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Mati Lal Karnani Vs. Darjeeling Municipality - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in18Ind.Cas.844
AppellantMati Lal Karnani
RespondentDarjeeling Municipality
Cases ReferredPartab Narain Deo v. Harihar Singh
Excerpt:
landlord and tenant - absence of agreement--presumption of law--existence of tenancy--lease for 15 years--lease not registered--lessee continuing in occupation upon payment of rent--position of lessee--ejectment--notice--transfer of property act (iv of 1882), sections 107, 110 and 116--'agreement to the contrary,' meaning of--agreement to hold over from year to year to be created by registered instrument--rent, acceptance of, for one quarter--if implies promise by landlord that tenant should stay for whole year. - .....of 15 years, nor, was there a lease in his favour from year to year, or even a lease reserving a yearly rent, because leases of this description can be validly created under section 107 of the transfer of property act only by a registered instrument. the position of abinash chandra neogi accordingly was not higher than that of a lessee for one year, who held over at the end of the year; his rights, therefore, must be tested by a reference to the provisions of section 116 of the transfer of property act. that section provides as follows: 'if a lessee of property remains in possession thereof after the determination of the lease granted to him and the lessor accepts rent from the lessee or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to.....
Judgment:

1. This is an appeal on behalf of the defendant in an action in ejectment. The origin of the disputed tenancy has not been ascertained with absolute certainty. The case for the plaintiff is that the tenancy commenced about the year 1884, whereas the allegation of the defendant is that it is traceable to a period even earlier than 1882. The defendant, on the 16th June 1902, purchased the right, title and interest of one Abinas Chandra Neogi in the disputed plots, who held as a tenant under the Darjeeling Municipality. Abinas Chandra Neogi had, about the year 1883, purchased the property from a shoe-maker, whose occupation, it has been found, commenced some years prior to 1882. On this basis, it has been argued by the defendant that the origin of the tenancy must be traced to a period anterior to 1882. There is no substance, however, in this contention. The nature of the interest of the shoe-maker in one of the two disputed plots is unknown. It has not been proved even that he held as a tenant under the Municipality. It has not been shown that he had at any time paid rent in respect of this land. But it has been argued by the appellant that the presumption of law is that the shoe-maker held under an agreement of tenancy from the Municipality; and in support of this proposition, reliance has been placed upon the cases of Morphett v. Jones (1818) 1 Sw. 172 at p. 181; 1 Wils. Ch. 100; 18 R.R. 48; Britain v. Rossiter (1879) 11 Q.B.D. 123 at p. 131; 48 L.J. Ex. 362; 40 L.T. 240; 27 W.R. 482 and Maddison v. Alderson (1883) 8 App. Cas. 467 at p. 479; 52 L.J.Q.B. 737; 49 L.T. 303; 31 W.R. 820; 47 J.P. 821. These cases are plainly of no assistance to the appellant. In the first of these cases, Sir Thomas Plumer, Master of the Rolls, observed as follows: 'A party, who has permitted another to perform acts on the faith of an agreement, shall not insist that the agreement is bad and that he is entitled to treat those acts as if it had never existed. That is the principle, bat the acts must be referable to the contract. Between landlord and tenant, when the tenant is in possession at the date of the agreement and only continues in possession, it is properly observed that in many cases that continuance amounts to nothing; but admission into possession, having unequivocal reference to contract, has always been regarded an act of part performance. The acknowledged possession of a stranger in the land of another is not explicable, except on the supposition of an agreement and has, therefore, constantly been received as evidence of an antecedent contract, and as sufficient to authorise an inquiry into the terms, the Court regarding what has been done as a consequence of contract or tenure.' In the case before us, there is no evidence to show that there was any agreement at all between the shoe-maker and the Municipality; much less is there evidence to show that the agreement, if any, was one in the nature of a contract of tenancy. The observations in the case of Morphett v. Jones (1818) 1 Sw. 172 at p. 181; 1 Wils. Ch. 100; 18 R.R. 48 to which, we have just referred, were quoted with approval by Lord Selborne in Maddison v. Alderson (1883) 8 App. Cas. 467 at p. 479; 52 L.J.Q.B. 737; 49 L.T. 303; 31 W.R. 820; 47 J.P. 821 and the same doctrine was enunciated in similar language in Britain v. Rossiter (1879) 11 Q.B.D. 123 at p. 131; 48 L.J. Ex. 362; 40 L.T. 240; 27 W.R. 482. Those, however, were cases of part performance of contracts, and the doctrine can obviously have no application to a case like the present where there is no proof of any contract at all between the parties. Under these circumstances, we are unable to hold that the shoe-maker held under a contract of tenancy and that Abinas Chandra Neogi by his purchase from the shoe-maker acquired the status of a tenant under the Municipality. The position then is that the tenancy commenced about the year 1883 and the rights and liabilities of the parties must accordingly be determined with reference to the provisions of the Transfer of Property Act. Now, it has been found on the evidence that the Municipality and Abinash Chandra Neogi entered into an agreement for a lease for 15 years. The document was executed but was not registered. Consequently, the intended tenancy for 15 years never came into operation. Abinash Chandra Neogi, however, continued in occupation upon payment of rent to the Municipality. Subsequently, he accepted a tenancy in respect of the second parcel, but no document was executed in respect thereof. Later on, after the expiry of more than 15 years from the commencement of the tenancy, there was an agreement for a renewal of the lease for a term of 10 years; but no document was executed or registered. The position of Abinash Chandra Neogi and of the present defendant as purchaser of his right, title and interest has, consequently, been that each has paid rent to the Municipality in respect of the two parcels of land and continued in occupation. What then is the effect of such payment upon their rights and liabilities? It is obvious that Abinash Chandra Neogi was not in law a lessee for a term of 15 years, because Section 107 of the Transfer of Property Act provides that a lease of immoveable property for any term exceeding one year can be made only by a registered instrument. There was, consequently, no lease for a term exceeding one year. It is not necessary to discuss what the rights and liabilities of the parties might have been, if during the term of 15 years a suit for specific performance of the contract had been brought by either party against the other, or if in an action in ejectment by the lessor, the lessee had taken the defence that in equity, his position was precisely the same as that of a tenant in whose favour the necessary documents had been executed and registered. It is possible that, in view of the principle laid down in the cases of Bibi Jawahir Kumari v. Chatterput Singh 2 C.L.J. 343; Singheeram Poddar v. Bhagbat Chunder 11 C.L.J. 543; 6 Ind. Cas. 632; Sarat Chandra v. Sham Chand 16 C.L.J. 71; 39 C. 663; 14 Ind. Cas. 701 and Walsh v. Lonsdale (1882) 21 Ch. D. 9; 52 L.J. Ch. 2; 46 L.T. 858; 31 W.R. 109 if such an event had happened, the parties might have successfully claimed the status of a lessor and a lessee bound by a lease for a term of 15 years. The contingency, however, never happened, and, the intended term of 15 years expired long ago. The position is that there was no valid lease in Savour of Abinash Chandra Neogi for a term of 15 years, nor, was there a lease in his favour from year to year, or even a lease reserving a yearly rent, because leases of this description can be validly created under Section 107 of the Transfer of Property Act only by a registered instrument. The position of Abinash Chandra Neogi accordingly was not higher than that of a lessee for one year, who held over at the end of the year; his rights, therefore, must be tested by a reference to the provisions of Section 116 of the Transfer of Property Act. That section provides as follows: 'If a lessee of property remains in possession thereof after the determination of the lease granted to him and the lessor accepts rent from the lessee or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased as specified in Section 106.' It is worthy of note that the lease is renewed, not in accordance with the terms of the original grant but in accordance with the purpose for which the grant had been made As was pointed out by this Court in the case of Troilokya Nath Roy v. Sarat Chandra Benerjee 82 C. 123. in circumstances similar to those of the present case, the lease must be taken to have been renewed from month to month. In that case, there was a tenancy for a term of three years at an annual rent of Rs. 54-8. After the expiry of the term, the tenant held over, and the question arose as to the length of notice to which the lessee was entitled before the landlord could sue to eject him. It was argued on behalf of the tenant that he held over as a tenant from year to year and was entitled to a six months' notice to quit; that contention found favour with Mr. Justice Mitra as in conformity with the rules of the English Law on the subject. Upon appeal, that view however, was negatived, and it was ruled that the tenant held over from month to month. It was not argued in that case that the circumstance that the rent was annually payable might indicate an agreement to the contrary within the meaning of Section 110 of the Transfer of Property Act; it is clear, as was pointed by Sir Francis Maclean, C.J., that an agreement to the contrary must mean an agreement as to the terms of the holding over; we have to consider, therefore, whether in the case before us, there was an agreement to the contrary relating to the terms of the holding over. It may be conceded that the agreement in this behalf need not be express; it may obviously be an implied agreement. The tenant in the present case does not allege an express agreement to the contrary. But he relies upon an implied agreement to the contrary, which he contends must be inferred from the circumstance that the rent is payable annually. The question thus arises, whether that fact is conclusive proof of an implied agreement to the contrary. Now the implied agreement, if there was any, must have been an agreement, that the tenant should hold over either from year to year or for one year only. But an agreement that the tenant should hold over from year to year would, is essence, be an agreement to grant a lease from year to year, and, as pointed out; by Mr. Justice Woodroffe in the case of Debendra Nath Bhowmik v. Syama Prosanna Bhowmik 11 C.W.N. 1124 at p. 1126 a lease from year to year must itself be created by a written and registered instrument. Consequently there is no room for an implied agreement that the tenant was to hold over from year to year. The only other alternative left is that there was an agreement, that the tenant should hold over for one year. Reliance in this connection has been placed upon the circumstances that rent was accepted by the Municipality from the defendant for the first quarter of the official year 1910-11; and it has been argued that acceptance of such rent was equivalent to an agreement that the tenant was to stay for at least one year. We are unable togive effect to this contention. There is no proof that the rent which was accepted was deemed an aliquot part of an integral rent for the whole year. The actual receipt granted by the Municipality has not been produced, but the prescribed form of the receipt shows that the rent has never been regarded as paid quarterly in respect of an annual liability. Consequently, it is impossible to hold that the acceptance of rent for a quarter implied a promise by the landlord to the tenant that the latter would be allowed to stay for the whole year. The position thus is that the tenant held over from month to month and no agreement to the contrary has been proved; consequently, the tenancy was validly terminated by the notice to quit. Reliance finally has been placed upon the decision of Kishori Mohun Roy v. Nund Kumar Ghosal 24 C. 720 to show that an annual tenancy must be terminated by a six months notice to quit; but the case relied upon was not under the Transfer of Property Act, as was expressly stated in the judgment, and the later decision in Partab Narain Deo v. Harihar Singh 36 C. 927; 13 C.W.N. 949; 2 Ind. Cas. 656 shows that the tenant is entitled only to a reasonable notice to quit. As we have already shown, the tenant held over from month to month and could not claim more than fifteen days' notice to quit.

2. The result is that the decree of the District Judge is affirmed and this appeal dismissed with costs.


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