Skip to content


Baburam Bag Vs. Madhab Chandra Pollay - Court Judgment

LegalCrystal Citation
SubjectContract;Tenancy
CourtKolkata
Decided On
Judge
Reported inAIR1914Cal333,(1913)ILR40Cal565
AppellantBaburam Bag
RespondentMadhab Chandra Pollay
Cases ReferredAllen v. Anthony
Excerpt:
specific performance - agreement to renew a lease when specifically enforceable against a subsequent lessee for value--duty of subsequent lessee to enquire of terms of previous lease--specific relief act (i of 1877), section 27. - .....and if he chooses to make no inquiry of the tenant, he cannot claim to be a transferee without notice. the plaintiffs, therefore, are unable to predicate of themselves that they are persons who claim without notice of the contract of the 1st of may, 1901. that contract, therefore, is capable of specific performance against the plaintiffs, and it furnishes a complete answer to their claim for possession.12. the only question then is, whether it can fairly be said that the plaintiffs have been taken by surprise. it is quite true that the contract of 1st may, 1901, is not specifically mentioned in the written statement; but it is equally true that the tenant-defendant did plead the relationship of landlord and tenant, and this was referable to that contract. further than that, we have.....
Judgment:

Jenkins, C.J.

1. Does not the principle of Walsh v. Lonsdale (1) (1882) 21Ch. D. 9. apply to the case?

2. That case is distinguishable. I rely on Manchester Brewery Co. v. Coombs (2) [1901] 2 Ch. 608, 617. and Section 27, Specific Relief Act.

3. There is no finding of knowledge of the plaintiff of the covenant in favour of the defendant. At the time of the lease with the plaintiff, possession of the defendant was under the old lease.

Jenkins C.J.

1. Notice will be implied of all his rights. The plaintiff ought to have enquired of the man in possession.

2. Dr. Ghose. See Allen v. Anthony (1) (1816) 1 Mer. 282; 15 R. R. 113. and the observations of Jessel M.R. in Patman v. Harland (2) (1881) 17 Ch. D. 353. Section 27 of the Specific Relief Act throws the onus on you.

3. I want an opportunity to show that I had no knowledge. The plaintiff was taken by surprise.

4. Dr. Rashbehary Ghose (with him Babu Probodh Chandra Sat and Babu Haricharan Ganguli), for the respondent. Onus is on the lessee or purchaser to show he had no notice. Even if the onus were on my client, he has discharged it.

5. There cannot be a remand, because the Appellate Court was not invited to take further evidence. The question is one of law: Eshan Chunder Sein v. Shaikh Dhonaye (3) (1869) 11 W. R. 61.

6. The purchaser is bound by all the equities and interests under collateral agreement: Dart on Vendors and Purchasers, p. 884. Taylor v. Stibbert (4) (1794) 2 Ves. Jn. 437; 2 R. R. 278. Daniels v. Davison (5) (1811) 16 Ves. 249; 17 Ves. 433; 10 R. R. 171. Barnhart v. Greenshields (6) (1853) 9 Moo. P. C. 18; 14 E. R. 204. Mancharji Sorabji Ghulla v. Kongseoo (7) (1869) 6 Bom. H. C. 59. Allen v. Anthony (1).

7. Finally, there is the plaintiff's own admission that he did not make any inquiry of defendant No. 1 of the terms of his lease. He should have.

Jenkins C.J.

8. This Special Appeal arises out of a suit brought to recover possession of certain julkar rights. This julkar had been leased on the 2nd of March, 1901, to the first defendant for a period of seven years. On the 1st of May, 1901, the lessors entered into an agreement with the lessees for renewal, under certain conditions, on the determination of this term. On the 11th of July, 1906, the lessors purported to settle the julkar with the plaintiffs for a term of seven years from the 1st of May, 1908, and we are told that the plaintiffs in return of this paid a sum of Rs. 600. The plaintiffs now seek to recover possession of these julkar rights on the ground that the lease of the 2nd of March, 1901, in favour of defendant No. 1 has come to an end. In the Court of the Subordinate Judge a decree for possession was passed, but on appeal it was reversed and as against the tenant-defendant the suit was dismissed with costs. The plaintiffs appeal from this decree.

9. The position then is his,---the plaintiffs, never having obtained possession, seek to eject the tenant-defendant on the ground that his lease has determined.

10. The answer made by the tenant-defendant is that though the lease of the 2nd of March, 1901, may have come to an end, still he, the defendant, is in possession of the land, and he holds it under the agreement of the 1st of May, 1901.

11. The first question, therefore, we have to consider is whether the agreement of 1901 is an agreement which can be specifically enforced. It is not suggested before us that it is incapable of enforcement against the lessors; all that can be argued is that the plaintiffs are persons against whom it cannot be enforced. Section 27 of the Specific Relief Act provides that 'except as otherwise provided by this chapter, specific performance of a contract may be enforced against (a) either party thereto, (b) any other persons claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract.' The plaintiffs, come within the description of 'any other person claiming under a party by a title arising subsequently to the contract of the 1st of May, 1901,' so that prima facie the contract can be specifically enforced against the plaintiffs. Do the plaintiffs bring themselves within the exception, that is to. say, have they shown that they are 'transferees for value who have paid their money in good faith and without notice of' the original contract'? It is shown that they are transferees for value who have paid money. But can it be said that they did it without notice of the original contract? In determining that, we must have regard to the fact that the tenant-defendant was, and has throughout remained, in possession and occupation' But the occupation of property by a tenant ordinarily affects one who would take a transfer of that property with notice of that tenant's rights, and if he chooses to make no inquiry of the tenant, he cannot claim to be a transferee without notice. The plaintiffs, therefore, are unable to predicate of themselves that they are persons who claim without notice of the contract of the 1st of May, 1901. That contract, therefore, is capable of specific performance against the plaintiffs, and it furnishes a complete answer to their claim for possession.

12. The only question then is, whether it can fairly be said that the plaintiffs have been taken by surprise. It is quite true that the contract of 1st May, 1901, is not specifically mentioned in the written statement; but it is equally true that the tenant-defendant did plead the relationship of landlord and tenant, and this was referable to that contract. Further than that, we have the fact that this particular agreement was tiled prior to the trial, and I cannot read the judgment of the Munsif without feeling that the issue, though in very general terms, was settled in reference to the, preceding statement in his judgment where there is an obvious allusion to this contract on which the tenant-defendant now relies. Therefore, we cannot give effect to the suggestion that the plaintiffs were taken by surprise. I accordingly think that the decree of the District Judge should be confirmed and this appeal dismissed with costs, one set payable to the tenant-defendant.

Mullick J.

13. concurred.


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