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indroloke Studio (Private) Ltd. Vs. Sm. Santi Devi and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKolkata High Court
Decided On
Case NumberS.C. Appeal No. 10 of 1961
Judge
Reported inAIR1962Cal583
ActsConstitution of India - Article 133 and 133(1)
Appellantindroloke Studio (Private) Ltd.
RespondentSm. Santi Devi and ors.
Appellant AdvocatePramatha Nath Mitra, ;Bejoy Kumar Bhose and ;Bali Basu, Advs.
Respondent AdvocateNoni Coomar Chakravarty and Chittatosh Mookerjee, Advs. for Party Nos. 1 and 2, ;Ashutosh Ganguli and Hemendra Nath Lahiri, Advs. for Party No. 3
Cases Referred(Vide Rajes Kanta Hoy v. Santi Devi
Excerpt:
- debabrata mookerjee, j. 1. this is an application for a certificate under article 133 of the constitution in respect of a decision of a division bench of this court affirming the trial court's decree for possession and mesne profits.2. the suit was instituted in the court of the sub-ordinate judge at alipore by the plaintiff kanhyalal kanodia, since deceased and now represented by his widow sm. santi debi and minor son chandra kumar, opposite parties nos. 1 and 2, his heirs and legal representatives.3. the plaintiff asked for a decree for possession and mesne profits against three persons, p. n. roy, kanti narayan misser and the petitioner indraloke studio ltd., impleaded respectively as defendants nos. 1, 2 and 3. kanti narayan misser did not contest the proceedings, but the said p. n......
Judgment:

Debabrata Mookerjee, J.

1. This is an application for a certificate under Article 133 of the Constitution in respect of a decision of a Division Bench of this court affirming the trial court's decree for possession and mesne profits.

2. The suit was instituted in the court of the Sub-ordinate Judge at Alipore by the plaintiff Kanhyalal Kanodia, since deceased and now represented by his widow Sm. Santi Debi and minor son Chandra Kumar, opposite parties Nos. 1 and 2, his heirs and legal representatives.

3. The plaintiff asked for a decree for possession and mesne profits against three persons, P. N. Roy, Kanti Narayan Misser and the petitioner Indraloke Studio Ltd., impleaded respectively as defendants Nos. 1, 2 and 3. Kanti Narayan Misser did not contest the proceedings, but the said P. N. Roy and the petitioner Indraloke Studio did, and a decree was made directing delivery of khas possession and payment of mesne profits for which separate proceedings were directed for ascertainment of the amount.

4. The petitioner Indraioke Studio Ltd. alone appealed against the decision of the Subordinate Judge but the appeal was dismissed by a Division Bench of this Court which affirmed the judgment and decree of the trial court. It is against this appellate judgment that the petitioner seeks to appeal to the Supreme Court.

5. The dispute relates to a property known and numbered as premises Nos. 20 and 21 Babu Ram Ghose Road, Tollygunge, containing extensive grounds and structures upon them. The plaintiff's case was that on November 24, 1944 he had granted two sub-leases to defendants Nos. 1 and 2, P. N. Roy and Kanti Narayan Misser for a term of ten years, and on the expiry of the said term, for a further period of five years, at the option of the lessees, on terms and conditions embodied in the two registered instruments of lease. The premises were on the date of the sub-leases under military occupation and it was provided that the leases would commence upon the property being released by the military authorities. The said indentures provided: inter alia for the payment of specified monthly rents in respect of the two premises, and stipulated that the rents were to be paid regularly in advance within the 15th day of each month for which they were payable, whether such rents were formally demanded or not. It was also provided that during the period of lease the defendants would have no power to assign, sub-let or sub-demise the said premises in any manner whatever without the written consent of the plaintiff, first had and obtained, that the lessor would have the power to determine the leases if the lessees did not pay rent for two consecutive months and that on breach of any of the covenants or conditions, the leases would 'ipso facto' determine and the plaintiff would thereupon be entitled to re-enter the property. The premises being derequisitioned on March 31, 1947, the leases commenced on and from April 1, 1947.

6. The plaintiff alleged that the said defendants P. N. Roy and Kanti Narayan Misser had failed and neglected to pay rents ever since the commencement of the leases and had committed another breach of covenant by making unauthorised assignments of their right, title and interest in the premises. On December 19, 1946 defendant No. 2 Kanti Narayan Misser had made an assignment in favour of one Rohini Kumar Sen, Gupta without having previously obtained the plaintiff's consent to the transfer. The said Rohini Kumar Sen Gupta thereafter transferred his interest on August 14, 1947, in favour of the petitioner Indraloke Studio Ltd. defendant No. 3, and on the same date (14-8-1947) the said P. N. Roy, defendant No. 1 also assigned his right, title and interest in the premises in favour of the petitioner without previously obtaining the plaintiffs consent to such assignment. The plaintiff's case accordingly was that there had occurred breaches of two of the conditions provided for in the instruments of lease, with the consequence that the leases had been determined by forfeiture and such breaches not being capable of remedy, the plaintiff claimed to be entitled to recover possession which he had failed to obtain despite service of notices upon the defendants. The plaintiff accordingly prayed for a decree for possession, mesne profits and other reliefs.

7. As indicated P. N. Roy and the present petitioner (defendants Nos. 1 and 3) contested the proceedings and raised several defences the import of which will not be fully intelligible unless certain facts are stated. Indeed, the trial court observed that there were 'certain other facts' which had not been mentioned in the plaint and which had been only partially disclosed in the written statements, although they had 'important bearing' on the questions involved for decision in the suit. The learned trial Judge accordingly referred to certain admitted documents including a previous judgment of this court for the purpose of putting the cases of the parties in proper perspective. Those facts therefore require to be briefly noticed.

8. The suit property belonged to certain persons described in the proceedings as the Ghoses. In July, 1937, the Ghoshes granted certain leases for 20 years in favour of Film Corporation of India Ltd, on certain terms which reserved to the lessors the right to forfeit the leases on the happening of certain events. In 1940 the Film Corporation on receipt of a sum of Rupees two Lacs mortgaged their right, title and interest to the present plaintiff, but default in payment of dues having occurred, the mortgagee instituted a suit on October 31, 1941. The Receiver appointed in that suit, sold the property to the mortgagee (the present plaintiff) for Rs. 2,16,000/-, but before the sale took place, the Ghoses had by notices dated September 18, 1941 determined the leases in favour of Film Corporation on the ground of forfeiture. Meanwhile in 1941 a firm of Film Producers known as Unity Productions had gone into possession of the studio on the property as sub-lessee under the Film Corporation, and the plaintiff by virtue of his title by purchase at the court sale, accepted the firm as his monthly tenant with effect from June 15, 1942. The property was then requisitioned by Government for military use; possession was actually taken in August, 1943 and It remained in military occupation until March 31, 1947. Upon derequisition there were conflicting claims for the compensation allowed on account of military occupation of the premises, but the Ghoses eventually retired from the contest in view of the leases they had meanwhile execute a in favour of the present plaintiff on November 24, 1944, for a period of 23 years with retrospective effect from December 1, 1941. These leases were obviously taken by the plaintiff to retrieve his position when he realised that he had purchased nothing at the court sale in October, 1941 since the leases in favour of Film Corporation Ltd. had already been determined on September 18 of that year. On January 1, 1944 the plaintiff wrote to Unity Productions confirming the arrangement regarding the Studio on the premises that he would pay a sum of Rs. 5000/- towards expenses incurred in maintaining the machinery and equipments and conferring on the firm the right to use and occupy the Studio free of rent for a period of 10 years as from January 1, 1943. There were other terms and conditions in the letter Ext. A (7) to which no further reference need be made at this stage. On January 10, 1947 a registered indenture of lease (Ext. J-1) was executed by the partners of Unity Productions, transferring their interest in favour of Seth Indra Kumar Karnani in consideration of certain advances of loan. This assignment was consented to by the plaintiff by his letter (Ext. A/6) of even date. By a registered instrument (Ext. J/3) dated August 14, 1947 the said Indra Kumar Karnani in consideration of a sum of Rs. 80,000/- transferred to the petitioner his right, title and interest in the property including the studio and the structures on the premises.

9. Against the background of these facts which found no mention in the plaint, the defence case was considered by the trial Judge. The said P. N. Roy (defendant No. 1)pleaded that there had been no breach of covenant relating to payment of rents since the rents payable had been adjusted against payments directly made to the plaintiff'slessors. His defence further was that the plaintiff had by the indenture dated November 24, 1944 acknowledged receipt of a sum of Rs. 25,000/- which he and defendant No. 2 had advanced to him on certain terms and conditions and he admitted having obtained from the military authorities a sum of Rs. 47,709/- as compensation for damages which he in his turn had paid to the petitioner, defendant No. 3 as the ultimate assignee of the sub-leases.It was also his case that the plaintiff had been fully aware of the assignment made by him and consequently there had occurred no breach of covenant against assignment and that the plaintiff had himself purported to assign his right, title and interest in the leases to the partners of Unity Productions and by a written representation dated January 10, 1947 had accorded his approval and consent to further assignments by them. The petitioner defendant No. 3 generally adopted the defence of P. N. Roy, defendant No. 1. The petitioner's specific case was that prior to January, 1947 the plaintiff had been indebted to the firm of United productions to the extent of Rs. 50,000/- and had let out the premises in suit to the said firm on certain conditions, that with the consent in writing of the plaintiff and in consideration of a sum of Rs. 80,000/- paid by the petitioner to the firm of Unity Productions the partners of the firm assigned their right, title and interest to Seth Indra Kumar Karnani who thereafter transferred his interests to the petitioner. Its further case was that the sum of Rs. 50,000/- due from the plaintiff, was liable to be adjusted against rents, that the plaintiff had been well aware of the fact that rents payable to the superior land lords were being paid by the petitioner for the last four years and that in those circumstances the plaintiff was estopped from raising any objection to the assignments which had all been made with his knowledge and consent.

10. On the cases of the respective parties and their pleadings a number of issues were framed for trial of which only the following need be noticed.

'5. 'Was Kanhyaial Kanodia at all material times orat any time whatsoever owner in possession of the properties in suit as alleged in paragraph of the plaint?'

6 (a) 'Did Kanhyaial Kanodia lease out the premisesin suit to the firm Unity Productions by the alleged document dated 1-1-1954?'

6(b) 'Did Kanhyaial Kanodia consent to the saidlease being transferred and/or assigned in favour of oneIndra Kumar Karnani by his alleged letter dated 10-1-1947addressed to Indra Kumar Karnani?'

6(c) 'Can the alleged consent contained in the plaintiff's alleged written representation dated 10-14947 beconstrued as consent to the assignment in favour of defendant No. 3 of the two documents of lease, dated 24-11-1944 in favour of defendants Nos. 1 and 2, as alleged in paragraph 5 of the written statement of detendant No. 1and paragraph 13 of the written statement of defendant No. 3?'

6(d) 'What is the effect of the leases in favour ofUnity Productions and the document of leases in favour of defendants 1, 2 and ultimately assigned in favour of defendant No. 3 and of the possession of the premises by the defendant No. 3?'.

7 (a) 'Was there any instance of non-payment of rent with respect to the lease in suit?'

7(b) 'Is the story of adjustment of such rent against the dues from Kanhyalal Kanodia to the lessees and/or by way of payment of head rents to the superior landlords true?'

8 (a) 'Has there been a breach of the terms of the aforesaid two documents of lease in favour of the defendant Nos. 1 and 2?'

8(b) 'Are these leases liable to be determined byforfeiture and have they been actually determined?' '

11. We have set out the important issues in order to be able to appreciate some of the questions intended to be raised in the proposed appeal to the Supreme Court.

12. The trial Judge answered the issues against the petitioner and his co-defendants and found that Ext. A-7 dated 1-1-1944 to which we have referred was not a genuine document; that even on the assumption that the document was genuine, it was invalid as a lease in view of the provisions of Section 107 of the Transfer of Property Act and Section 17(1)(d) of the Indian Registration Act; that the document was not available as a defence in view ot the fact that the conditions of the bargain between the parties could not be ascertained from it with reasonable certainty; that even if it was admissible to prove the date and character of Unity Productions' possession it was useless, since the suit had been brought within twelve years of the execution of the document. It was found that since there was no lease on the basis of the writing, there could be no valid assignment in favour of the petitioner, and in any event, the assignments in favour of the petitioner by defendants Nos. 2 and 3 involved breach of one of the conditions entitling the plaintiff to re-enter. Breach of covenant relating to payment of rents was also held proved. Lastly, it was found that although the assignment by defendant No. 2 in favour of Rohini Kumar Sen Gupta had taken place in December, 1946 before the commencement of the leases in April, 1947, it did not alter the situation inasmuch as Rohini's assignment as well as the assignment of P. N. Roy, defendant No. 1 was made after the commencement of the leases on April 1, 1947.

13. In this view, the suit for possession was decreed and the plaintiff was held entitled to mesne profits which were directed to be ascertained in a separate proceeding.

14. Dissatisfied with this decision the petitioner appealed from the decree but this court dismissed the appeal and affirmed the trial court's decision.

15. Several questions were debated before the learned Judges of this court who proceeded to consider the defence case on the footing, first, of the leases executed in November, 1944 and secondly, on the footing of the petitioner's claim of title through the firm of Unity Productions.

16. The learned Judges held that non-payment of rent on account of the leases in favour of defendants Nos. 1 and 2 had been established with the consequence that the petitioner was not entitled to relief against forfeiture under Section 114 of the Transfer of Property Act. They further found that the assignment by defendant No. 2 to Rohini Kumar Sen Gupta (Ext. J) and then by Rohini to the petitioner (Ext. J2) had not been consented to by the plaintiff. But they held that in the absence of contract to the contrary, part assignment would not bring about forfeiture. This was on the footing that the assignment by Misser, defendant No. 2 to Rohini having taken place prior to the commencement of the leases on April 1, 1947, Misser's assignment was in effect a transfer of non-existent property; but that position was, in the ultimate analysis, found to be of no help to the defence inasmuch as Misser's interest in the property on the date of his assignment, in favour of Rohini was contingent interest and as such transferable. Alternatively it was found that even on the assumption that such interest in property being non-existent at the date of Misser's assignment in favour of Rohini, the assignment would still be operative on a future date on the principle of feeding the Estoppel. Reliance was placed upon Section 43 of the Transfer of Property Act, the application of which, the learned Judges held, would be repelled only upon proof that the assignee, namely, Rohini had known about the non-existence of present interest and consequent invalidity of the lease in his favour. The Division Bench referred to a number of decisions to, strengthen its conclusion that in any event Misser's assignment in favour of Rohini prior to the date of the commencement of the lease, did not have the effect of making the transfer inoperative and the consequent forfeiture could not be said to have been saved by reason of part assignment. Accordingly the learned Judges concluded that there had been a transfer of the entire lease-hold, first, by Misser and then by P. N. Roy which entailed forfeiture by reason of breach of one of the express conditions of the plaintiffs grant in favour of defendants Nos. 1 and 2 by registered instruments dated November, 24, 1944,

17. On the other part of the petitioner's defence based on claim through the firm of Unity Productions, the learned Judges held that the two documents Exts. A6 and A7 were unreliable. Even on the assumption that they were genuine documents, they were invalid by reason of non-compliance with the provisions of Section 107 of the Transfer of Property Act and Section 17(1)(d) of the Registration Act. On the other question relative to these documents, namely, whether they could be relied upon in aid of application of Section 53A of the Transfer of Property Act, the learned Judges held that the terms of the purported lease could not with reasonable certainty be ascertained from those writings since the essential terms could not be known with any amount of precision particularly from the writing Ext. A(7).

18. Thus, the Division Bench found that the defence contentions were untenable and the plaintiff's case of forfeiture of the leases had been established. Accordingly, the trial court's decree was affirmed.

19. We have briefly summarised the findings of the appeal court in order to see whether the petitioner has been able to satisfy the conditions for the issue of a certificate under Article 133. The prayer is for certificate undes Sub-clauses (a), (b) and (c). If the prayer was confined to Sub-clause (c) the court certifying would have only to be satisfied that the questions intended to be canvassed in the proposed appeal are questions which are fit for furtherconsideration by the Supreme Court. We think, however, that although questions of law are involved, it would not be right to hold that the questions are such as deserve to be certified under Sub-clause (c). We have, therefore, to consider whether a certificate can properly issue under Sub-clauses (a)and (b) of Article 133(1).

20. The appellate judgment being a judgment of affirmance we have to be satisfied first whether the value of the subject-matter of the dispute in the court of first instance and still in dispute on appeal was and is Rs. 20,000/-or upwards, or whether the decree proposed to be appealed from, involves directly or indirectly a claim or question of the like amount We have further to be satisfied that the intended appeal involves substantial questions of law.

21. There being a serious dispute between the parties as to whether the valuation test is satisfied, this court remitted the question under Order XLV Rule 5 of the Codeof Civil Procedure to the trial court for a report. That court accordingly held an enquiry and made a report to which the petitioner as well as the opposite parties filed their respective objections.

22. In making its report the trial court took intoaccount the respective valuation statements of the parties and came to the conclusion that on the date of institution of the suit, the value of the subject-matter of the dispute was Rs. 38,170/-. This estimate was arrived at on the basis of the unexpired period of the lease-hold interest, i.e., for five years and nine months. The leases which in the first instance were for a term of ten years commenced on April 1, 1947. The suit having been instituted on June 19, 1951, the value of the dispute at the date of the suit was taken to be the value of the unexpired period of the lease-holdinterest. The report further stated that the value of the dispute on appeal to the Supreme Court was reduced to 'nil' since the term of the lease had expired by efflux of time. The clause in the leases which gave an option of renewal for another term of five years, was not taken into account. The opposite parties took exception to this report and stated that value of the dispute at the date of institution of the suit did not exceed the sum of Rs. 19,000/-and odd, whereas the petitioner objected to the valuation report on the ground that a proportionate sum for the unexpired period of the leases as well as the sum of Rs. 80,000 paid by the petitioner had not been taken into account in making the report According to the petitioner it had expended a sum of Rs. 1,35,000/- for acquiring the lease-hold interest in the property and in the event of the proposed appeal to the Supreme Court being allowed, the petitioner would not be liable to pay any amount either as mesne profits or as rent at least for the period up to March, 31, 1957. In any estimate, the petitioner contends, that the value of the subject-matter of the dispute before the trial court and still in dispute on appeal totals a sum of Rs. 93,000/-, besides, a large sum of money expended on Improvement of the property either by way of erecting new structures or by renovating the existing ones. In the course of the argument before us it was stated on behalf of the petitioner that there has since been a decree made for mesne profits amounting to Rs. 7,65930/- at the rate ofRs. 10,000/- per month. We cannot, however, take into account the amount of mesne profits to which the opposite parties may have been found entitled, for the purpose of deciding the value of the dispute under Article 133 of the Constitution. Thus, even according to the opposite parties'estimate the value of the dispute at the date of institution of the, suit amounted to Rs. 19,000/- and odd. This estimate was not accepted by the trial court which held that the value of the dispute was Rs. 38,170/- at the date of institution of the suit. Assuming that the basis adopted in estimating the value is the correct basis and Rs. 38,170/-was the value of the subject-matter of the suit at the date of its institution, it seems to us unreasonable to hold that the value of the dispute on appeal would be reduced to 'nil', even if it be held that the leases have expired by efflux of time. This would be the position even if we declined to take into account the petitioner's contention1 that it had paid a sum of Rs. 80,000/- to obtain assignment of the two leases and was entitled, at its option, to a renewal for another term of five years. In our opinion, it can reasonably be said that the value of the subject-matter of the dispute in the court of first instance and still in dispute on appeal was and is not less than Rs. 20,000/-.

23. In another view it may be said that the decree proposed to be appealed from involves directly or indirectly some claim or question respecting property of the value of Rs. 20,000/- or upwards. It seems to us that the requirement of Sub-clause (b) of Article 133(1) would be satisfied if the property to which the claim or question relates is worth Rs. 20,000/- or upwards. While under Sub-clause (a) it is the 'subject-matter of dispute' which should be worth Rs. 20,000/- or more, it is the 'property' under Sub-clause (b) which is to be of the like value. The word 'property' does not necessarily mean the 'subject-matter of the dispute'. Sub-clause (b) has been construed to refer to property which is other than the subject-matter of the dispute, but is affected by the decision in the suit. This was the view taken in Central Talkies v. Dwarka Prasad, (S) : AIR1956All348 . In that case the plaintiff had brought a suit for ejectment of a tenant from a cinema house which was worth more than Rs. 20,000/-. The suit was dismissed by the lower courts but on second appeal the High Court decreed the suit. The defendant then applied for leave under Article 133. It was held that although the right of tenancy which the appellant claimed might be worth less than Rs. 20,000/-, he was certainly laying claim to possession over the cinema house which was worth considerably more than Rs. 20,000/-. If this is the true view, which we think it is, the present case involves a claim in respect of property worth the required value and accordingly satisfies the requirement of Sub-clause (b) of Article 133(1) of the Constitution. On either view, the valuation test is satisfied and the petitioner is, in our opinion, entitled to a certificate under Article 133 of the Constitution, provided the other requirement is fulfilled.

24. The decree proposed to be appealed from being one of affirmance, we have also to be satisfied that the intended appeal involves some substantial question of law. In order that a question of law might be said to be substantial, there should be scope for doubt or difference of opinion in the decision proposed to be appealed from. It is true, the learned Judges of this court have referred to a number of authorities in aid of the conclusions they reached on questions of law raised before them. But we do not think it is possible to say with any amount of assurance that there is no scope at all for any kind of doubt or difference of opinion. It is not for us to express our views on the merits of the questions involved; we are only concerned to see whether the intended appeal raised some legal questions of substance. Indeed, our attention has not been drawn to any pronouncement of the Supreme Court on the questions of law involved except on one relating to the transfer of contingent interest (Vide Rajes Kanta Hoy v. Santi Devi, : [1957]1SCR77 .

25. From the findings reached by the Division Bench which we have set out above, it will be seen that the decision in the appeal was not rested on questions of fact only; the learned Judges had to construe a number of documents and consider their legal effect. In doing so, they drew upon the provisions of Transfer of Property Act relating to forfeiture of leases, relief against forfeiture and transfer of contingent interest. They dealt with the effect of non-compliance with the provisions of Section 107, the true effect of the provision contained in Section 53A of the Transfer of Property Act and the scope of Section 43 of that Act in relation to non-existent or contingent interest.

26. The petitioner intends to urge in the proposed appeal that the learned Judges erred in holding that there could be a transfer of non-existent property or that such transfer could be given effect to by invoking the principle embodied in Section 43 of the Transfer of Property Act. It is proposed to be argued that the learned Judges erred in applying the principle of 'feeding the estoppel' for the purpose of upholding as valid the purported assignment (Ext. J) of Kanti Narain Misser. The question dealt with and decided by the learned Judges that contingent interest does not require a prior interest for its support and does not always take effect after the termination of such prior interest is also intended to be canvassed. According to the petitioner, the construction put upon Section 23 of the Transfer of Property Act is erroneous, in that the learned Judges field that the section was not an exhaustive provision. It is Said that after having held that part assignment of a lease does not amount to breach of covenant against alienation and does not entail forfeiture on that ground, the learned Judges erred in thinking that the petitioner was not entitled to relief against forfeiture. These questions are intended to be raised before the Supreme Court. It has been contended that the learned Judges misconstrued Exts. J(i) and J(3) and erred in holding that the lease-hold interest of the firm of Unity Productions under the 1942 lease had not been validly assigned to the petitioner, and that they misconstrued Exts. A(6) and A(7) and erred in holding that the petitioner could not avail itself of the provision of Section 53A of the Transfer of Property Act on the basis of these writings.

27. These are some of the questions intended to be raised in the proposed appeal. It is not for us to express our opinion on their merits, but we are persuaded that these are substantial questions of law which require consideration by the Supreme Court.

28. We accordingly direct that a certificate under Sub-clauses (a) and (b) of Article 133(1) of the Constitution be drawn up and issued.

29. The petitioner has applied for stay of execution of the decree pending appeal to Supreme Court. This application has been opposed. Taking into account all the facts and circumstances of the case, we order stay of delivery of possession of the property in suit for a limited period of two months from this date subject to further orders of the Supreme Court.

30. The costs of this application will be costs in the appeal to the Supreme Court. Hearing fee is assessed at five gold mohurs.

Bose, C. J.

31. I agree.


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