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Kiran Chandra Bose Vs. Dutt and Co. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1925Cal251,85Ind.Cas.522
AppellantKiran Chandra Bose
RespondentDutt and Co.
Cases ReferredLord Ashburton v. Nocton
Excerpt:
- .....been referred to above, and also, as indicated above, there was an alleged payment of 17 months' advance rent from aghrayan 1328 to chaitra 1329 b.s. on the 16th may, 1922, the receiver served a notice upon the defendant firm asking them to pay the arrears of rent. this demand was followed by a further demand on the 14th september, 1923. on the 10th october, 1923, the defendant firm wrote a letter to the plaintiff alleging the payment of the said advance rent. on the 11th october, 1923, the plaintiff's solicitor wrote to the defendant firm claiming payment of the arrears of rent and denying the right of nalin chandra shaw to receive the said advance rent or any portion of the same.4. although oral evidence was taken in this case, the matter hag been argued before me by the plaintiff's.....
Judgment:

C.C. Ghose, J.

1. The plaintiff, who is the Receiver appointed in Suit No. 1109 of 1921, is in possession of premises No. 3, Schalch Street in the town of Calcutta, whereof the defendant firm are the tenants occupying a portion at a monthly rent of Rs. 175. The present suit is one for arrears of rent from the month of Jaistha 1329 B.S. up to the end of Kartik 1330 B.S., both inclusive, amounting to Rs. 3,150.

2. In their written statement the defendant firm state that the demised portion of the said premises is held by them tinder a registered lease, dated the 7th December, 1921, granted by one Nalin Chandra Shaw, who is the mortgagor, of whose properties the plaintiff is the Receiver, for a period of five years, commencing from the 17th November, 1921, with a further option of two years, at a monthly rental of Rs. 175, and that as a condition precedent for the execution of the said lease, the said mortgagor took an advance of 17 months' rent, viz., Rs. 2,975. The defendant firm further state that under the said lease the landlord was to pay all municipal taxes, but that there having bean failure to pay the same they had been obliged to pay a sum of Rs. 816.14 on account of municipal taxes, for which they are entitled to get credit. They state further that they are willing to pay whatever may be due and owing to the plaintiff after deducting from his claim the said two sums and a further sum of Rs. 198 referred to in para. 3 of the written statement.

3. It appears from the evidence adduced in this case that on the 25th August, 1919, one Nalin Chandra Shaw executed a mortgage of certain properties, including premises No. 3, Schalch Street, in favour of one Gopiram Bhotica for Rs. 2,00,000. The mortgagee instituted a suit, being Suit No. 1109 of 1921, to enforce his mortgage. In that suit the plaintiff was appointed on the 21st September, 1921, Receiver of the mortgaged properties. The Receiver was not to take possession till the end of November, 1921. On the 7th December, 1921, there was the registered lease granted by Nalin Chandra Shaw, which has been referred to above, and also, as indicated above, there was an alleged payment of 17 months' advance rent from Aghrayan 1328 to Chaitra 1329 B.S. On the 16th May, 1922, the Receiver served a notice upon the defendant firm asking them to pay the arrears of rent. This demand was followed by a further demand on the 14th September, 1923. On the 10th October, 1923, the defendant firm wrote a letter to the plaintiff alleging the payment of the said advance rent. On the 11th October, 1923, the plaintiff's solicitor wrote to the defendant firm claiming payment of the arrears of rent and denying the right of Nalin Chandra Shaw to receive the said advance rent or any portion of the same.

4. Although oral evidence was taken in this case, the matter hag been argued before me by the plaintiff's Counsel on the footing that it may be taken as admitted that on the 7th December, 1921, the defendant firm had paid to the mortgagor, Nalin Chandra Shaw, 17 months, rent in advance and that it was not till the 17th May, 1922, that notice of the appointment of the plaintiff as Receiver of the mortgaged properties was served on the defendant firm. Now the lease in the present case relied upon by the defendant firm is affected by the doctrine of lis pendens embodied in Section 52 of the Transfer of Property Act. In the second place, the powers of a mortgagor to grant leases after the execution of a mortgage are very limited. He may no doubt make a lease conformable to usage in the ordinary) course of management; for instance, he may create a tenancy from year to year in the case of agricultural lands or from month to month in the case of houses; but it is well settled that a mortgagor cannot after the date of the mortgage, and in the absence of an express power in that behalf, or the concurrence of the mortgagee create except as stated above, a lease or tenancy which will bind the mortgagee, and if he purports to create such a lease or tenancy, the mortgagee or his transferee may proceed to eject the lessee or tenant [see in this connection Deo v. Maisey (1828) 8 B. & Cr. 767 and Gibbs v. Cruikshank (1873) 8 C.P. 454]. If that is so the payment of rent in advance after the institution of the suit on the mortgage and indeed by virtue of a lease granted by the mortgagor after the execution of the mortgage is not binding upon the mortgagee or on the plaintiff as Receiver of the mortgaged properties. The matter is concluded by authority [see in this connection De Nicholls v. Saunders (1870) 5 C.P. 589]. Payments made by tenants to a mortgagor after a mortgage, but before notice of it, must, in order to be valid against the mortgagee, have been made in respect of rent which was due at the time of payment or became due before notice of the mortgage Cook v. Guerra (1872) 7 C.P. 132], but where a lessee has prepaid to his lessor all the runt to become due under the lease and the lessor then mortgages the premises to a mortgagee who neglects to make proper enquiry of the lessee, who is in possession, the mortgagee cannot recover any part of the rent reserved by the lessee; see Green v. Rheinberg (1911) 104 L.T. 149]. This is so because under the doctrine of Daniels v. Davison (1809) 16 Ves. 249, the subsequent mortgagee is affected with notice of the interest which the tenant had in the land see in this connection Lord Ashburton v. Nocton (1915) 1 Ch. 274. In view of these principles, I must come to the conclusion that the case referred to above is not binding upon the plaintiff and that the payment of rent in advance is likewise not binding on the plaintiff.

5. The result, therefore, is that the plaintiff is entitled to judgment for Rs. 3,150 loss the sum which the defendant firm have paid on account of owner's share of the municipal rates and taxes. The defendant firm is legally entitled to credit only for the payments made by them on account of the owner's share of the municipal rates and taxes and for nothing else, but as the plaintiff has chosen to state before me. that he is willing to allow to the defendant firm credit for payments made for the owners, as well as the occupiers' share of the rates and taxes, the decree will be for a sum of Rs. 3,150 less the sum of Rs. 816-14 mentioned in para. 3 of the written statements, i.e., Rs. 2,333-2 with costs on Scale No. 2: and interest on judgment-debt at 6 per cent. until realization.


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