1. This is a suit for the recovery of possession of No. 11/1, Hari Sarkar Lane, Calcutta, arrears of rent and mesne profits.
2. In 1942 one Srichand Khettry, the husband of the defendant borrowed moneys from the plaintiff and executed deeds of mortgage and further charge over the premises in favour of the plaintiff. On 15-6-1943 the total dues of the plaintiff from Srichand amounted to Rs. 6240/-.
3. By a registered conveyance dated 15-6-1943 Srichand sold and conveyed the premises to the plaintiff for the sum of Rs. 7500/-. The consideration was paid by adjustment of the outstanding dues and by payment of Rs. 1260/- in cash. By a lease dated 15-6-1943 the plaintiff leased the premises to the defendant for a period of 5 years commencing from the last day of July, 1943 and ending on June 30, 1948. By this lease-defendant agreed to pay to the plaintiff a monthly rent of Rs. 40/- as also the owner's and occupier's shares of taxes and the plaintiff was given a right of re-entry in default of payment of six months' rent and the defendant covenanted to deliver vacant possession on the expiry or the sooner determination of the lease. The defendant deposited the sum of Rs. 80/- as advance rent. There is a dispute as to whether this lease is validly registered. By a registered agreement dated 23-9-1943 the plaintiff agreed to convey the premises to the defendant for the sum of Rs. 7625/-. It was provided that if the purchase would not complete within 30-6-1948 or if the defendant would fail to pay six months' rent under the lease, the agreement would stand cancelled and the earnest money of Rs. 101/- would be forfeited, and the defendant would give vacant possession in terms of the lease. The plaintiff's name has been mutated as owner of the premises in the records of the Corporation of Calcutta in spite of the objections of Srichand.
4. There were negotiations for sale of the premises by Srichand to a client of Messrs. B. N. Basu & Co. but the negotiations fell through. On 29-9-1944 the plaintiff's pleader gave to the defendant a notice to quit on the expiry of the last day of October 1944, and also demanded payment of the sum of Rs. 400/- being arrears of rent for 10 months from December 1943 up to September 1944. In reply, the defendant's pleader asserted that the relationship between the parties was not that of a landlord and tenant and that there was a conditional sale and the defendant would soon release the property on full payment. By way of rejoinder, the plaintiff's pleader sent a letter on 2-11-1944. As there was default in payment of six months' rent the plaintiff by that letter treated the agreement for sale cancelled and forfeited the earnest money and the deposit of advance rent and called upon the defendant to quit and give possession of the premises in terms of the lease. On 12-11-1944 the defendant's pleader sent a reply reiterating her stand. On 2-1-1945 the defendant's pleader informed the plaintiff that the defendant was ready to buy the premises under the agreement dated 23-9-1943 and also enquired as to what amount was due to the plaintiff under the lease dated 15-6-1943. By another letter dated 10-1-1945 the defendant's pleader purported to tender the sum of Rs. 520/- in full payment ofarrears from December 1943 upto December 1944under the lease. This sum of money was notaccepted by the plaintiff. On 22-1-1945 this suitwas instituted.
5. The following issues were settled at thetrial:
'1(a) was there a lease as alleged in paragraph1 of the plaint? if so, is it admissible in evidence? Is the defendant entitled to raisethese objections in view of the pleadings?
(b) Was there a forfeiture of the lease? If so,was the forfeiture waived?
(c) If not, is the defendant entitled to relief?
2(a) Was the defendant a monthly tenant underthe plaintiff? If so, from what date?
(b) Was such tenancy terminated by valid noticeto quit?
(3) Is the suit maintainable in the absence of leave of the Rent Controller to continue the suit?
(4) To what relief, if any, is the plaintiff entitled?'
6. I have no doubt that the lease dated 15-6-1943 is executed by the defendant. There is a dispute whether this lease has been duly registered. It appears that this lease was presented for registration by the plaintiff on 23-9-1943. The plaintiff duly admitted execution. Four months from the date of execution expired on 15-10-1943. No steps were taken to procure the appearance of the defendant within that period. The Registrar of 'Assurances thereupon by an order dated 16-10-1943 refused registration of the document in respect of the defendant under Sections 73(1)(a) & 34 of the Registration Act, read with Rule 52 (4) of the Bengal Registration Rules. There is an endorsement dated 11-11-1943 that the document was registered in Book No. 1. Under Section 34, Registration Act, no document can be registered under the Act unless the persons executing the document appear before the Registering Officer within the time allowed for presentation. Under Section 35, if any person by whom the document purports to be executed denies its execution, the registering officer must refuse to register the document as to the person so denying. Under Rule 55 of the Bengal Registration Rules, if some of the executants appear and admit execution and others do not appear, the document shall be registered in respect of those who admit and registration shall be refused as regards others.
7. There is no doubt that there is no effective registration as against the defendant. She never appeared before the Registrar. Under Rule 55, Bengal Registration Rules, the registration was refused as against her but the document was registered as against the plaintiff who admitted execution. Indeed it is settled law that even if the Registrar had purported to register the document against the defendant, such registration would not be effective as against the defendant who neither appeared nor admitted execution. -- 'Eziekeil & Co. v. Armada Charan Sen', 50 Cal 180.
8. The document purports to be a lease for five years. Under Section 107, T. P. Act', such lease could be made only by a registered document. As the document is not duly registered, there is no effective lease. Under Section 17, Registration Act, such lease must be registered and in the absence of registration under Section 49, the lease cannot affect the premises and cannot be received as evidence of any transaction affecting the property. The lease, however, is admissible in evidence of part performance of a contract for the purpose of Section 53A, T. P. Act, and also as evidence of any collateral transaction and not required to be effected by registered instrument, e. g. to show the nature and character of possession of the defendant -- 'Vishwanath Haibatrao Deshpande v. Raghunath Dhondo Deshpande', I. L. R. (1942) Bom 595. -- 'J.C. Galstaun v. Prafulla Kumar', 36 Cal W. N. 583. In -- 'Suruchibala v. Surujmia', 46 Cal. W. N. 419, there was a dispute as to, title and by an unregistered solenama filed in a suit for ejectment, the defendants agreed to continue in possession as tenants under the plaintiff. Pal, J., held that the document was admissible in evidence to show that though before the solenama the defendants might have been in possession in assertion of right of ownership, after the solenama the character of their possession became changed and they began to hold the lands only as tenant under the plaintiff.
9. The plff, has sworn that the deft, through her husband paid to the plaintiff rent from 15-6 1943 up to November 1943. I read the correspondence as an admission by the defendant that all sums payable under the lease and accrued due prior to December 1943 has been paid. Counterfoils of rent receipts issued to the defendant have been proved. The defendant has not chosen to give any evidence. I have no hesitation in coming to the conclusion that the rent up to and including November 1943 was paid by the defendant to the plaintiff.
10. I hold that the relationship between the plaintiff and the defendant was that of landlord and tenant, that the defendant was in possession of the premises as tenant and as such paid rent to the plaintiff.
11. If there is possession under a void or invalid lease, there is a tenancy at will. This situation generally arose in England when the leasewas oral and offended against the statute offrauds. The law implied that, in the first instance, there was a tenancy at will and that it wasconverted by payment of rent into a tenancy fromyear to year or from month to month as the casemight be. The law is the same in India. Mulla'sTransfer of Property Act, 3rd Edn. pp. 630, 631, 633,658. -- 'Darbarilal v. Ranigunge Coal Association, Ltd. A. I. R. 1944 Pat 30. -- 'Ramchandrav. Syameswari', 42 Cal L. J. 71. In EnglandCourts of Equity went further and said that thelease though void as a lease was valid as a contract and could be enforced by specific performance and also said that if there was part performance of the lease the defence of the statuteof frauds was excluded. In India there is nosuch equitable doctrine yet under Section 53A,T. P. Act., the lease may be enforced as a contractto the extent and in the manner provided in thatsection. The implied monthly tenancy is therefore subject to the modification if any made bythat section.
12. In this case there is an unregistered lease followed by payment and acceptance of rent. By implication of law there is therefore a tenancy from month to month. The terms of the lease may also be enforced under Section 53A in the manner and to the extent provided by that section.
13. The tenancy commenced on 15-6-1943. The rent for 15 days upto the end of June 1943 was paid & thereafter subsequent rent from month to month according to the English calendar was also paid. I have no doubt that the tenancy in the eye of the law is deemed to be a tenancy from month to month according to the English calendar and is terminable by 15 days' notice expiring with the end of a month of such tenancy. In -- 'Udoytara y. Habibar', 42 Cal W. N. 771 there was an unregistered lease executed in the middle of the year followed by payment and acceptance of rent from the beginning upto the end of the year; Mukherjee J. held that there was a tenancy, from month to month according to the English calendar.
14. The notice to quit by the end of October, 1944 was served on the defendant on the 4th October 1944. I have no doubt that this notice is a I valid notice to quit.
15. It is contended by the defendant that the notice to quit has been waived by service of the notice dated 2-11-1944 whereby the plaintiff demanded possession. In my judgment, this contention is unsound. Under Section 113, T. P. Act, there can be waiver of notice to quit with the express or implied consent of the tenant by any act on the part of the landlord showing an intention to treat the lease as subsisting. The letter dated 2-11-1944 does not show any intention to treat the lease as subsisting. It is a demand for possession. It is not a notice to quit in term of Section 106, T. P. Act. It does not show that the defendant could remain rightfully in possession after the expiry of October, 1944.
16. It is also contended by the defendant that the plaintiff waived the notice to quit by allowing the defendant to collect rent and pay taxes. In my judgment, this contention also is plainly unsound. The plaintiff is therefore entitled to a decree for ejectment.
17. The plaintiff must succeed on another ground also. In -- 'Ram Pratap v. National Petroleum', Co. Ltd. 54 Cal. W. N. 58, there was an unregistered lease for a term of five years for manufacturing purposes. The lessee was let into occupation and paid rent which was accepted. On the expiry of the period of the lease, the lessor instituted a suit for ejectment. The defence was that the letting for manufacturing purposes followed by payment and acceptance of rent, must be deemed to be a lease from year to year terminable by six months notice to quit and that as no such notice to quit was served, the plaintiff had no cause of action. P.N. Mitra and R.C. Mitter, JJ., held that:
(1) Section 53A, Transfer of Property Act, by plain implication enables the transferor to enforce a right expressly provided by the terms of the contract:
(2) The fulfilment of all the conditions mentioned in the section is not a condition precedent to the enforcement of such right:
(3) The unregistered document is admissible in evidence in a suit to enforce this right of the transferor.
18. The Court also observed that there was no doubt that in that case if the transferor wants to enforce the right provided by the contract he must have put the transferee in possession in part performance of the contract. I have no doubt that the same result would follow if the transferee being already in possession continues in possession in part performance of the contract and does some act in furtherance of the contract.
19. This decision is a decision of a Division Bench of this Court and I have no doubt that I should follow it. I do not consider myself free to put another construction on the section.
20. I confess that I did not foresee this aspect of the case when I framed the Issues. But I think the plaint in this case can be fairly read as a plaint to enforce the terms of the lease. There is no doubt that the defendant continued in possession as lessee in part performance of the contract, of lease and as such paid rent in furtherance of such contract. The plaintiff is therefore entitled to enforce the terms of the lease. Under the lease the plaintiff is entitled to re-enter if there is default in payment of six months rent and on the determination of the lease on such default the defendant is bound to quit and give vacant possession to the plaintiff. There is no doubtthat there has been default of six months rent.The lease has been determined. The defendantmust therefore in terms of the lease quit the premises.
21. Mr. Mitra has conceded and in my view rightly that it is not necessary to obtain the leave of the Rent Controller to maintain this suit.
22. There was some suggestion that the defendant is entitled to show that the plaintiff is not the owner of the premises inasmuch as she was not in possession of the premises at the time of the commencement of the tenancy. There is no substance in this contention. In -- 'Krishnaprasad v. Barabani Coal Concern', 41 Cal W. N. 1253 at p. 1259, (P. C.) His Lordship of the Judicial Committee observed as follows:
'There is in English case law some authority for the view that a tenant is only estopped from denying his landlord's title if at the time when he took his lease he was not already in possession of the land. But in Section 116 the Indian Legislature has formulated no such condition. The words 'at the beginning of the tenancy' give no ground for it. When a demise of land is made and acted on, when the tenant proceeds to occupy and enjoy under a grant, gets the shelter of the grantor's title and the benefit of his covenants, it is difficult to see why during the continuance of the tenancy' he should be free of this form of estoppel. 'Tenant who has occupied but not entered' is a difficult notion to thrust into Section 116 and quite impossible to find therein. * * * In -- 'Vertannes v. Robinson', 54 Ind. App. 276 (P. C.) the Board applied Section 116 to a case in which it was difficult to say that the tenant had obtained possession from the landlord.'
23. The plaintiff is, therefore, entitled to a decree for possession and ejectment of the defendant from premises No. 11/1. Hari Sarkar Lane and a decree for the sum of Rs. 400/- on account of arrears of rent and a decree for mesne profits at the rate of Rs. 40/- per month from 1-10-1944 until vacant possession is delivered up and costs.
24. The entire decree would not be executed for,a period of three months from today. The plaintiff is also entitled to reserve costs and the plaintiff will be entitled after the expiry of threemonths to withdraw the moneys deposited in thisCourt to the credit of the suit in pro tanto satisfaction of his claim under this decree.