Salil Kumar Datta, J.
1. This appeal and the connected cross-objection arise from the appellate judgment and decree of affirmance decreeing the landlords' suit for recovery of possession of the suit premises held under a tenancy governed by the West Bengal Premises Tenancy Act, 1956. According to the plaintiffs' case, the suit premises comprising shop buildings on plot No. 3980, khatian 492 in Kazi Mohalla, being holding No. 42 within Bankura Municipality were held by the defendants as a monthly tenant-at-will under Bhusan Chandra Dey father of the plaintiffs at a monthly rent of Rs. 25/-, By a registered deed of gift dated Bhadra 9, 1370 B. S. (August 26, 1963) executed by their father, the plaintiffs became owners, amongst others, of the said premises and the defendants became their tenants in respect thereof under the same terms and conditions. The month of the tenancy was according to the Bengali calendar month and the rent for every month was payable by the 7th of the succeeding month. The defendants defaulted in payment of rent for months from Falgoon1369 B. S. to Sravan 1370 B. S. and were not entitled to any protection against eviction. By a subsequent deed of assignment dated Aswin 2, 1370 B. S. (September 19, 1963), the plaintiffs became entitled to the rent for the said period from the defendants. The plaintiffs also reasonably required the suit premises for the use and occupation of the plaintiff No. 3 Tirth Nath Dey who was unemployed and necessity was felt to engage him in the business of cotton goods and ready made garments for which the said plaintiff had adequate funds. The tenancy was terminated with the month of Kartick 1370 B. S. by a notice to quit duly served but the defendants failed to quit and vacate and the suit, in the circumstances, was filed for recovery of possession of the suit premises on ground of reasonable requirement as also default In payment of rent from Falgoon 1369 B. S. to Kartick 1370 B. S. and also for rent for the period ending with Kartick,1370 B. S. compensation from Agrahayan 1370 B. S.
2. The defendants contested the suit by filing a written statement, admitting the tenancy, originally under Bhusan Chandra Dey but it was denied that the month of the tenancy was according to Bengali Calendar month. It was also contended that rent for every month was payable by the 20th of the following month and accordingly rent for Falgoon 1369 B. S. was tendered to Bhusan Chandra Dey on 12th Chaitra, but he avoided acceptance of the rent under some pretext and further tender to him was made on 22nd following. But as he refused to accept rent, it was remitted by postal money order on 25th Chaitra 1369 B. S. but it was refused. Rent for Falgoon and Chaitra 1369 B. S. was accordingly deposited with the Rent Controller and rent for subsequent months had been so deposited till Bhadra 1370 B. S. in name of Bhusan and thereafter on service of notice of the gift, in name of the plaintiffs. It was accordingly contended that the defendants were not defaulters in payment of rent. It was further denied that the plaintiffs required the suit premises for their own use and occupation as none of the plaintiffs were unemployed, and they lived with their father and looked after his large business in gold and silver works. The notice to quit was invalid and insufficient and the defendants' tenancy had not been thereby determined. Further after the receipt of notice, the defendants remitted all arrears within seven days as required but the same was refused. The suit in the premises should be dismissed.
3. The suit was tried on evidence before the learned Munsif and during trial P.W. 1 Bhusan stated that the suit premises were let out to the defendants on 22nd Bhadra 1361 B. S. at the time of their induction. On the basis of the above evidence, it was contended that the tenancy was from 22nd of the Bengali month to 21st of the succeeding month. The learned Munsif held that as the rent was tendered, paid or deposited according to Bengali Calendar month, the tenancy was from 1st to the last day of the Bengali month. Notice was thus valid, legal and sufficient. The learned Munsif further found that the plaintiffs did not require the suit premises for their own use. At the same time, it was found that the defendants were defaulters in payment of rent and not entitled to protection under the Act. The suit was accordingly decreed by judgment dated November 9, 1964 but one year's time was granted to the defendants to vacate.
4. An appeal was preferred therefrom by the defendants while the plaintiff also filed a cross-objection against the finding as to reasonable requirement. The appellate court affirmed the findings of the learned Munsif about the month of the tenancy and the validity of notice. It was also found, in agreement with the learned Munsif, that the plaintiffs did not reasonably require the suit premises for their own use and occupation but nonetheless the defendants were defaulters in payment of rent. The decree for recovery of possession on ground of default was accordingly affirmed and the appeal as also the cross-objection weredismissed. The present appeal is by the defendants against the said decree while the cross-objection is by the plaintiffs against the said findings on reasonable requirement.
5. Mr. Sakti Nath Mukherjee, the learned Advocate appearing for the tenants appellants has contended that the courts below erred in law in holding that the tenancy was according to Bengali calendar month when the tenancy admittedly commenced from 22nd of a Bengali month and there was no evidence that there was any agreement or arrangement at any time for converting the month of the tenancy in accordance with the Bengali calendar month. He has further contended that the courts below erred in thinking that in view of the payment of rent according to calendar month the tenancy month must also be according to such calendar month. Mr. Samir Kumar Mukherjee, the learned Advocate for the respondents, has contended that the finding of the month of tenancy was a finding of fact and further there was no specific denial in the written statement about the plaintiffs' case to the month of the tenancy, as required under Order 8, Rules 3 and 4 of the Code of Civil Procedure and payments and deposits of rent also belied the defendant's case about the month of the tenancy. Further as was held in Siddik Mahommed Shah v. Mt. Saran. AIR 1930 PC 57 (1), no evidence is to be looked into to support a case not made in the written statement. The defence Advocate's rejoinder is that the case has been made out in the written statement sufficiently denying the month of the tenancy and the plaintiffs have to prove their case affirmatively in absence of any admission of the part of the defendants.
6. Both parties have relied on the same decisions in support of their respective contentions to which we shall now refer. There has been and can be no dispute that the month of the tenancy may not be identical with the month of payment of rent. In Tirtha Nath v. Sri Iswar Bamlingadeba, (1957) 61 Cal WN 170, it was held that in absence of any denial of the month of the tenancy or indication in lease that it was to commence from date of its execution, the manner of payment of rent indicated an understanding that the tenancy would run according to the calendar month. In Carrara Marble & Tarrazo Co. Ltd. v. Charu Chandra Guha, : AIR1957Cal357 , the court observed that mere payment of rent from month to month according to a calendar month, would not be sufficient by itself to prove the month of the tenancy, for the month of tenancy may be different from the month according to which rent is realised and such payment may onlv be a modeand nothing more. The view taken in Arunachella Chettiar v. Ramiah Naidu, (1906) ILR 30 Mad 109 that the agreement to pay rent at the end of the calendar month would indicate that a monthly tenancy commencing at the middle of the calendar month should coincide with the calendar month was disapproved and not accepted as an enunciation of any principle of law. The court referred to the decision in Benoy Krishna v. Salsiccioni, 37 Cal WN 1 - (AIR 1932 PC 279) where the agreement to pay monthly rent by the 7th of the succeeding month was not accepted as an agreement excluding Section 110 of the Transfer of Property Act as it merely provided the mode of payment. In Baidyanath v. Nirmalabala, : AIR1957Cal649 , the court observed that the manner or mode or payment of rents may be an important element or factor to be considered on the point, but it cannot be the sure indication of the month of the tenancy in all cases.
7. There can be no dispute that the mode of payment of rent or in other words rental month or year, if such expression may be used, may not be identical with the month or year of tenancy. Before a court can arrive at such conclusion, it must be established by evidence to be so and in absence of other facts the mode of payment would be a strong factor lending support to it. It is however admitted in evidence in this case that the tenancy commenced from 22nd of a month and except the evidence of payment of rent no evidence has been adduced by the landlords to prove or establish that the tenancy was at any time thereafter converted from the first day to the last, day of month. Mere payment of rent according to Bengali calendar month may be very well the mode of payment and such payment, without further evidence' In the circumstances, cannot lead the court to hold that the monthly tenancy was according to Bengali calendar month. The plaintiffs-respondents contention that there is no specific denial about the month of the tenancy in the written statement appears to be incorrect, as this allegation was in fact specifically denied and it has also to be remembered that the plaintiff has to prove his case affirmatively so that the court may hold so in his favour on materials before him. It is accordingly held that the tenancy in suit is not according to the Bengali calendar month but from 22nd day to 21st day of each Bengali month. The notice terminating the tenancy with the Bengali calendar month is thus invalid and in absence of legal determination of the tenancy, the suit cannot succeed.
8. This would be enough to dispose of the appeal and the cross-objection but in view of the very able and interesting arguments advanced by the learned advocates of the parties on the connected questions and for complete disposal of the matters at issue between the parties, I feel called upon to deal with the other points. The plaintiffs' case is that the tenants were defaulters in payment of rent from Falgoon 1369 B.S. to Sravan 1370 B.S. and by the deed of gift of the premises to the plaintiffs, they became entitled to the benefits of the defaults of the said months and the tenants were not entitled in law to any protection in the events that have happened in the course of the proceeding, namely that no deposit regarding arrears was made either under Section 17(1) or 17 (2) of the Act. According to Mr. Mukherjee for the appellants, the plaintiffs were not entitled in law to take advantage of these defaults which is one of the grounds of eviction for the reason that in view of the assignment of rent by the subsequent deed, rent lost its character as rent and became actionable claims only, so that there was no default in payment of rent. Reliance was placed on the decision on Daya Debi v. Chapala Debi, : AIR1960Cal378 , in which in a case under the present 1956 Act with which we are concerned, it was held by a Division Bench that a claim for arrear of rent loses its character as rent as soon as it is assigned and are thereby converted to actionable claim. Accordingly in a suit for eviction, the tenant is not required under Section 17 (1) of the 1956 Act to deposit arrear of rent due to an ex-landlord.
9. Mr. Mukherjee for the respondents contended on the other hand that by the gift deed the concerned property with all rights appertaining thereto including default in payment of rent as a part of the cause of action was assigned to the plaintiffs, who thereby became entitled to the benefits arising from such defaults. Reliance was placed on the decision of Kanto K. Mullick v. Jyotish, AIR 1949 Cal 571. in which the court was considering defaults committed by the tenant in a case governed by Calcutta House Rent Control Order, 1946. It was obseved:
'...... that no tenant is entitled tothe benefit of paragraph (clause (4) of Section 9) unless he pays rent due by him In respect of such house. The benefit he is also to receive is also in respect of such house. It does not provide that the landlord for the time being alone is entitled to recover possession if rent is unpaid......It is manifest that default by a tenant is not limited in its effect and to be available only to a person who, at the tune of default, was the landlord,'
Reliance was also placed on the decision In Manmatha v. Sasanka. (19551 96 Cal LJ 53 in which it was held that the landlord could avail of the defaults prior totransfer, as the same tenancy continued and what was necessary to be proved under proviso to Section 14 (3) read with Section 12 (1) (i) of the West Bengal Premises Rent Control Act, 1950 was that the tenant made defaults on three occasions of two months each as mentioned in the said statutory provisions. In Charubala v. Madhusudan, : AIR1956Cal170 it was held, following the above case that a transferee landlord could avail of the earlier defaults. In Basumati v. Sannulal, (1957) 61 Cal WN 909. following Charu Bala's case, : AIR1956Cal170 , it was held that a superior landlord who became a direct landlord of a sub-tenant by operation of law, could avail himself of the defaults committed by the sub-tenant when intermediary tenancy was valid and effective. In a subsequent decision in Maya Singh v. Md. Basir. (1961) 65 Cal WN 759 it was held that the decision in Daya Debi's case does not militate against the earlier decisions referred to above as the real question is still whether the tenant still remains protected or not. This case is also under the 1950 Act.
10. Mr. Mukherfee for the respondents also put great reliance on the unreported decision of the Supreme Court in Ramchandra Narsey & Co. v. Wamanrao V. Shenoy, Civil Appeal No. 361 of 1966. D/- 13-3-1969 = (AIR 1969 NSC 72). This was a case for recovery of possession of a tenanted premises on eviction of the tenant on ground of default in respect of a tenancy governed by the Bombay Rent, Hotel and Lodging House Rates Control Act, 1947. The suit was instituted by the original landlord and during the pendency of the suit, he sold the suit premises to his wife who was impleaded as the plaintiff No. 2. It was contended that as there was an assignment of the arrears of rent, these arrears ceased to be rent and became debts in law and there could be no question of paying the same or tendering them in court as required by Section 12 (3) (b). Reliance was placed on the case of : AIR1960Cal378 (supra) by the tenant, which however was not considered by the court as the assignment there took place prior to the institution of the suit and it was observed:
'...... Suffice it to say that on thefacts of this case, the rule laid down in that case (Daya Debi's case) is not apposite. Herein admittedly, on the date the suit was instituted, there was a valid cause of action for evicting the appellant What the court has to consider in every case is whether the suit is validly instituted. If a suit is validly instituted a decree must necessarily follow, unless the law prescribes otherwise. Undoubtedly the present suit is based on a valid cause of action. Therefore all that we have to seeIs whether any subsequent event has happened necessitating the denial of reliefs asked for. Paying or tendering the money under Section 12 (3) (b) is merely a concession granted to the tenant. He may avail of that concession or he may not. If he avails of that concession then the relief of ejectment asked for will not he granted though the landlord will ordinarily be entitled to the costs of the suit. There is no denying the fact that at the time the suit was instituted the first respondent was the 'landlord' as defined in the Act and at the time the decree came to be made, the second plaintiff was the 'landlord'. The deed of assignment has not been printed. Therefore we do not know its terms. We have to proceed on the basis that the first respondent had assigned all his rights, title and interest in the suit premises to the second plaintiff. We must assume that in particular he had also assigned his right in the decree that may be passed in the suit. Learned counsel for the respondents referred to us in this connection the decision of the Calcutta High Court in AIR 1949 Cal 571. Undoubtedly that decision supports the contention of the respondent but it is not necessary for us to rest our decision on the basis of the rule laid down in that case.'
On the above authority Mr. Mukherjee contended on the basis of the deed of gift of the premises, all right, title and interest of the original landlord, including the cause of action for default was conveyed to the plaintiffs who had thus a valid cause of action for the suit for eviction. Mr. Mukherjee did not put any reliance in support of his case for eviction on ground of default, on the deed of assignment of rent for the reason that by such assignment the rent was converted to debts and the plaintiffs were given the right to recover the same, On the contrary he based his case on the deed of gift itself, which according to him, as already stated, transferred with the property all right appertaining thereto along with the cause of action for the suit arising from default. This right for eviction provided under Section 13, Clause (i) was thus preserved and passed on to the plaintiffs, who were thus entitled to take advantage of the defaults in suit,' though they were committed prior to their becoming the owners landlords of the suit premises. The tenants were thus liable for the consequences of such defaults unless they were entitled to protection under the Act, Mr. Mukherjee further contended that in cases of default, the tenant could escape the consequences of the default by deposit, not of rent in default, but, of amount calculated at the rate of rent with interest as laid down in Section 17 and further that the tenant for his protection against eviction, wouldbe liable to deposit or pay the amount once again even if the original landlord who was entitled to the said rent in default realised the same by suit or otherwise. Mr. Mukherjee further drew my attention to Clauses (f) and (ff) of Section 13 (1) as also to Sub-section (3A) which provided for the bar to remedies otherwise available to the landlord and contended that there would be specific provisions in the Act if legislature intended that the prior default could not be availed of by a transferee landlord.
11. The appellants' reply to the above contentions was that the effect of such interpretation would be to put the tenant to double jeopardy which could not be the intention of the legislature. Further in the present case, there was an assignment of rent prior to the institution of the suit, so that the cause of action arising from the default was destroyed even before the institution of the suit. Mr. Mukherjee also drew my attention to the proviso to Section 109 of the Transfer of Property Act which provides that the transferee is not entitled to arrears of rent before the transfer. Accordingly, it was contended that the transferee landlord would not also be entitled to the benefits arising therefrom and assignment of rent was really transfer of actionable claims and not of rent. Mr. Mukherjee also contended that benefit of default was inseparable from arrear of rent and there being no rent subsisting as due, there was no right that could accrue to the plaintiff on account of such defaults. It was further contended in view of Section 24 of the Act, it could not be said that benefit of the cause of action from default could be assigned to the transferee landlord.
12. For proper appreciation of the position under the present Act, the West Bengal Premises Tenancy Act, 1956 which governs the suit tenancy it will be necessary to consider the relevant provisions. Section 24 of the Act provides when there shall be a waiver of default. The section is as follows:
Section 24. 'Where there shall be a waiver of default.-- When there is no proceeding pending in Court for the recovery of possession of the premises, the acceptance of rent in respect of the period of default in payment of rent by the landlord from the tenant shall operate as a waiver of such default.' The series of premises tenancy legislations since 1942 and their amendments have been conferring better and higher rights to the tenants while ensuring due payment of rent as condition precedent for reliefs against eviction. Section 24 is a large stride in that direction in that it afforded for the first time a protection to the tenant contrary to the existing accepted notion of 'once a defaulter always a defaulter'. The inequity and hardship ofthe former law was evident as the landlord could enforce his right arising from default even after acceptance of rent in default. The above section afforded protection to tenants so that under the present Act, acceptance of rent in default operates as waiver of default; even so such acceptance must be by the landlord.
13. The word 'landlord', which has to be interpreted with reference to the context, has been defined in the 1956 Act as follows:
'2. Definitions.--- In this Act, unless there is anything repugnant in the Subject or context
(a) ... ... ...
(d) 'landlord' includes any person who, for the time being, is entitled to receive or but for a special contract, would be entitled to receive, the rent of any premises, whether or not on his own account;'
In the earlier Bent 1950 Act or 1948 Act or even in rent ordinances or orders 'landlord' was defined more or less in the following manner:
'Landlord' (in 1950 Act) means any person who for the time being is receiving the rent of any premises from the tenant thereof and includes any person who is entitled to bring suit for such rent.' 'Landlord' (in 1948 Act) means any person who for the time being is receiving or entitled to receive, the rent of any premises whether on his own account or on account, or on behalf, or for the benefit of any other person ......'
14. 'Landlord' in Calcutta Rent Ordinance, 1946 or in the Bengal House Rent Control Order 1942 has identically the same definition as stated above and the same is also the case in the Bombay Act of 1947 considered by the Supreme Court.
15. The definition under the present Act, in my opinion, is much wider and by its terms in proper context 'landlord would include such person who had been the landlord of the premises at earlier point of time. If such landlord accepts rent in default which is due to him, the legal effect of such acceptance will not merely be the extinction of the liability of the tenant for the arrear of rent in default, it will also operate as an waiver of such default under provisions of Section 24 of the Act. This incident of the tenancy always remain with the landlord of the premises at any point of time in respect of rent due to him. By a transfer of the premises by such landlord to the present landlord as here, there will not be with it an assignment of rent or a transfer of the benefit of default or of the cause of action arising from default, as even after transfer of the premises, the transferor landlord will be entitled tothe rent in default due to him under Section 109 of the Transfer of Property Act and acceptance thereof will also operate as waiver of such default under Section 24 of the 1956 Act. In view of the express provision of the said sections the position, it appears to me, is that on such transfer of the premises there will be no assignment along with such transfer, of the rent in default or of the benefit arising from such default or of the cause of action from the defaults as contended.
16. This interpretation will be in harmony with the provisions of Section 17 wherein 'landlord' would mean in the context the plaintiff landlord and the arrear rent would be such rent which is due to such landlord, as in effect held in Daya Debt's case. It has been held in Raghunath v. Patel & Co. (1961) 65 Cal WN 1093 that Section 17 of the Act does not require the tenant to deposit or pay any amount in respect of time-barred arrears of rent. On the same consideration the defaults contemplated under subsection (1) of Section 13 (1) will not include rent which is barred by limitation even though it is not specifically mentioned in the said Sub-section. Similar will also be the position in respect of rent in default and the benefits arising therefrom not due to the transferee landlord in terms of Section 109 of the Transfer of Property Act and curable of such default by Section 24 of the Act. The decisions of this court cited on behalf of the plaintiffs relate to 1950 Act while the Supreme Court in the case cited was concerned with the Bombay Act of 1947 in which the definition of 'landlord' is as in our earlier statutes and there Is no section similar to Section 24 of the present Act and further the suit under the Bombay Act was filed by the landlord to whom rent in default was due.
17. Mr. Mukherjee for the appellants has next contended that by notice to quit the plaintiffs gave seven days' time to pay off the arrears which was done by them by remitting the amount by money order dated October 4. 1963, but the money order was refused on the 8th following. According to him, the 7 days' time granted by the said notice expired on October 4. 1963 on which date the amount was remitted which is to be taken as the date of tender as provided in the proviso to Sub-section (1) of Section 21. Although the proviso has been Inserted by West Bengal Premises Tenancy (Second Amendment) Act, 1969 (Act 34 of 1969), and Is to have effect to pending suits including appeals, the proviso refers only to deposits contemplated in Sub-section (1) only and not to other cases. This contention of the appellants thus has no basis.
18. Mr. Mukherjee for the appellants also contended that the default ifany was only technical, as before expiry of one month from service of summons, the defendants filed an application for deposit as also the written statement raising the dispute about default. This dispute however was not decided by the trial court as otherwise the defendants would have an opportunity to put such amount as would be ordered, so that there would be no eviction on ground of default. This contention is also without substance as for raising a dispute it is necessary for the tenant to file an application within the time prescribed.
19. In the view I have taken as above, the appeal succeeds and is allowed and the judgment and decree under appeal are set aside and the plaintiffs' suit is dismissed, each party bearing their own costs throughout.
20. As to the cross-objection, in view of the dismissal of the suit the cross-objection loses its force. Mr. Mukherjee for the cross-objectors respondents has contended that the courts below misdirected themselves in thinking that the plaintiff No. 3 had no experience of business proposed to be started in the suit premises and for that reason there was no reasonable requirement of the suit premises. The plaintiffs' case was that the plaintiff No. 3 had obtained the requisite training for conducting the business in cotton goods. This was not supported by the evidence as the courts below have found and it was further found that the plaintiff No. 3 was not yet capable to run the business. Even to conduct business by servants requires experience and training which were also found lacking in the said plaintiff. The courts below in the said circumstances found that the plaintiffs did not reasonably require the suit premises for their own use and occupation. Sitting in second appeal I do not think that such finding which is based on appreciation of evidence, can be interfered with. In the circumstances apart from any other consideration, the plaintiffs' suit for eviction on ground of reasonable requirement cannot succeed. The cross-objection accordingly is dismissed without any order as to costs.
21. Mr. Mukherjee, the learned Advocate for the respondents has prayed for leave under Clause 15 of the Letters Patent. The prayer is granted.