendant-respondent for a period of 15 years from 1st of Aswin 1369 B. S. till the last day of Bhadra 1384 B. S. The lease was for business purpose and the monthly rent was Rs. 76/-. Radhika Prosad by a deed of settlement gave away the suit property to the plaintiff for her life. The lease was to expire on the expiry of Bhadra 1384 B. S. and the plaintiff by a notice dt. Aug. 10, 197' called upon the defendant to quit and vacate the suit premises on the expiry of the term of the lease and to deliver peaceful possession thereof to the plaintiff. Such possession not having been delivered, the plaintiff instituted the aforesaid suit for recovery of possession.

3. The defendant contested the suit by filing a written statement. He denied the material allegations made by the plaintiff and further disputed the plaintiff's right to demand delivery of possession or issue the notice D -Aug. 10, 1977 as issued by her. According to the defendant, he had been running a business in the suit premises and since he could not oblige the plaintiff by conceding the demand for an abnormal increase of the rent payable by him, the plaintiff had brought this false suit on false allegations.

4. On these pleadings several issues were raised including an issue as to whether the notice to quit was served and if served whether it was valid, whether the plaintiff reasonably required the premises for her own use and occupation and whether the defendant was a defaulter or not. No specific issue was raised on the point as to whether the provisions of the West Bengal Premises Tenancy Act ' hereinafter referred to as the said Act) have any application or not.

5. The parties adduced evidence including the registered deed of lease Ext. 1. The only issue that was substantially pressed before the learned Munsif was as to whether the plaintiff alone can sue for possession. In view of the deed of settlement the learned Munsif decided the issue in favour of the plaintiff and decreed the suit on the basis that the plaintiff was entitled to recover possession of the suit property on the expiry of the lease by efflux of its tenure. Though the learned Munsif found due service of notice dated Aug. 10, 1977 upon the defendant, he did not go into the question of its validity obviously because he was decreeing the suit on the expiry of the lease. The issues with regard to the plaintiff's reasonable requirement or default on the part of the defendant to pay rent were neither pressed nor decided. The defendant preferred an appeal being Title Appeal No. 200 of 1981. The learned subordinate Judge. First Court Hooghly allowed the appeal The learned Subordinate Judge held that since Sub-sections (1) and (2) of Section 3 of the said Act were inapplicable to the lease in dispute, lessee was entitled to all the protections under the said Act. Since, according to the learned Subordinate Judge, the plaintiff was not entitled to obtain a decree for possession against the lessee except on one or more of the grounds specified in Section 13(1) of the said Act, he set aside the decree passed by the learned Munsif and remanded the suit for re-trial and adjudication of the issues with regard to the reasonable requirement and default as also the issue with regard to the validity of the notice. That is the judgment dated Sept 15, 1982 which is the subject matter of challenge before us in this appeal.

6. Mr. Ghose, appearing in support of this appeal, has contended that the learned Subordinate Judge clearly misread the provisions of Section 3 of the said Act in holding that the disputed lease does not come within the purview of the said provision. The reasons given by the learned Subordinate Judge in support of his view in that regard are, according to Mr. Ghose, so very erroneous on the face of the record that it cannot be sustained. Mr. Dasgupta, appearing on behalf of the defendant respondent has been candid enough to concede the position that he cannot support the reasons assigned by the learned Subordinate Judge in concluding that Section 3 is not applicable to the disputed lease.

7. Sub-section (1) of Section 3 of the said Act provides that the provisions of the Act relating to rent and the provisions of Section 31 and Section 36 would apply to leases for residential purposes if the lease is for a period of not more than 20 years and had been entered into after 1948. It further provides that subject thereto the Act shall have no application to leases for a period of not less than 15 years. Sub-section (2) of Section 3 overrides Sub-section (1) subject to certain limitations but that Sub-section covers only leases entered into after 1965. Hence the learned Subordinate Judge is right in holding that Section 3(2) is not attracted to the disputed lease entered into in the year 1962. But he is clearly wrong in thinking that since the lease is for non-residenial purposes Section 3(1) will also not be attracted. He has failed to appreciate that the lease in question being for non-residential purposes the first part of Sub-section (1) would not be attracted, but the concluding part of that sub-section which provides 'save as aforesaid nothing in this Act shall apply to any premises held under a lease for a period of not less than 15 years' will clearly be attracted to render all the provisions of the said Act inapplicable to the disputed lease. In any event the learned Subordinate Judge has failed to appreciate the import of Section 3(1) which in its first part attracts only limited provisions of the Act and not Section 13 thereof which provides for protection against eviction.

8. This being the position, the contention of Mr. Ghose must succeed and this appeal should succeed on the short point that the learned Subordinate Judge went wrong in thinking that the provisions of the said Act being applicable to the disputed lease, the plaintiff is required to make out grounds for eviction under Section 13(1) of the said Act and also prove validity of the notice and is not entitled to a decree merely on proof of expiry of the lease. Mr. Dasgupta, appearing on behalf of the respondent, however, raised an interesting point to support the ultimate conclusion of the learned Subordinate Judge which, however, was not raised in either of the two Courts below. According to Mr. Dasgupta, the disputed lease being for a tenure from First of Aswin 1369 B. Section to the last day of Bhadra 1384 B. Section the date of commencement of the lease, that is First of Aswin 1369 B. Section should be excluded for the purpose of calculating the period of the lease under Section 110 of the T. P. Act. So calculated, according to Mr. Dasgupta the disputed lease will fall short of 15 years by one day and as such it being less than 15 years Section 3(1) of the said Act would be inapplicable and other provisions of the said Act would be attracted. The point thus raised by Mr. Dasgupta being a point of law we have allowed Mr. Dasgupta to raise such a point though it had not been raised in either of the two Courts below. Though ingenious on a closer scrutiny, we are unable to accept this contention of Mr. Dasgupta. Before we proceed to consider Section 110 of the T. P. Act and its true impact on the disputed lease we should first consider the terms of the lease and the intention of the parties on the point to determine what was the tenure which was really intended as between the parties. The terms are, however, very clear and specific to show that the tease was intended for a full term of 15 years from 1st of Aswin 1369 B. S. to the last day of Bhadra 1384 B. Section That means it would include therein both the dates at the two end. The lease provides that it is a lease for 15 years and in reciting the tenure it is said that

lu~ 1369 lkysj ifgyk vf'ou gksvNsgksbZrs vkjaHk dfjvkW lu 1384 lkysj Hkknzzekls lakarh tuhr iaFkjks c'kjsj tUeA

On the terms of the lease we have, therefore, no manner of doubt in our mind that the parties intended to create a lease whose tenure would include both the 1st day of Aswin 1369 B. Section and the last day of Bhadra 1384 B. S.

9. Now the short point which arises for our consideration is as to whether notwithstanding such an intention expressed. we should exclude the first day of the lease. that is the day of commencement in view of the first para of Section 110 of the T. P. Act. The material part of Section 110 may be set out hereunder.

'Section 110. Exclusion of day on which term commences --Where the lime limited by a lease of immoveable property is expressed as commencing from a particular day, in computing that time such day shall be excluded. Where no day of commencement is named, the time so limited begins from the making of the lease.'

Duration of lease for a year.

'Where the time limited is a year or a number of years, in the absence of an express agreement to the contrary, the lease shall last during the whole anniversary of the day from which such time commences.....'

10. According to Mr. Dasgupta, when the statute prescribes exclusion of the day of commencement of the lease and such prescription is not subject to any agreement to the contrary, the court has no option but to exclude the day of commencement for calculating the term of the lease. On a careful consideration of such a contention, we are unable to accept the same for two reasons. In the first place, first para of Section 110 of the T. P. Act only prescribes a rule of construction of an agreement and such a rule as a rule of construction must necessarily be subject to any agreement to the contrary intended by the parties either expressly or by necessary implication. Mr. Ghosh has rightly pointed out that the first para of Section 110 of the T. P. Act has merely adopted such a Rule often applied by courts in England though not without some divergence of judicial opinion over it. According to Mr. Ghose in England in all cases where such a rule is applied, it had always been so applied subject to any agreement to the contrary. Mr. Ghosh has rightly drawn our attention to Woodfall on the Landlord and Tenant, 28th Edition Vol-I page 206 where it has been observed that 'the words from the day of the date' mean either inclusive or exclusive, according to the context and subject matter, and the court will construe them so as to effectuate the intention of the parties'. This position has been made particularly clear by the decision in the case of Ladyman v. Wirral Estates Ltd. (1968) 2 All ER 197. In our opinion, Mr. Ghosh is right in contending that the position should not change only because such a rule of construction has been given statutory recognition in India by the first para of Section 110 of the T. P. Act to avoid the uncertainty having regard to some divergence of judicial opinion prevailing in England. In incorporating such a rule of construction in Section 110 of the T. P. Act the legislature, in our opinion, certainly never intended to override any agreement to the contrary when intended by the parties. It being a rule of construction of an agreement it must always be subject to any agreement to the contrary. In our opinion, this view of ours finds support from the following observations of Rau, J, in the Bench decision in the case of Calcutta Landing and Shipping Co. Ltd. v. Victor Oil Co. Ltd. AIR 1944 Cal 84, 'that the rule laid down in Section 110 is not flexible, whether for written or verbal leases. If, for example a written lease provides that it is for a term of three years commencing from Jan., 1, 1946, and ending on Dec., 31, 1948 both days inclusive, it would be impossible to apply rule laid down in Section 110 without making the lease self-contradictory. As observed by Viscount Maugham in 1940 AC 613 at page 621, some such phrase as 'unless the context otherwise requires' is often necessarily implied in statutory definitions even where it is not expressly inserted, and it may well be that Section 110 must be read as subject to a similar qualification'.

11. The second reason for not accepting the contention of Mr. Dasgupta is based on the express terms of Section 110 of the T. P. Act. In the second para of that section what is provided is that in determining the duration of a lease for a year, the lease shall be construed to last during the whole anniversary of the day from which such time commences. Therefore, the joint effect of the two paragraphs is that while the day of commencement is to be excluded, its anniversary is to be included to make a complete year. But para 2 lays down that such a rule shall be subject to an express agreement to the contrary. This reservation would, in our opinion, apply to the rule as a whole prescribed by the two paras because the two paras together determine the duration of the lease. Mr. Dasgupta wanted to contend that para 2 of Section 110 of the T. P. Act should be read independently of paragraph 1 and, according to Mr. Dasgupta, such reservation namely, 'in the absence of an express agreement to the contrary' must apply only in determining the question whether the anniversary of the day of commencement should be included or not In other words, according to Mr. Dasgupta, any agreement to the contrary would only exclude the anniversary in determining the date of the termination. On a careful consideration we are, however, unable to accept this contention. Para 2 of Section 110 of the T. P. Act prescribes the method of calculation of duration of leases for year and once we adopt the mode of construction suggested by Mr. Dasgupta if the lease is for a year, it would fall short of a year by a day. Section 110 of the T. P. Act prescribes the mode of determination of duration of a lease and in determining such duration both the paragraphs are integrally related. The duration cannot be determined unless the date of commencement is also taken into consideration. In our opinion, para 2 is a necessary corollary to para 1 and the two paras cannot be applied independent of each other. It was held as such by this court in the case of Charu Chandra Ghose v. Bankim Chandra Sett, (1938) 42 Cal WN 1115 and that view, in our opinion, is based on sound reasons.

12. These reasons are sufficient to overrule the contention raised by Mr. Dasgupta to support the ultimate conclosion of the learned Judge in the court of appeal below. But before we conclude we should consider the decisions cited before us. The first case cited by Mr. Dasgupta is Baneswar Pal v. Smt. Nirmala Jyoti, : AIR1979Cal396 . This decision is clearly distinguishable because there the point now under consideration did not arise for decision at all That was a lease executed with effect from an antecedent date and what was held was that though the tenure will be calculated with effect from the date so specified it would operate as an effective lease only from the date of its execution and not from the ante date. The next case cited by Mr. Dasgupta is the case of Pioneer Motors (Pvt) Ltd. v. Municipal Council, Nagercoil, : [1961]3SCR609 . In our opinion, this decision could be of no help-it being an authority for construing a statutory notice. It was held that where the law requires a notice 'not being less than one month' it must be clear one month's notice and, therefore, both the first and the last day of the month had to be excluded Ours is not a case of construction of a statutory notice, but an agreement between the parties having regard to the intention of the parties as reflected by its terms. The position is the same in the case of Thompson v. Stimpson, (1961) 1 QB 195 relied on by Mr. Dasgupta. Mr. Ghose has rightly drawn our attention to a later decision of a court of appeal in the case of Schnabel v. Allard (1966) 3 ALL E. R. 810 to show that the decision in Thompson's case was partly overruled. Be that as it may, this decision like the decision of the Supreme Court relied on by Mr. Dasgupta can be of no assistance to us for deciding the issue raised in the present appeal

13. We now come back to decisions on Section 110 of the T. P. Act itself. It was in the case of Benoy Krishna Das v. Salsiccioni, AIR 1932 PC 279 that the Privy Council pointed out that in view of clear provisions of Section 110 of the T. P. Act where the term of a lease is expressed as commencing from a particular day and does not specify when it ends, in computing the duration of the lease the first day being excluded the anniversary of the day of commencement should be included. Here in this case the Privy Council was interpreting a lease which merely provided for a tenure of four years commencing from 1-6-1921 so that both the paras of Section 110 were clearly attracted. It should, however, be noted that even in this case Privy Council took care to consider and reject an argument that a particular term in the lease excluded operation of Section 110 of the T. P. Act If Mr. Dasgupta be right in his contention that para 1 of Section 110 of the T. P. Act is not subject to any exclusion by any specific agreement to the contrary, the Privy Council would not have taken pains to consider such a contention and overrule the same on consideration of the terms of the lease. In our opinion, this decision of the Privy Council in a way supports the view we have taken and is not in any way inconsistent with such a view. It would be pertinent to note that a Division Bench of this Court in the case of Haralal Das v. Pasupati Charan Biswas, : AIR1955Cal226 expressly observed that where there is an express agreement to the contrary, Section 110 of the T. P. Act is excluded. Our attention was also drawn to another Bench decision of this Court in the case of Ganeshi Lal Sharma v. Snehalata Dassi, AIR 1947 Cal 68, where Mookerjee, J, who was a party to the decision in the case reported in AIR 1944 Cal 84, Calcutta Landing and Shipping Co. Ltd. v. Victor Oil Co. Ltd. construed the four years lease ending with the last day of the year excluding the anniversary of the day of commencement. Though it has been contended by Mr. Dasgupta that these decisions are authorities merely for the purpose of determining the terminus of the tenure and not the duration thereof, we are unable to agree with Mr. Dasgupta on the point. In our opinion, their Lordships were construing the lease with a tenure of four years and held that such a tenure ended on the last day of the year necessarily including the day of commencement for the purpose of calculating the tenure.

14. For reasons aforesaid, the only point raised by Mr. Dasgupta being overruled, we accept the contention of Mr. Ghose and allow the appeal. The judgment and decree passed by the lower appellate court being set aside. we affirm those passed by the trial court.

15. There will be no order for costs.

In view of the fact that we are allowing the appeal, the alternative application becomes redundant and is disposed of as such.

Sudhir Ranian Roy, J.

16. I agree.


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