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Guru Prosanna Bhattacharjee Vs. Madhusudan Chowdhury - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1921Cal574,64Ind.Cas.824
AppellantGuru Prosanna Bhattacharjee
RespondentMadhusudan Chowdhury
Cases ReferredSecretary of State v. Forbes
Excerpt:
lease - fixed term--renewal clause--terms on which, renewal to he taken--construction of document--evidence of user--evidence act (i of 1872), section 98--ambiguity. - .....land in favour of the plaintiff on the 5th, january 1901. mr. gupta has contended that as the term dosra is really ambiguous, evidence is admissible to show its true meaning as used in the contract under consideration, and in support of this contention, he has relied upon a decision of the judicial committee in watcham v. attorney-general on behalf of the government of the east africa protectorate (1919) a.c. 533 at pp. 537, 540 : 87 l.j.p. c. 150 : 34 t.l.r. 481 : 120 l.t. 258. lord atkinson stated in that case the principle that when the instrument contains ambiguity, evidence of user under it pay be given in order to show the sense in which the parties used the language and their intention in executing the instrument, whether the ambiguity be patent or latent. we need not discuss.....
Judgment:

1. This is an appeal by the plaintiff in an action in ejectment. The defendant executed a kabuliyat in favour of the plaintiff on the 11th May 1908 for a term of nine years to expire on the 13th April 1917. As the defendant did not give up . the land on the termination of the tenancy, the plaintiff instituted the present suit on the 15th June 1917 after service of notice to quit. The defendant pleaded that the kabuliyat contained what was in essence a renewal clause for nine years, that be had offered to accept a new tenancy, but the plaintiff had wrongfully refused and that consequently he was entitled to remain in occupation for a further term of nine years as if a new tenancy had been created in his favour. He also urged that the notice served was inadequate. It is plain that no question of notice arises, as the suit has bean brought on the termination of the tenancy ; if in law the tenancy has terminal ed, the plaintiff is entitled to eject the defendant, without service of notice to quit. Consequently the only question for consideration is whether, the provision in the lease operated as a renewal clause and entitled the defendant to continue in occupation for a second term of nine years. This question has been answered against the plaintiff by both the Courts below, On the present appeal it has been argued that the kabuliyat has been misinterpreted by the Courts below and that in substance there was no renewal clause of the scope alleged by the defendant.

2. The kabuliyat states that after the termination of the tenancy the defendant would make a dosra bandobasta. The Courts below have taken this to mean a fresh Battlement on the same terms as the first Settlement, Mr. Gupta has contended that the expression dosra a bandobaata is really ambiguous, that it means in essence a second Settlement and that such. Settlement need not be on the same terms as the previous Settlement but may be a different Settlement. In support of this argument he has invited our attention to two kabuliyats, one executed by the vendor of the defendant in favour of the plaintiff on the 19th April 1903 and another executed by a previous tenant of the disputed land in favour of the plaintiff on the 5th, January 1901. Mr. Gupta has contended that as the term dosra is really ambiguous, evidence is admissible to show its true meaning as used in the contract under consideration, and in support of this contention, he has relied upon a decision of the Judicial Committee in Watcham v. Attorney-General on behalf of the Government of the East Africa Protectorate (1919) A.C. 533 at pp. 537, 540 : 87 L.J.P. C. 150 : 34 T.L.R. 481 : 120 L.T. 258. Lord Atkinson stated in that case the principle that when the instrument contains ambiguity, evidence of user under it pay be given in order to show the sense in which the parties used the language and their intention in executing the instrument, whether the ambiguity be patent or latent. We need not discuss whether one deed should be construed with reference to another unless the two form part of the same transaction, Bhagwat Buksh Roy v. Sheo Pershad Sahu 21 Ind. Cas. 481 : 18 C.L.J. 277 : 18 C.W.N. 297, Kamaleshwari Pershad Singh v. Kanai Singh (Ramhari Singh) 20 Ind. Cas. 171 : 19 C.L.J. 348 : 17 C.W.N. 1159, Patiram Banerjee v. Kankinarra Co. 31 Ind. Cas. 607 : 42 C. 1050 : 19 C.W.N. 623 and Smith v. Chadwick (1882) 20 Ch. D. 27 : 51 L.J. Ch. 597 : 49 L.T. 702 : 30 W.R. 661; but let us assume that evidence is admissible to explain the meaning of the term dosra and that the two kabuliyats mentioned ace for this purpose relevant evidence. In each of these documents, the term dosra occurs twice. In one place, it is stated that after the expiry of the term, the tenant would take dosra bandobasta, from the landlord. In another plate, it is stated that if the tenant failed to take a dosra bandobasta, then the landlord would be competent to re-enter on the land and realize rent by granting Settlement to dosra proja, It has been contended that when the term dosra is applied to a tenant, it means a new tenant who need not necessarily hold on the same terms as the previous tenant. This may be conceded and this may show that the term dosra is used in more than one sense according to the context. The question for consideration before us is what is the implication of the term dosra when used in relation to a second Settlement. Mr. Sen has contended on behalf of the respondent that in answering this question, we cannot overlook that if the argument of the appellant prevails, the result will be to nullify the clause which was inserted in the contract plainly for the benefit of the tenant. If dosra bandobasta might be a second Settlement on such terms as might be dictated by the landlord, the latter might destroy the protection afforded to the tenant by imposing terms so onerous and exacting that the tenant could not possibly accept them. We are of opinion that this aspect of the matter must be borne in mind when the contract before us is construed, and we agree with the Courts below that the intention of the parties was that the second Settlement should be made on the same terms as the previous tenancy. Consequently the rule enunciated in Lani Mia v. Muhammad Easin Mia 33 Ind. Cas. 448 : 20 C.W.N. 948 at p. 950 on the authority of the decision in Secretary of State v. Forbes 17 Ind. Cas. 180 : 16 C.L.J. 217 becomes applicable, namely, that where there is a covenant for renewal, if the option does not state the terms of the renewal, the new lease would be for the same period and on the same terms as the original lease in respect of all the essential conditions thereof except as to the covenant for renewal itself. We hold accordingly that the covenant in this case was a true covenant for renewal on the same terms as before.

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


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