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Cassim Ahmed Molla Vs. Eusuf Haji Ajam Pepardi and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in34Ind.Cas.221
AppellantCassim Ahmed Molla
RespondentEusuf Haji Ajam Pepardi and anr.
Cases ReferredRhodes v. Robinson
Excerpt:
receivers, joint, rights and duties of - one joint receiver, whether can give notice to quit tenancy on behalf of all--notice to quit, validity of--ratification--contract act (ix of 1872), section 200. - .....estate, and it is to be noted that in the appointment it is stated ' that they are appointed joint receivers.'3. the first question which requires attention is, whether the notice which was in fact given was given by both the receivers.4. the notice itself was dated the 26th of march 1915, and was sent by the attorneys : on the face of it, it was a notice on behalf of both the receivers, but it appears from the evidence that at the time that the notice was given one of the receivers, eusuf haji ajam pepardi, was not in calcutta, and had not been in calcutta since the 1st of march, because his own evidence is to the effect that he left calcutta about the 1st of march and did not return till some considerable time afterwards, at all events after the 26th of march, it is material to.....
Judgment:

Lancelot Sanderson, C.J.

1. This is an appeal of the defendant from the judgment of Mr. Justice Greaves in which he gave judgment for the plaintiffs, and the first question which arises is stated in this way: whether the notice of ejectment was given by both Receivers, and if not, whether such notice is valid?

2. The plaintiffs were Receivers appointed by this Court for the purpose of managing a particular estate, and it is to be noted that in the appointment it is stated ' that they are appointed joint Receivers.'

3. The first question which requires attention is, whether the notice which was in fact given was given by both the Receivers.

4. The notice itself was dated the 26th of March 1915, and was sent by the attorneys : on the face of it, it was a notice on behalf of both the Receivers, but it appears from the evidence that at the time that the notice was given one of the Receivers, Eusuf Haji Ajam Pepardi, was not in Calcutta, and had not been in Calcutta since the 1st of March, because his own evidence is to the effect that he left Calcutta about the 1st of March and did not return till some considerable time afterwards, at all events after the 26th of March, It is material to observe what was the state of affairs when that Receiver, Mr. Eusuf, left Calcutta. At that time there was an applicant for the premises named Siddick, whereas the defendant Cassim Ahmed Molla was the existing tenant who had been in the premises for a considerable time. Now, as I understand the evidence, the position at the time Mr. Eusuf left Calcutta was this, that it was arranged that the higher offer should be accepted. Siddick had made a certain offer, and it was not certain whether the defendant, the existing tenant, would offer as much or more. The matter was undecided at the time Mr. Eusuf left Calcutta.

5. Now what happened afterwards? This is shown by the letters themselves which are set out in the paper-book. Apparently, almost immediately after Mr. Eusuf had left Calcutta, there was correspondence passing, and the defendant wrote on the 4th of March asking the Receivers to allow him a little more time as his master was away in his country. The answer which was sent on the same day was to this effect: 'In reply to your letter dated to-day we regret to state that we cannot postpone the meeting for you now, as it was already settled in the last meeting. So you will send us your last written offer on the 5th instant before 3 P. M., if you desire to hire the same for the further period; otherwise we will comply with the offer of another, which please note.' I have no doubt whatever that another' was Siddick. On the 5th of March, the defendant made his offer which was in these terms: ''Hereby I beg to inform you that I accepting the offer on terms agreed by Siddick Hossein,Esq., in respect of the above premises but with less Rs. 17-8 on account of your old tenant as anticipated by Receivers in meeting. I shall thank you to confirm the same and oblige.' I understand that to mean that he knew what the offer which Siddick had made was and that he was then in that letter making a similar offer except that he desired a reduction of Rs. 17-8 a month, and he asked for that reduction by reason of the fact that he had been a tenant of these premises for a considerable time. That apparently was not accepted by the Receiver who was in Calcutta, but on the contrary he wrote the next day and said, We hereby give you notice to vacate the above premises (i. e., 135, Lower Chitpore Road) which is at present in your tenancy on or before the 31st March 1915 as it is already let to the other person. If you will fail to vacate and give us the possession of the same on 31st March 1915 we will hold you responsible for difference in rent and any other loss we shall have to undergo, which please note,' so that the Receiver who was in Calcutta did not lose much time in making up his mind upon the receipt of the letter which the defendant had written on the 5th of March, Now, I am of opinion that upon that evidence it is clear that the letter which was sent on the 26th of March by the Solicitors was not sent on behalf of both Receivers; there is no evidence to show that between the 6th of March and the 26th of March any communication took place between the one Receiver and the other: and, as was pointed out by Mr. Justice Mookerjee yesterday, if, as a matter of fact, Mr. Eusuf had been consulted before the notice of ejectment was sent by his joint Receiver who was in Calcutta, nothing would have been easier than for him to have said so in his evidence and all the evidence which is given at page 10 would have been absolutely unnecessary. Therefore, on the first point I am of opinion that the letter or notice was not sent on behalf of both Receivers, and in that respect the conclusion at which I have arrived, I think, is in agreement with that of the learned Judge in the Court below. But the learned Judge goes on to say on the second branch of the first question, viz., and if not, whether the notice is valid,' that it was valid, because he says: 'In my opinion the answer that was given in cross-examination by Eusuf Haji Ajam Pepardi, where he says that although there was no definite arrangement with his co-Receiver yet if one was away the other attended to the business and that this was their custom although there was no arrangement to that effect, makes it clear that the notice was in fact good.' Upon that point I regret to say that I am unable to agree with the learned Judge. Certain cases were cited to us yesterday which related to cases where the lessors were joint tenants In my judgment, those cases have no application to this case at all, and I will shortly state the reason. In this case the plaintiffs were appointed by the Court joint Receivers and I pause to consider what the object of the Court was in appointing two gentlemen joint-Receivers. As I understand, it was that the estate might have the benefit of the opinion of both these gentlemen--the benefit of their experience and their judgment--and ' it was the duty of each of them to apply his mind to the different matters which might arise for decision in the course of the management of the estate. It was not open to the Receivers to carry on the Receivership in the way, as is suggested, it was done in this case according to the answer of the witness, who says: I was going to submit--when Haji was not here I would attend business and when I was not here he would attend. There was no definite arrangement. That has been the practice always--that one acts when the other was away.' The ground op which I base my judgment is that he had no business whatever to delegate the duty which was imposed upon him by the Court, in the way suggested by him, it was his duty to do it. Therefore, the notice was not given, as I have already held, on behalf of both Receivers and it was not valid for the reasons I have mentioned.

6. I just refer to two other matters. It was argued that even though the notice was not a valid notice at the time it was given, as it was not given on behalf of both Receivers,still it was ratified by the Receiver who was out of Calcutta. In my judgment, that argument is not a good one. Section 200 of the Indian Contract Act provides that An act done by one person on behalf of another, without such other person's authority, which, if done with authority, would have the effect of subjecting a third person to damages, or of terminating any right or interest of a third person, cannot, by ratification, be made to have such effect.' That section, I think, applies to this case; and, therefore, even if Eusuf, the Receiver who was out of Calcutta at the time the notice of ejectment was given, has ratified it, still the notice was given without his authority, and it was one which would have the effect of terminating the interest of the defendant and consequently it is within the section and such ratification, even if made, did not make the notice valid. I wish further to say that it seems to me that if a Receivership were to be carried on in the way in which apparently Mr. Eusuf and his joint Receiver thought it right to do in this case, most undesirable results might occur, and I do not think we could have a very much better instance than the one before us. The learned Judge has expressed the opinion that he thinks the present tenant of the premises, the defendant, has not been reasonably treated, especially having regard to the fact that the tenant whom one of the Receivers proposed to accept in his place was an undischarged bankrupt. And, in my opinion, when the existing tenant said that he was quite prepared to pay the same rent that the applicant for the tenancy was willing to pay, less Rs. 17-8 a month, that was a matter which ought to have been submitted to the judgment not only of one Receiver but of both Receivers. I think it is quite possible that if it had been submitted to the Receiver who was out of Calcutta at the time, this difficulty would never have arisen.

7. For these reasons I think this appeal should be allowed, and the decree which was made in the Court below reversed, with costs of this appeal and in the Court below.

Woodroffe, J.

8. In my opinion the notice to quit served on the defendant was not a valid notice and I agree that the appeal should be allowed as stated in the judgment of the learned Chief Justice.

Mookerjee, J.

9. The facts material for the determination of the questions raised before us lie in a narrow compass, and may be briefly recapitulated. On the 1st August 1913, the respondents, Eusuf Haji Ajam Pepardi and Haji Mahomed Jackaria, were appointed joint Receivers in respect of the estate of Musaji Ahmed Saleji. On the 26th March 1915, their Solicitor gave a notice to the defendant, who was the tenant of a house comprised in the estate, that he must vacate the premises on the 30th April ]915. As the defendant did not act upon this notice to quit, the two Receivers instituted the present suit on the 1st June 1915, with a view to eject him. He resisted the claim on the ground, amongst others, that his tenancy had not been validly terminated by a legal notice to quit. Mr. Justice Greaves overruled this contention and made a decree for ejectment in favour of the plaintiffs. On the present appeal, that decree has been assailed oh the ground that there was no legal notice to quit sufficient to terminate the tenancy. This raises two questions, namely, first, was the notice in fact given on behalf of both the Receivers, and, secondly, if it was not so given, was it sufficient to terminate the tenancy.

10. As regards the first question, I feel no doubt upon the evidence that the notice, though it purports to be on behalf of both the Receivers, was in reality given by only one of them. One of the two Receivers, Pepardi, had left Calcutta on the 1st March 1915. There is no evidence to show that before he left he and his co-Receiver had decided that a notice to quit should be served on the defendant. The negotiations which followed, show plainly that the matter was still open for consideration; and there is no room for doubt that the notice was given at the instance of Jackaria alone, who was in Calcutta, while his co-Receiver was away in Surat in the Presidency of Bombay.

11. As regards the second question, namely, whether a notice given by one of two joint Receivers, on behalf of both, is a valid notice and is sufficient to terminate the tenancy, the answer depends upon the true legal position of joint Receivers. When two persons are appointed joint Receivers, unless there is a direction or an indication to the contrary in the order of appointment, the intention of the Court must be deemed to be that they, as officers of the Court, should meet and discuss together the questions which come before them for determination in the course of the management of the estate, and that in all matters which require the exercise of judgment and are not purely ministerial, the action taken should be the result of their united deliberation. The very object of appointment of joint Receivers would be defeated, if one were held competent to delegate his functions to the other, as appears to have been done in the case before us. Pepardi frankly admitted in the course of his deposition that when Jackaria was not in Calcutta, he himself would attend to business, and when he was away, Jackaria would attend, and added that one acts when the other is away;' obviously, this was radically wrong. On the view I take of the true legal position of joint Receivers, it is plain that a tenancy held under them, if terminable, must be determined by a notice to quit given by them jointly.

12. On behalf of the respondents, reliance, however, has been placed on a familiar class of decisions, which show that where there is a demise by joint tenants, one may give notice on behalf of all : Doe d. Aslin v. Summersett (1830) 1 B. & Ad. 135 : 8 L.J. (o.s.) K.B. 369 : 109 E.R. 738 : Doe d. Kindersley v. Hughes (1840) 7 M. & W. 139 : 10 L.J. Ex. 185 : 151 E.R. 711 : 56 R.R. 669 : Alford v. Vickery (1842) Car. & Mar. 280 : 66 R.R. 867. This doctrine is confined in England to a Common Law notice to suit, and does not, in my opinion, apply to the case of joint Receivers. As explained by Lord Ellenborough, C.J. in Right d. Fisher v. Cuthell (1804) 5 East. 491 : 7 R.R. 752 : 2 Marsh 83 : 5 Esp. 149 : 102 E.R. 1158, the principle of these decisions is that every act done by one joint tenant for the benefit of himself and his companion shall bind the other, but not those which prejudice the other. To the same effect are the observations of Lord Tenterden in Doe d. Aslin v. Summersett (1830) 1 B. & Ad. 135 : 8 L.J. (o.s.) K.B. 369 : 109 E.R. 738 and of Baron Parke in Doe d. Kindersley v. Hughes (1840) 7 M. & W. 139 : 10 L.J. Ex. 185 : 151 E.R. 711 : 56 R.R. 669, namely, that a notice to quit given by one of several joint tenants, purporting to be given on behalf of them all, is good for all, because the tenant holds the premises only so long as he and they shall all agree. This exposition makes it manifest that the principle applicable to joint tenants does not govern cases of joint Receivers Consequently, the notice to quit in the case before us was bad in its inception.

13. In this view, the respondents have argued, as a last resort, that as the two Receivers have joined in the institution of this suit on the basis that the notice was validly given on behalf of both of them, Pepardi must be deemed to have ratified the action of Jackaria so that no question can arise as to the legality of the notice. In my opinion, there is no force in this contention, which is completely answered by Section 200 of the Indian Contract Act and Illustration (b) appended thereto 'A holds a lease from B, terminable on three months' notice. 0, an unauthorised person, gives notice of termination to A. The notice cannot be ratified by B, so as to be binding on A.' This embodies the principle that rights of property cannot be changed retrospectively by ratification of an act inoperative at the time, or, as has sometimes been said to make an act rightful which otherwise would be wrongful, must be at a time when the principal could still have lawfully done it himself. This is in accord with the balance of authority in English Law [Right d. F sher v. Cuthell (1804) 5 East. 491 : 7 R.R. 752 : 2 Marsh 83 : 5 Esp. 149 : 102 E.R. 1158 : Doe, d. Mann v. Walters (1830) 10 B. & C. 626 : 5 M. & Ry. 357 : 8 L.J. (o.s.) K.B. 297 : 34 R.R. 522 : 109 E.R. 583 : Doe d Lyster v. Goldwin (1841) 2 Q.B. 143 : 1 G. & D. 463 : 10 L.J.Q.B. 275 : 114 E.R. 57 : 57 R.R. 621 : Seaward v. Drew 1898) 67 L.J.Q.B. 322 : 78 L.T. 19 : 14 T.L.R. 200], though expressions apparently capable of interpretation in support of the contrary view may be found in isolated cases: Goodtitle d. King v. Woodward (1820) 3 B. & Ald. 689 : 106 E.R. 813 : Doe d. Rhodes v. Robinson (1837) 3 Bing. (N.C.) 677 : 4 Scott. 396 : 3 Hodges. 84 : 6 L.J.C.P. 235 : 1 Jur. 356 : 132 E.R. 571 : 43 R.R. 758. It is, I think incontestable that if the notice is given by an unauthorised person, a subsequent ratification will not make it effectual, since the notice must be one which is in fact binding on the landlord when it is served

14. The position in this case, consequently, is that there was no valid notice to quit and the alleged ratification is of no avail to the plaintiffs, so that the tenancy of the defendant still subsists and the claim for ejectment is premature. The result is that this appeal must be allowed, the decree of Greaves, J., reversed, and the suit dismissed with costs throughout.


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