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Secy. of State Vs. Madhu Sudan Mukherjee and ors. - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1933Cal260
AppellantSecy. of State
RespondentMadhu Sudan Mukherjee and ors.
Cases ReferredHarihar Banerji v. Ram Shasi Roy
- .....turn, sold it to defendant in 1906. up to 31st march 1914, this defendant held under successive yearly leases. for the next three years he held under the annual licenses. notices, as in the other cases, were given to him. a further notice was given to him on 30th september 1918, calling upon him to vacate by the last day of october 1918. the suits, it may be mentioned here, were instituted on 3rd may 1922, and have been dismissed on the ground that the notices given were not sufficient.3. the appeals, in our opinion, should be dismissed, though not exactly for the reasons which the subordinate judge has given. in 1914 when the new forms of licenses were introduced the defendants objected to accept them. the subordinate judge held upon the oral evidence and also a letter (ex. d) that.....

1. These appeals arise out of certain suits which were instituted by the Secretary of State for India in Council for ejecting the defendants on service of notices to quit. The suits having been dismissed by the Court below, the plaintiff, the Secretary of State for India in Council, has preferred these appeals. Except as regards one of the suits which has given rise to F.A. No. 277 of 1928 the facts of the cases are very similar. In each of these other suits the facts are the following: The defendants were in possession of their respective plots for a long series of years under annual leases. In 1914 the plaintiff introduced a form of lease designating it as a license to receive which the defendants objected but they were told that the form would make no difference and they would be allowed to hold the plots as they did before under the leases. They held under the licenses the last of which expired on 31st March 1917. On 1st June 1917, the plaintiff gave them notices calling upon them to vacate by 31st July 1917.

2. In the suit in which the facts are special the original tenant was one Mr. Heather who came into possession under an agreement dated 1893. He transferred his holding to one Mrs. Claudius in 1900, and she, in her turn, sold it to defendant in 1906. Up to 31st March 1914, this defendant held under successive yearly leases. For the next three years he held under the annual licenses. Notices, as in the other cases, were given to him. A further notice was given to him on 30th September 1918, calling upon him to vacate by the last day of October 1918. The suits, it may be mentioned here, were instituted on 3rd May 1922, and have been dismissed on the ground that the notices given were not sufficient.

3. The appeals, in our opinion, should be dismissed, though not exactly for the reasons which the Subordinate Judge has given. In 1914 when the new forms of licenses were introduced the defendants objected to accept them. The Subordinate Judge held upon the oral evidence and also a letter (Ex. D) that the defendants were induced to sign the new license forms on the representation of the Agent and the Chief Engineer of the Railway that their position under the old leases would not be disturbed by their signing the new forms of licenses, and that therefore the licenses, obtained as they were under a misrepresentation, were not binding on them. They remained in occupation and continued to pay their rents up to 31st March 1917 after which no rent was accepted from them. On these facts the Subordinate Judge held that the relationship between the parties was as of tenants holding over on the expiry of yearly leases, and so Sections 106 and 116, T.P. Act, being applicable, the tenancies having originally been created for purposes of residence and for holding shops, the defendants were entitled to 15 days' notice ending with a month of the tenancies. He was of opinion however that the notices that were given were not such as are required by Section 106, T.P. Act.

4. It has been contended before us in the first place that no notices were necessary because at the end of each year of the licenses and till another license was issued the position of the defendants was that of mere trespassers. Now the important provisions in the lease bearing upon this question are that if the lessee desired to continue in occupation after the expiry of the twelve calendar months for which the lease was granted he would have to give 15 days' notice of such intention before the period of the lease expired (Cl. 9), that if no such notice is given or if such notice is given but the lessor is not willing to grant a fresh lease, the lessee shall vacate and deliver up possession (Cl. 10), and that if within the term the land is required for railway purposes the lessee will have to vacate on three months' notice (Cl. 11). There is also a clause (Cl. 12) in the nature of a penal clause that if the lessee is guilty of breach of any of the sanitary and conservancy rules, the railway will have the right to resume possession without any previous notice. In the license there is no provision as to notices at all, but it is provided that if on the expiry of the license the licensor is not willing to purchase the structures the licensees would be bound to remove them within two calendar months from the determination of the license (C1. 8).

5. Upon the evidence on which the Subordinate Judge has referred we think it is a fair view to take of the situation to hold that the defendants accepted the licenses on the understanding that their position as under the leases would not be affected. Their position therefore was as of persons who held under yearly leases but on the expiry of the terms thereof were holding over on payment of rent to the lessor. It may be observed here that the provision as to giving 15 days' notice of an intention to renew was never enforced in practice. If there was nothing else to be taken into consideration and if the Transfer of Property Act applied to the ease, the leases on their expiry would under Section 116 of the Act have to be regarded as being renewed from month to month, though rent was being paid per year, in view of the provisions of Section 106 of the Act. The word agreement' in the expression an agreement to the contrary' in Section 116 has been held to mean an agreement as to the terms of the holding over: see Troilokya Nath Roy v. Sarat Chandra Banerji (1905) 32 Cal 123 and Gohinda Chandra Saha v. Dwarka Nath AIR 1915 Cal 313. There having been no provision in the contracts between the parties what, if any, should be the notice in case the defendants were holding over, 15 days' notice ending with a month of the tenancy would be necessary and sufficient. It has been suggested on behalf of the respondents that the true position was that the defendants were holding under yearly leases coupled with an implied agreement that they would hold over from year to year and that therefore they were entitled to six months' notice. As has been pointed out in the case of Gobinda Chandra Saha v. Dwarka Nath AIR 1915 Cal 313, this is an ingenious attempt to substitute for a lease from year to year a tenancy for one year coupled with an agreement to renew it from year to year and such a lease would in effect be a lease from year to year, which in view of Section 107 cannot be created except by a registered instrument: see also Moti Lal v. Darjeeling Municipality (1913) 18 IC 844.

6. On the assumption that the Act applied and that there was nothing else to stand in the way, the next question would be as regards the sufficiency of the notices that were issued. The Subordinate Judge was of opinion that the notices such as they were in this case cannot be looked upon as notices for termination of the licenses under Section 106 of the Act and so were invalid. He is not very clear as to why he was of that opinion. On examining the notices carefully we find that the following two objections can conceivably be taken: (1) that the notices proceeded on the footing that the defendants were trespassers and not lessees or licensees whose leases or licenses were to be determined by the notices; and (2) that instead of 15 days they gave two months' time. Neither of these objections can be regarded as well founded. The giver of a notice is not bound to admit the person to whom it is given as a tenant; a notice is good notwithstanding that the addressee is described therein as a trespasser: Ram Charan v. Hari Charan (1908) 7 CLJ 107. Nor can it be reasonably contended that if two months' time is given where only 15 days' time is necessary, that invalidates the notice. After all, the requirements of S 106 are very few. Their Lordships of the Judicial Committee have observed in the case of Harihar Banerji v. Ram Shasi Roy AIR 1918 PC 102:

Notices to quit though not strictly accurate or consistent in the statements embodied in them, may still be good and effective in law; that the test of their sufficiency is not what they would mean to a stranger ignorant of all the facts and circumstances, touching the holding to which they purport to refer, but what they would mean to tenants presumably conversant with all those facts and circumstances; and further that they are to be construed not with a desire to find faults in them, which would render them defective, but to be considered ut res magis valeat quam pereat.

7. But there are two other difficulties in the plaintiff's way. It appears that after the notices were given fresh licenses were issued in favour of the defendants. These licenses on the face of them purport to run from the date of the agreement they embody, e. g., 23rd August 1917, 16th November 1917, 10th January 1918, and so on, all after the dates of the notices and the expiry of the period mentioned therein, and on the face of them they purport to enure for a period of one year. But we have been asked to take it that they were intended to be licenses for the year ending on this 31st March 1917, and that they were issued on the respective dates for the back periods, not having been timely issued for some reason or other. Of this however there is no evidence and the only materials which are pointed out in support of this explanation is that in Clause 6 of the licenses it is stipulated the licensee would pay the fees, etc., as from the 1st day of April 1916, and in a schedule the date of expiration of the license is given as 31st March 1917. Neither of these materials by themselves would, in our opinion, conclusively establish that the licenses were for the year which had already expired. The respondents, on the other hand, say that the date of expiry mentioned in the schedule means the date on which the previous license expired. What the real facts are it is not easy to determine. But these matters cannot be disposed of on mere suppositions; there must be evidence adduced by the plaintiff to show how and why and for what period these licenses came to be issued or what was the necessity for issuing them after the period itself was over and after notices to quit had already been served. The necessity for explaining these matters becomes all the greater, where, as here, the plaintiff waits for nearly five years after serving the notices to quit and takes no action in the meantime.

8. The other difficulty in the plaintiff's way is created by the contention which was put forward on his behalf in the Court below and was overruled in that Court, but has been repeated with great force and insistency in this Court. It has been urged that in view of the provisions of the Crown Grants Act (15 of 1895) the provisions of the Transfer of Property Act do not apply to Crown Grants. The Subordinate Judge has held that:

there being no special contract the Crown Grants Act would not apply and the relation between the parties should be governed by the provisions of the Transfer of Property Act.

9. The question is not free from difficulty, but we do not consider it necessary to decide it, because on the assumption that the plaintiff's contention is well founded the general law would apply. In no view of the case can it be said that the defendants were mere trespassers not entitled to notice. They were at least tenants by sufferance and so entitled to reasonable notice. Having regard to the fact that the defendants had permission under their leases to build structures on the land, and the leases' themselves provided for three months notice within the term, we should think that three months' notice would be fair and reasonable. In the above view of the matter we think we must hold that the suits were not maintainable for want of reasonable notices to quit. Should the plaintiff desire to eject the defendants notices suggested above must be given.

10. The Subordinate Judge has dealt with a few other points and has recorded his conclusions thereon. As regards the question whether the notices that were issued were properly served his finding was in favour of the plaintiff. It is not necessary to go into this question, but we must say that as regards the notices meant for one of the defendants there is a considerable doubt. On the question whether the defendants are entitled to the prices of the structures which he has decided in favour of the defendants, his conclusion as regards the structures which have been on the land of the defendant Madhu Sudan Mookerjee since the time of Mr. Heather and Mrs. Claudius has been challenged before us. We are of opinion that the facts proved in the case though they do not lead to an inference of any permanent right on the part of the defendant nor create any estoppel against the plaintiff are sufficient to lead to the inference that the said structures were erected and allowed to continue with the tacit approval of the railway authorities. If this be the finding, as in our judgment it should be, then he is entitled to compensation under Clause 4 of Mr. Heather's lease (Ex. A). We accordingly hold that the plaintiff's contention, ought not to succeed. The result is that the appeals are dismissed with costs to the respondents, hearing fee being assessed at five gold mohurs in Appeal No. 277 and at two gold mohurs in each of the other appeals, except those in which there has been no appearance on behalf of the respondents or in which the Deputy Registrar's costs have already been paid.

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