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Dooni Lal Seal and anr. Vs. Smt. Giniya Devi Rateria and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberSuit No. 2071 of 1967
Judge
Reported inAIR1970Cal452
ActsCode of Civil Procedure (CPC) , 1908 - Order 7, Rules 1 and 7 - Order 8, Rule 6; ;Transfer of Property Act, 1882 - Sections 111 and 114A
AppellantDooni Lal Seal and anr.
RespondentSmt. Giniya Devi Rateria and ors.
Cases ReferredRaja Pramatha Nath Roy v. Raja Ramani Kanta Roy
Excerpt:
- ramendra mohan datta, j. 1. this suit is, inter alia, for the recovery of possession of the northwestern portion of premises no. 12/2 kyd street and the entirety of premises no. 13, kyd street, calcutta (hereinafter called the said premises). by a registered deed of lease dated october 18, 1966 the said premises were demised by the lessors on a lease for 99 years in favour of the defendant no. 1. besides the re-entry clause in case of non-payment of three months' rent and/or breach of any of the covenants contained therein the said lease, inter alia, provided the following clause :-- 'clause 6 (a). that the lessee shall at any time within period of six months from the said lease pay to the lessors (plaintiffs and the defendants nos. 2 to 5 and their mother) either at a time or by two.....
Judgment:

Ramendra Mohan Datta, J.

1. This suit is, inter alia, for the recovery of possession of the northwestern portion of premises No. 12/2 Kyd Street and the entirety of premises No. 13, Kyd Street, Calcutta (hereinafter called the said premises). By a registered Deed of Lease dated October 18, 1966 the said premises were demised by the lessors on a lease for 99 years in favour of the defendant No. 1. Besides the re-entry clause in case of non-payment of three months' rent and/or breach of any of the covenants contained therein the said lease, inter alia, provided the following clause :--

'Clause 6 (a). That the lessee shall at any time within period of six months from the said lease pay to the lessors (plaintiffs and the defendants Nos. 2 to 5 and their mother) either at a time or by two equal monthly instalments the aggregate sum of Rs. 21,000 as and by way of advance rent. Provided, however, that the defendant would be at liberty to adjust the said advance rent of Rs. 21000 so to be paid by deducting at the rate of Rs. 300 per month out of the total monthly rent payable by her. Provided further that the defendant would start such deducting at the rate of Rs. 300 per month out of the total monthly rent after the period of 13 years 8 months from the said date of the lease and would continue to do so until the sum of Rs. 21000 wouldhave been fully adjusted. Provided also that if the lease was determined at any time before the said sum of Rs, 21000 would be adjusted as aforesaid due to any breaches of any covenant under the lease committed by the defendant No. 1 the lessors (the plaintiffs and the defendants Nos. 2 to 5 and their mother) would not be required and/or called upon to refund and/or adjust the sum of Rs. 21000 or any portion thereof which might then remain outstanding.'

2. The said lessee paid rent only for the broken period of October 1966 calculated at the rate of Rs. 1500 per month but failed and neglected to pay any further rent. As regards the said payment of rent the lessees granted different rent receipts in respect of their shares of rent in terms of the said lease.

3. On June 7, 1967 a notice was served upon the defendant through the lawyer Sri P. K. Gliose, inter alia, determining the lease, specifying the breaches of the covenant and calling upon the lessee to quit and vacate and deliver up peaceful possession on the expiry of the mouth of July 1967. The defendant No. 1 having failed to comply with the said notice, two of the lessors filed this suit impleading the other lessees as party defendants herein and claimed arrears of rent npto the month oi July 1967 and mesne profits from August 1, 1967 until possession would be delivered. The two plaintiffs who have filed this suit are the two brothers and the defendants Nos. 2, 3, 4 and 5 are the sons of another pre-de-ceased brother. The two plaintiffs and the sons and the widow of the said pre-deceas-ed brother were the lessors under the said lease. The widow Annabati Dassi died sometime prior to the notice dated June 7th 1967. It is stated that the said notice was caused to bo served under instructions from the plaintiffs and the defendants Nos. 2, 3, 4 and 5 being the sons of the said pre-decea-sed brother.

4. The defendants Nos. 2, 3, 4 and 5 filed a joint written statement supporting the plaintiffs and claiming similar reliefs as claimed by the plaintiffs.

5. The defendant No. 1 in her written Statement took various points in defence. It is alleged that the saia lease was executed on the basis of various representations made on behalf of the plaintiff's and pursuant thereto the defendant No. 1 paid a sum of Rs. 31,000 in cash without any receipt. It is further alleged that the plaintiffs themselves committed breach of the condition of the said lease and as such they were not entitled to claim a sum of Rs. 21,000 under the lease. The authority of the lawyer in sending the notice of forfeiture dated June 7, 1967 on behalf of the defendants Nos. 2, 3, 4 and 5 has also been denied. The further allegation is that after the date of the said notice, Pramatha the defendant No. 2, herein, accepted two several sums of Rs. 1000 and Rs, 1200 from the defendant No. 1against two receipts and the same were received on account of rent which became due in his share. Accordingly, the notice of forfeiture had been waived. The defendant No. 1 also claimed set off for the sum of Rs. 31,000 but it appears that no requisite stamps were put in to entitle her to agitate the said point.

6. On behalf of the defendant No. 1 two interesting points were raised. Tt was urged that the determination of the lease was a matter of pleading and in the absence of such pleading the plaint would not disclose any cause of action. The other point that was canvassed was that the notice dated June 7, 1967 itself was inherently bad inasmuch as even though the said notice determined the lease the lessors claimed rent npto the end of July 1967 and having done so they waived the forfeiture. In other words, the notice itself could not be held to be a valid and sufficient notice.

7. At the trial the following issues were settled :--

1. Did the defendant No. 1 commit any breach of covenant of the lease as alleged in paragraph 3 of the plaint?

2. (a) Are the averments made in paragraphs 4 and 7 of the plaint relating to notice sufficient?

(b) If not, does the plaint disclose any cause of action relating to recovery of possession?

(c) Was there any waiver of the forfeiture of the alleged acceptance of money towards rent after notice dated June 7, 1967 as alleged in paragraph 5 of the written statement of the defendant No. 1?

(d) Was there any waiver of forfeiture by reason of the lessor's claiming rent for the month of July 1967 as stated in paragraph 8 of the plaint?

(e) Was the notice in suit valid and sufficient?

3. Did Shri P. K. Chose, Advocate have any authority from the defendants Nos. 2, 3, 4 and 5 to send the notice dated June 7, 1967? , If not, to what effect?

4. Is the suit not maintainable for reasons as alleged in paragraph 1 of the written statement of the defendant No. 1?

5. To what relief or reliefs, are the plaintiffs and the defendants Nos. 2 to 5 entitled?

8. Issue No. 1: There was hardly any contest in respect of this issue. Surajbhan Rateria the husband of the defendant No. 1 gave evidence on behalf of Giniya Devi. It appeared that he was acting all throughout on behalf of, his wife by holding a power of attorney and he was conversant with the facts of this case. He admitted in his evidence that after the lease was executed on October 18, 1966 rent was paid only for the said broken period of October 1966. Thereafter no further rent under the said lease was paid except as hereinafter stated. He also admitted that the sum of Rs. 21,000 as provided in the lease was not paid. It was argued that the said sum of Rs. 21,000was not payable because the lessors themselves committed breach of the conditions of the said lease.

9. There was no proof of the allegations regarding the breach of the conditions of the lease on the part of the plaintiffs or on the part of the lessors or any of them. In the absence of a valid claim for set off for the said sum of Rs. 31,000 the defendant No. 1 could not be allowed to agitate the said claim for Rs. 31,000 in this suit,

10. In my opinion, the plaintiffs and the defendants Nos. 2, 3, 4 and 5 have clearly established that there was a breach of the covenant of the lease by the defendant No. 1 by non-payment of rent on and from the month of November 1966 and onwards and also by non-payment of the said sum of Rs. 21,000 which became payable under the said lease. On the basis of my aforesaid findings I answer the issue No. 1 in the affirmative.

11. Issue No. 8: On behalf of the defendant No. 1 it has been contended that from the averments made in the plaint it would appear that the defendants Nos. 2, 3, 4 and 5 refused to join as co-plaintiffs and as such they were made party-defendants in this suit. From the above averments, it has been argued before me that instructions could nut have been given on behalf of all the lessors to send the notice of forfeiture and notice by one of the lessors could not, in any event, be a valid notice of forfeiture. The question therefore to be decided by me under this issue is whether such instructions and/or authority was given to the lawyer to send the notice by all the lessors including the defendants Nos. 2, 3, 4 and 5.

12-14. (His Lordship perused the evidence on this issue and proceeded).

15. I hold from the evidence on record that the said Shri P. K. Ghose had authority from the defendants Nos. 2 to 5 as well to send the notice dated June 7, 1967. The issue is accordingly answered in the affirmative.

16. Issues Nos. 2 (a) and (b): On behalf of the defendant No. 1 it has been argued that the plaint does not disclose any cause of action because of want of pleading as to the determination of the lease. On behalf of the plaintiffs and the other defendants Nos. 2 to 5 it was contended that the determination of the lease has been sufficiently pleaded though the word 'determination' has not been used in the plaint. The substance is to be found from the language used in the various paragraphs in the plaint and reliance has been placed on paragraphs 4, 7, 8 and 9 thereof. Secondly, it has been urged that this being a case under Section 114A of the Transfer of Property Act, 1882 both the form of notice as also the averment in the plaint should be in the manner as provided therein. In other words, in the case of a notice in the facts and circumstances of the case of this nature, the determination has to take effect on the ex-piry of the reasonable time as stated in the notice and as such in the case of the pleading in the plaint, on a true construction thereof, it will appear that determination has been substantially pleaded. It has been pleaded that the defendant No. 1 failed to comply with the notice and as such she was in wrongful occupation thereof from the expiry or the period mentioned in the notice; and that should be construed as valid determination of the lease. My attention was drawn to the written statement filed by the defendant No. 1 and from the averment made therein it would appear that the defendant No. 1 well understood that the lease had been validly determined and that the substance of the determination . had been pleaded in the plaint.

17. It has been further contended that the notice under Section 114A of the Transfer of Property Act, in case the breach is capable of remedy, would be different from the notice under Section 111 Clause (g) of the said Act and that the instant case is a case of a notice which is governed under Section 114A of the Transfer of Property Act read with Section 111 Clause (g) thereof.

18. In my opinion, even though the words 'determination of the lease' had not been pleaded expressly yet, there is sufficient pleading of determination of the lease by the lessors against the lessee by necessary implication. In Halsbnry's Laws of England Volume 23 Simonds Edition, Article 1155 it is provided as follows:

Determination by landlord. Anything which amounts to a demand of possession, although not expressed in precise and for-, mal language, is sufficient to indicate the determination of the landlord's will. Thus, the landlord may expressly demand possession or state that the tenant is in against his will, or send for the keys; and if the notice states terms, and intimates that if they are not accepted the landlord will take steps to recover the premises, and the terms are rejected, that is a sufficient notice to determine the tenancy.'

19. It is no doubt true that the factum of determination is a cause of action in a suit for ejectment against the tenant but the purpose of pleading determination can be fulfilled if by the language used in the pleading, its sense can be otherwise conveyed or ascertained. The language must be such that it must express the paramount intention to put an end to the lease.

20. On behalf of the defendant No. 1 it was contended following the case of Niran-jan Pal v. Chaitanyalal Ghose, : AIR1964Pat401 that in the case of contractual tenancy the lease must be determined before the landlord could maintain an action for the ejectment of the tenant and the plaintiff must not only plead the fact of such determination of the lease but must also prove the same because the fact of determination is one of the facts which constitute the cause of action in the suit forejectment. That was the case in which the effect of Section 11 of the Bihar Buildings (Lease, Rent and Eviction) Control Act (3 of 1947) was under consideration by the Full Bench of the Patna High Court. There is no provision in Section 11 of the said Control Act for the determination of a lease. It was held that there was no conflict between that section and Section 111 of the Transfer of Property Act 1882 and as such Clause (h) of Section 111 was applied. It was held that Section 11 of the said Control Act would strike at the stage of recovery of possession of the premises from the tenant and not at the stage of the re-acquisition by the landlord of the right to possession on determination of the lease which would be governed by Section 111 of the Transfer of Property Act. There is no conflict with the proposition laid down in the said Patna case in so far as the case before me is concerned. As stated above, the language used in the plaint before me is sufficient to imply the determination of the lease.

21. In my opinion, by the pleading as indicated above the provision of Order VII Rule 1 of the Code of Civil Procedure 1908 has been sufficiently complied with.

22. In paragraph 5 of the written statement the defendant No. 1 admitted that she understood the said notice to be a notice to determine the said lease. In paragraph 12 of the written statement also the defendant No. 1 has pleaded as follows:

'The plaintiffs are not, in any event entitled to claim relief on the ground of the purported forfeiture of lease against this defendant'.

23. There is no dispute in the case before me that by the said notice dated June 7, 1967 the fact of determination was sufficiently stated. The question before me is whether there was sufficient pleading in the plaint about the said fact of determination,. In my opinion, the fact that there was sufficient pleading of determination in the plaint was also understood by the defendant No. 1 and as such in her written statement she made the aforesaid pleadings.

24. Mr. Salil Kumar Roy Chowdhury also drew my attention to the Encylopaedia of Court Forms and Precedents in Civil proceedings by Atkin Volume 10, Form No. 108 where the pleading in respect of forfeiture for breach of covenant against assignment was considered sufficient by using the language as follows:

'7. On the ..... day of .....19the plaintiff served upon the defendant a notice in writing specifying the aforesaid breach of covenant and requiring him to remedy the same and to make compensation in money therefor.

8. The defendant has failed to remedy the said breach or to make compensation within a reasonable time or at all.

9. By reason of the matters aforesaid the plaintiff has suffered damage.'

25. In paragraph 7 of the plaint herein the plaintiffs referred to the said noticedated June 7, 1967 whereby the plaintiffs called upon the defendant No. 1 to yield up possession of the said premises. It is also pleaded therein that the defendant No. 1 had not complied with the said notice and had been continuing in the wrongful occupation of the said premises. The plaintiffs have also claimed mesne profits from August 1, 1967 and have pleaded to that effect in paragraph 9 of the plaint. As stated above, the defendant No. 1 sufficiently understood, as would appear from her written statement, that the lease in her favour was determined by the said notice. The said notice which is the basis of the plaintiffs' claim in the suit, expressly mentions the words 'determine the said deed of lease'. The lawyer of the defendant No. 1 by his letter dated July 21, 1967 denied the right of the lessors to determine the lease.

26. Accordingly, my finding is and I hold that the pleading is sufficient relating to the notice under Section 114A of the Transfer of Property Act of 1882 and I answer issue No. 2(a) in the affirmative, It necessarily follows, therefore, that the plaint does disclose the cause of action relating to recovery of possession on the ground of forfeiture and the issue No. 2(b) is, accordingly, answered also in the affirmative.

27-28. Issues Nos. 2(c), 2(d) and 2(e): As regards issue No. 2(c) the defendant No. 1 has stated in her written statement that the lessors have waived the forfeiture by accepting money towards rent after giving the said notice. The notice was dated June 7, 1967. The allegation was that Pramatha Lal Seal accepted a sum of Rs. 1000 on May 6, 1967 and a further sum of Rs. 1200 on September 6, 1967 from the defendant No. 1 against clear receipts granted by him. (His Lordship considered the evidence and proceeded.)

I Have no hesitation to disbelieve the evidence of Rateria on this point and to believe Pramatha when he said that these amounts were received by him in part payment of the sum of Rs. 3000 which Giniya Devi wanted to pay to Pramatha for procuring the lease. In view of my finding the question of waiver cannot arise.

29. To determine the validity and sufficiency of the notice dated June 7, 1967 it is necessary to decide whether in the facts and circumstances of this case a notice under Section 111 Clause (g) of the Transfer of Properly Act was necessary to be given or whether in this case a notice as provided in Section 114A of the Transfer of Property Act was required to be given by the lessors to the lessee. The relevant clause being Clause 6(a) of the lease has been set out herein above in full. The question is whether the payment of Rs. 21,000 in the said clause was payment of rent or was it a clause for the breach whereof the lessors would be entitled to re-enter the said premises under the lease. If the said Clause 6(a) of the laid Deed of Lease is analysed it would appear that the parties thereto intended that:

(a) within a period of six months the said sum would be payable;

(b) if the lease would subsist then the said sum of Rs. 21,000 would be adjusted against future rent;

(c) the adjustment would be effected not to the full extent of the rent but to the extent of Rs. 300 per month and that would also commence after the period of 13 years 8 months from October 18, 1966;

(d) in case there would be a breach of covenant under the lease on the part of the lessee and if the adjustment would not take effect by that time then the balance remaining due out of the sum of Rs. 21,000 would have to be refunded or adjusted;

(e) in any event, the lessee would not be liable to refund any part of the sum of Rupees 21,000.

30. It follows, therefore, the sum of Rs. 21,000 became due and payable within a period of six months and the said sum not having been paid within that time the lessee committed breach which entitled the lessors to re-enter. The lessee having committed such breach could not be entitled to have any interest in the said sum by having the same adjusted against future rent. The said sum became due and payable to the lessors absolutely and the lessors could utilise the same for their own purpose. Even if the said sum had been paid within the said period of six months, the lessors would have utilised the said sum for 13 years without being obliged to return the same or to have the same adjusted against rent. The lessee not having any interest over the said sum for 13 years the said sum could not be called rent or advance rent.

31. In the premises, the covenant relating to the payment of Rs. 21,000 could not be called the covenant relating to forfeiture by reason of non-payment of rent in which case Section 114A of the Transfer of Property Act 1882 would not have applied. The covenant for the payment or Rs. 21,000 in the lease, in my opinion was a covenant which was capable of remedy in case of breach and accordingly a notice under Section 114A was necessary to be given to enable the lessors to file a suit against the lessee.

32. That being the position, it has now to be considered whether the notice dated June 7, 1967 was a valid and proper notice as contemplated under Section 114A of the Transfer of Property Act.

33. To consider this question it is necessary here to set out the relevant portion ofthe said notice.

'I now understand from my said clientsthat although you paid to them the rent ofthe demised premises for the period of 18thOctober 1966 to 31st October 1966 you havein spite of repeated demands wrongfully failed and neglected to pay the rent or the samefor all subsequent period viz., November1966 to May 1967.

'I have now received instructions from my said clients to give you notice which I hereby do that in terms of the provisions contained in the said Deed of Lease and also call upon you to quit, vacate and deliver up peaceful possession of the said demised premises on the expiry of the month of July 1967 being a calendar month's notice ending with the month of your tenancy failing which my said clients shall take necessary legal action against you and hold you liable for all costs and consequences thereof.'

34. On behalf of the lesssors it was contended that this was a valid notice as contemplated under Section 114A of the Transfer of Property Act. The reasonable time to remedy the breach had been granted up-to the end of July 1967. It was contended that the language used in the notice might not be very happy but the sum and substance thereof was to the effect that the lessee was called upon to remedy the breach by the said notice and in default thereof, to deliver up possession to the lessors. The question would arise as to whether the lessors should have claimed rent after the determination of the lease in respect of the period which was granted by way of reasonable time to remedy the breach. It would appear that if the breach would bave been remedied then the lessee could have been entitled to rely against forfeiture under the statute. It was argued that if that possibility was there then there could hardly be any reason in not claiming rent for the said unexpired period which was granted to remedy the breach.

35. It was represented from the bar that the point was of first impression and there was no decided case laws on tin's point. Both in the notice as also in the plaint filed by the plaintiffs rent has been claimed for the said unexpired period of the notice. Had this been a case under Section 111 Clause (g) and Section 112 of the Transfer of Property Act then it could be urged that the forfeiture of the lease had been waived because that might be said to have amounted to an affirmance of the continuance of the lease-The statutory provision of waiver of forfeiture under Section 112 is restricted to the case of forfeiture as provided under Section 111 Clause (g) of the Transfer of Property Act, What has been provided in Section 114A is that in case of forfeiture being incurred the lessors would be bound to serve on the lessee a notice as provided therein and the lessee would be given an opportunity to remedy the said breach and relief would be granted to the lessee by the statute in the sense that no suit would be filed for such forfeiture until the expiry of such notice and the non-compliance thereof.

36. In my opinion, until the expiry of the reasonable period as provided in the notice, the lessee would remain liable to pay rent and in receiving such rent there would be no question of the forfeiture being waived and that is the reason why there is noexpress provision for waiver of forfeiture under Section 114A as is provided by Section 112 of the Transfer of Property Act in respect of forfeiture under Section 111 Clause (g) of the said Act.

37. In my opinion. Section 114A of the Transfer of Property Act should be so reasonably construed and in such a. manner that an effective meaning could be attached to it. The question that would have to be answered was whether the lessors after determining the lease could ask for rent during the period of the notice. I see no reason wby the lessors could not ask the lessee to pay the rent in the meantime. There could be no point in asking the lessee to remedy the breach and at the same time asking him to pay the occupation charges as compensation or damages or as mesne profits, more so, when by the statute itself the lessors had no right to file any suit without giving the lessee reasonable chance to remedy the breach. As already stated herein-above, there is no provision for waiver of forfeiture as contemplated under Section 114A of the Transfer of Property Act. The provision of Section 112 of the Transfer of Property Act is restricted to forfeiture as was provided under Section 111 Clause (g) of the Transfer of Property Act.

38. In the case of Section 111 Clause (g) of the Transfer of Property Act 1882, a written notice has to be given to the lessee signifying the lessor's intention to determine the lease. Until such notice would be given forfeiture under that provision would not be incurred for the purpose of determining the lease of an immovable property.

39. But where the breach complained ol is capable of remedy the notice must be in accordance with Section 114A read with Section 111 Clause (g) of the Transfer of Property Act. The notice must not only specify the breach but also give reasonable time to the lessee who is called upon to remedy the breach within such reasonable time. It is then and then only the cause of action to file a suit for eviction by the lessor against the lessee would arise. In such a case if the said provision is not complied with then the suit by the lessor would be barred because the notice would be bad in law.

40. The next question that arises for consideration is when does the forfeiture take effect and when does the lease stand determined? To consider this question it should be remembered- that by the Amendment Act XX of 1929 Section 111 Clause (g) has been amended whereby written notice signifying the intention of the lessor to determine the lease would constitute determination of a lease by forfeiture. Similarly, by the said Amendment Act XX of 1929 a new provision has been introduced by enacting Section 114A of the Transfer of Property Act, whereby the relief against forfeiture was extended in certain cases other than for non-payment of rent in respect whereofSection 114 of the Transfer of Property Act already existed.

41. In my opinion, the marginal note against Section 114A which reads: 'Relief against forfeiture in certain other cases,' has created a lot of confusion in the matter of interpretation of the new Section 114A. Whereas with regard to Section 114 the marginal note which reads: 'Relief against forfeiture for non-payment of rent' clearly fits in with the language of the said provision, the marginal note in Section 114A far from being descriptive of the section in a nutshell would go to create a lot of confusion vis-a-vis the concept of forfeiture as understood by Section 111 Clause (g) as amended.

42. The relief as provided in Section 114 is the statutory relief which is granted after the determination of the lease by forfeiture for non-payment of rent by giving discretion to the court to consider whether such relief would be granted or not at the hearing of the suit and if the Court would exercise its discretion in favour of granting such relief then the lease would not be revived thereby but the lessee would continue in the manner as provided by the expression 'used .therein viz., the lessee shall hold the property leased as if the forfeiture hud not occurred'. In other words, there would be a notional lease which would govern the rights of the parties on the same terms and conditions as before.

43. Whereas the statutory relief is granted by Section 114 to the lessee if the Court would so think fit and a notional lease is created thereby, under Section 114A what is provided is not relief in that sense i.e. to relieve against forfeiture which has already occurred. The form of the notice is provided by the said section. Until the expiry of that notice the forfeiture is not complete. The forfeiture remains in an inchoate state. The expression 'where a lease of immovable property has determined by forfeiture' in Section 114A does not suggest that a notice has already been given under Section 111 Clause (g) but suggests that in a case of that nature the determination by forfeiture has to be notified by the very same notice wherein the breach capable of remedy will have to be specified and wherein the reasonable time to remedy the breach will have to be indicated. In other words, one comprehensive notice is contemplated for determining the lease by forfeiture in certain cases where it is applicable. Pravat Cbandra v. Bengal Central Bank Ltd. : AIR1938Cal589 . The scope of Section 114A contemplates that to be a valid notice it must signify the lessor's intention to determine the lease; it must specify the breach which is capable of remedy; and reasonable time must be given to the lessee to remedy the breach by the said notice. Otherwise the notice would be bad. The cause of action to file a suit would not arise and the lease would continue as before. The lessor would be without a remedy so far as the for-feiture is concerned. In the case of a valid notice the forfeiture, if any, remains in an inchoate state until the expiry of the period provided by the notice. Under such circumstances, the lease would continue as before until the expiry of the notice and the lessor would be entitled to claim rent till that period. In default of compliance with the said notice forfeiture would become operative as per intention signified in the very same notice and the lease would stand determined on and from the date of the ex-piry of the period provided in the notice, the requirement as provided in the notice is complied with the intimation to the lessee of the forfeiture by the lessor becomes ineffective in law as if the same stands withdrawn. The right to sue the lessee also does not accrue to the lessor under such circumstances.

44. Accordingly, there could be no doubt that until the expiry of the notice under Section 114A, the lessor would claim not mesue profits but rent for the said period. A confusion has been created also to a great extent by equating the marginal writing of Section 114A with that of Section 114 of the Act. In the case of Section 114 the notice under Section 111(g) determines the lease as soon as it is served on the lessee. The contractual relationship of the lessor and the lessee comes to an end. In such a case the Court may grant relief after the filing of the suit under the said provision in appropriate cases. But in the case of Section 114A it is not relief in that sense that is granted but the forfeiture itself does not become operative until the expiry of the reasonable period mentioned in the notice. The relief is granted by allowing the lessee some time to remedy the breach by keeping the forfeiture in abeyance.

45. In my opinion, the expression 'where a lease of immovable property has determined by forfeiture' in Section 114A conveys the meaning that so far as the lessor is concerned he is doing all that he is required to do under Section 111 Clause (g) but whether the lease will stand determined by forfeiture or not will depend upon whether the lessee will comply with the notice or not.

46. The distinction between the two provisions would seem to be this. In the case of Section 111 Clause (g) the intention of the lessor is the predominant factor--as soon as that intention is communicated by writing and the same reaches the lessee the forfeiture takes effect and is complete. Once forfeiture takes effect the parties cannot by their unilateral action bring themselves back into their original position. There would be nothing left for the lessor to call upon the lessee to remedy the breach. There would also be nothing left to the lessee to continue as such. The contractual relationship between the lessor and the lessee under the lease determines except forthe limited statutory relief which is granted by Court under Section 114 in a proper case.

47. In the case of Section 114A it would no doubt be provided in the notice an expression of the like that 'the lessor hereby determines the lease' but the meaning that has to be attached to the said expression and the effect thereof is that the forfeiture would take effect not from the date of the notice but upon the failure of the lessee to remedy the breach within the reasonable time granted by the notice. If the lessee would allow the reasonable time to expire the forfeiture would take effect and would be complete. The relief that is provided under Section 114A is the reasonable time and opportunity that is provided to the les-see to enable him or her to remedy the breach. Until the expiry of that period the lessor is debarred from filing the suit to seek his redress.

48. In my opinion, this is the only meaning that can be attached to Section 114A of the Transfer of Property Act, 1882 and to the relief provided therein.

49. In the light of the above, if the notice in suit is examined it would be found that it has complied with the formalities as prescribed by Section 114A of the Transfer of Property Act, 1882. On the 7th June 1967 the lessors had in effect stated that if the lessee would not remedy the breaches complained of in the notice on or before the expiry of the tenancy for the month of July 1967 the lessors would take legal action. The lessee was called upon to pay the said sum of Rs. 21,000 together with all rents up to date. If the lessee had paid the sum or Rs. 21,000 the lessors could not have any right or cause of action to institute this suit in so far as the said breach was concerned as the lessors would have been hit by Section 114A of the Transfer of Property Act, 1882. In my opinion, the lessors rightly demanded the sum calling it as rent up to the end of July 1967. It was a reasonable time given to the lessee to remedy the breach. The expression 'they (lessors) hereby determine the said Deed of Lease in the said notice in suit, if rightly construed, would mean that the determination of the lease would take effect upon failure to remedy the breach on the expiry of the month of July 1967. In my opinion, the notice in suit has substantially complied with the requirements provided in Section 114A of the Transfer of Property Act, 1882.

50. In any event, construing the notice as a whole I cannot come to the conclusion that the lessors ever intended to waive the forfeiture by accepting rent for the month of July 1967. The intention was made clear by the said notice that the lessors intended to give the lessee reasonable time to remedy the breach and to evict her by filing a suit in case of non-compliance with the said notice. No such intention has been expressed by the said notice on the part of the lessors so as to signify the affirmance of thecontinuation of the lease when the language of the notice clearly suggests that the lessee was to quit, vacate and deliver up possession on the expiry of the month of July 1967. On that basis mesne profits was also claimed from August 1, 1967.

51. As regards issue No. 2(c) and issue No. 2(d) I have already discussed them in detail hereinabove and my findings are and I hold that there was no waiver of the forfeiture in respect of either of the cases of acceptance of money to the extent of the sum of Rs. 2200 or by claiming rent for the month of July 1967 and I answer both the said two issues Nos. 2(c) and 2(d) in the negative. It follows from my above findings that issue No. 2(e) also fails and I hold that the said notice dated June 7, 1967 was valid and sufficient.

52. Issues Nos. 4 and 5: In paragraph 11 of the written statement of the defendant No. 1 it was stated that the suit as framed was not maintainable inasmuch as all the lessors were not claiming the right of forfeiture or for rent or for mesne profits in the present suit. The said issue No. 4 was restricted only to the extent of the aforesaid pleading. In course of argument Mr. N. C. Roy Chowdhury wanted to contend that the defendants Nos. 2 to 5 had been described in the lease as executors to the estate of Priya Lal Seal deceased but in the plaint they were described in their individual capacity and not as executors. Accordingly, the suit could not be maintained as against the said defendants or on their behalf. While giving evidence before me Rateria admitted that the defendants Nos. 2, 3, 4 and 5 became the owners of 1/3rd share of their father upon the death of Annabati Seal, the mother of the defendants. In view of the aforesaid, in my opinion, there is no substance in the point taken at the time of the said argument and the same is rejected.

53. The real point that was argued-under this issue No. 4 was that the suit being a suit for recovery of possession all the lessors must join as co-plaintiffs in order to evict a tenant. In this case only two of the lessors have joined as plaintiffs and the remaining others have been made the defendants. As stated above the said defendants could not be joined as co-plaintiffs due to reasons as stated by and on behalf of the said defendants from the witness box.

54. I am satisfied from the evidence on record that the said defendants Nos. 2, 3, 4 and 5 did not intend to oppose the filing of the suit but on the contrary intended to support the plaintiffs in the matter of recovering possession of the premises from the defendant No. 1. The said defendants were also interested in obtaining recovery of possession and all the time had been siding with the plaintiffs.

55. In the case of Baraboni Coal Concern Ltd. v. Gokulananda Mohanta Thakur the above point was discussed by the Judicial Committee. In that case a joint demise byway of lease was made in favour of the lessees by the four shebaits and it was observed that no one of the four lessors, with or without the consent of his co-lessors, could sue for an aliquot part of the whole. The Judicial Committee observed: 'The suit must be for the whole of the interest demised, else it fails.'

56. In the case of Jerman Gomez v. Ram Kumar Kaibarta : AIR1934Cal127 the Division Bench of this Court under similar circumstances passed a decree in favour of the plaintiff jointly with the co-sharer landlords.

57. In the case of Raja Pramatha Nath Roy v. Raja Ramani Kanta Roy, (1908) 35 Ind App 73 the Judicial Committee of the Privy Council gave relief by passing a decree in favour of the plaintiff jointly with the co-sharers defendants. At page 77 the Judicial Committee of the Privy Council observed to the effect that it was a general rule that a sharer, whose co-sharers refuse to join him as plaintiffs, could bring them into the suit as defendants, and could sue for the whole rent of the tenure. The Judicial Committee in that case recognised the right of one sharer to sue to bring the tenure to sale for arrears of rent by making his co-sharers defendants parties when they would not join as plaintiffs.

58. In my opinion, in this case also the situation has arisen which would necessitate the application of the said general rule and to pass a decree in favour of the plaintiff in the manner as indicated in the above case of : AIR1934Cal127 . Accordingly, in this case also the plaintiffs who has made the co-sharers landlords defendants in the suit herein would be entitled to get a decree for recovery of possession of the property in suit jointly with the said defendants Nos. 2, 3, 4 and 5 herein. The result, therefore, is that the suit must be held to be maintainable and I reject the contentions raised on behalf of the defendant No. 1 in respect of issue No. 4 and I answer the same accordingly.

59. I, therefore, pass the following decree:

Decree for arrears of rent to the extent of Rs. 13,500 in favour of the plaintiffs jointly with the defendants Pramatha Lal Seal, Pasupati Lal Seal, Purna Lal Seal, the defendants Nos. 2, 3, 4 and 5 herein. The plaintiffs are also entitled to a decree for recovery of possession of the suit premises jointly with the said defendants Nos. 2, 3, 4 and 5 herein against the defendant No. 1. The plaintiffs jointly with the said defendants Nos. 2, 3, 4 and 5 would be entitled to mesne profits at the rate of Rs. 1500 per month from August 1, 1967 till the date of the suit and thereafter at the same rate until possession would be delivered or until October 18, 1971 whichever would happen earlier. If the decree for recovery of possession would remain unsatisfied on 19th October 1971 the plaintiffs and the defendantsNos. 2, 8, 4 and 5 would be entitled to mesne profits at the rate of Rs. 4500 per month, as provided in the lease, from the aforesaid date until possession would be delivered or until three years from the date of the decree herein whichever would happen earlier. The plaintiffs would be entitled to the costs of this suit as against the defendant No. 1. For the reasons as stated above, there would be no order as to costs as against or in favour of the defendants Nos. 2, 3, 4 and 5.. Certified for two counsel.


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