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Johar Mull Bhutra and ors. Vs. Bhupendra Nath Basu and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in67Ind.Cas.108
AppellantJohar Mull Bhutra and ors.
RespondentBhupendra Nath Basu and ors.
Cases ReferredNeale v. Mackenzie
Excerpt:
specific performance, suit for, against vendor of real estate - lis pendens--landlord and tenant--zemindar, power of, to interpose intermediate holder between himself and his tenant--power of intermediate holder to realise rent, from the tenant. - .....423. in that case, sir john stanley, chief justice, held that where a lessor executes two concurrent leases of the same property, that is to say, two leases in which the term of the second commences before the term of the first has expired, the second lessee is to be taken as the assignee of the lessor's interest daring the concurrent portion of the terms, and the lessor, after the execution of the second lease, tan recover rent only from the second and not from the first lessee. the chief justice referred to the decision of baron parke in harmer v. bean (1853) 3 c. & k. 307 which shows that the operation of a concurrent lease of the kind is to transfer part of the reversion of the landlord to the lessee, co that after the execution of such concurrent lease, the landlord cannot.....
Judgment:

Ashutosh Mookerjee, J.

1. This is an appeal by the plaintiffs in a suit for recovery of arrears of rent of a tract of homestead land. The rent is claimed at the rate of Rs. 7-6 annas 12 1/2 gandas per annum for the years 1318 to 1320 B S, and for the first nine months of the year 1321 It is not disputed that Sri Narain Santra, Jagan Nath Santra, Raj Narain Santra and Deb Narain Santra were owners of the disputed land in equal shares. There is also no controversy that the contesting defendants held the land as tenants under the Santras at the rate of rent mentioned in the plaint. The plaintiffs claim to have derived title from the Santras, as to one halt of the property, under a conveyance dated the 3rd August 1911, and as to the ether half, under a permanent lease dated the 15th February 1907. The defendants resisted the claim on a three-fold ground, namely, first, that the alleged title of the plaintiffs as purchasers was inoperative, because the interest of their vendors had passed away to strangers before the date of their conveyance; secondly, that the alleged title of the plaintiffs as tenure-holders was inoperative, because the defendants had obtained a conveyance of the identical share from the Santras before the lease to the plaintiffs and, thirdly, that if the title of the, plaintiffs was found to have been subsisting at the date of the suit and the title of the defendants was negatived, the plaintiffs were still not entitled to realise rent from the defendants, as both of them held as tenants of co-ordinate rank under the Santras. The Trial Court found partially in favour of the plaintiffs and decreed the suit to that extent. On appeal, the Subordinate Judge has reversed this decision. On the present appeal, the following points have emerged for consideration from the arguments addressed to us; first, did the plaintiffs acquire the title of the Santras as to one-half of the land, under their conveyance dated the 3rd August 1911, secondly, did the plaintiffs acquire, under their permanent lease from the Santras dated the 15th February 1907 such an interest in the other half of the land as must have priority over the interest acquired by the defendants under their conveyance from the Santras dated the 25th April 1910; thirdly, does the relationship of landlord and tenant exist between the parties, in view of the nature of the lease-hold interest created by the Santras in favour of the plaintiffs under the lease dated the 15th February 1907, and the character of the tenancy of the defendants which is alleged to have been held under the Santras at a uniform rate of rent since at least 1854.

2. As regards the first question, there is no room for controversy that the plaintiffs did not acquire the title of the Santras in one-half of the land under their purchase dated the 3rd August 1911. It appears that the interest of their vendors had been sold away in execution proceedings on the 17th June 1898 and the 17th March 1899. At the time of the sale by the Santras to the plaintiffs on the 3rd August 1911, they had no title to convey Consequently, on the most favourable view of the case, the claim of the plaintiffs for recovery of arrears of rent cannot possibly be sustained in excess of a half share.

3. As regards the second question, it is plain that the defendants did not, under their conveyance from the Santras, dated the 2nd February 1910, acquire a title which could prevail over that of the plaintiffs. It appears that on the 15th February 1907 two of the Santras granted a mourasi mokarari lease to the plaintiffs in respect of all their properties in the village of Santragachi, for a premium of Rs. 17,800 at an annual rent of Rs. 1,200. Eighty-five parcels were specified in the Schedule and it was expressly stated that if there after any other parcel of land, was discovered to have been omitted by mistake a supplementary deed would be executed in respect thereof. The contingency contemplated happened. It was discovered that the tenancy now in dispute had been left out by mistake from the list of mourasi mokarari tenancies in the Schedule to the lease. The Santras, however, failed to execute the requisite supplementary deed in the terms of their agreement. The result was that on the 8th July 1909, the plaintiff sued the Santras to enforce specific performance of the agreement. That suit was decreed on the 20th April 1910. It was during the pendency of this litigation that the Santras gold away their interest on the 2nd February 1910 to the present defendants, it is manifest that the defendants were purchasers pendente lite and the interest they purchased was bound by the decree in the suit for specific performance. It was ruled by this Court in the case of Moti Lal Pal v. Preo Nath Mittra 3 Ind. Cas. 696 : C.L.R.J. 96 : 13 C.W.N. 226 that a suit for specific performance of a contract for transfer of immoveable property operates as lis pendens, in other words, in a suit against the vendor of real estate for specific performance, his conveyance of the legal title after suit was brought would not suspend the proceeding or defeat the title under the decree of the Court, The obvious reason for this is that if when the jurisdiction of the Court has once attached, it could be ousted by the transfer of the defendant's interest, there would be no end to litigation and justice would be defeated. Consequently, when such a suit for specific performance is ended by a final decree transferring the title, that title relates back to the date of the agreement on which the suit is based, and the Court will not permit its decree to be rendered nugatory by intermediate conveyances. The same view was adopted in the case of Pramatha Nath Roy v. Jagannath Kishore Lal Singh 16 Ind. Cas. 359 : 17 C.L.J. 427. There is consequently no escape from the position that the title of the plaintiffs which was established by the decree made in their favour in the suit for specific performance relates back to the 15th February 1907, the date of the mourasi mokarari lease granted to them by the Santras. The inference follows that the conveyance taken by the defendants from the Santras on the 2nd February 1910, does not afford them effective protection against the claim of the plaintiffs based on their leasehold title dated the 15th February 1907.

4. At regards the third question, it is clear that the position which results from our determination of the previous points lies in a nutshell. The defendants have been tenants under the Santras for a long series of years; they assert, indeed, that the holding is mourasi mokarari, that is, held from generation to generation at a fixed rent. While the defendants were thus in occupation as tenants, their landlords, the Santras, granted to the plaintiffs on the 15th February 1907, a mourasi mokarari lease of a large tract of land inclusive of the disputed area. The plaintiffs claim to recover from the defendants the rent which would have been otherwise payable to the Santras. The defendants answer that the tenancy of the plaintiffs is co ordinate in rank with their own tenancy, and the plaintiffs cannot consequently be deemed to be their landlords. Here we may state parenthetically that the plaintiffs do not admit that the tenancy of the defendants is mourasi mokarari; but we shall assume for our present purpose that the defendants have in fact the status alleged by them, We are of opinion that even on this assumption, the defendants have no answer to the claim of the plaintiffs, because a Zamindar or tenure-holder who has carved out a tenure or under tenure, as the case may be, is competent to interpose, between himself and his tenant, an intermediate holder who may realise the rent payable to himself by his original tenant. This proposition is recognised in a series of cases in this Court. In Raj Kumar Majumdar v. Probal Chandra Ganguli 9 C.W.N. 656 it was ruled that a Zamindar, who had created a patni had power to grant away a portion of his remaining rights and to create a tenure intermediate between himself and the patnidar with the result that the intermediate holder would Income entitled to demand the rent which the patnidar would have been otherwise bound to pay to the superior landlord, The Court pointed cut, however, that the interposition of such an intermediate interest could not operate in derogation of the lights of the original patnidar or degrade him to the rack of a darpatnidar. The essence of the matter was that while the relationship of landlord and tenant originally existed between the Zemindar and the patnidar, after the interposition of the intermediate tenure, the new tenure-holder became tenant under the Zemindar at the same time that he himself became the landlord of the patnidar. This decision is not opposed to the case of Kalam Sheikh v. Panchu Mandal 2 B.L.R.A.C.J. 252 : 11 W.R. 128 : 1 Ind. Dec. (N S.) 816, There the defendant was under-tenant; is respect of lands which his lessor held under a mudafat from the Zemindar. Subsequently, the lessor left and the Zemindar gave to the defendant a patta for part of the lands covered by the mudafat, and, later on, to the plaintiff a patta for the whole land covered by the original mudofat. The plaintiff instituted a suit against the defendant for a kabuliyat at an enhanced rate. The defendant answered that there was no relationship of landlord and tenant between himself and the plaintiff. Mr. Justice Dawarka Nath Mitter upheld this contention not on the ground that the Zamindar could not interpose the plaintiff as lessee between himself and the defendant, but on the ground that upon a true construction of the lease granted to the plaintiff, it could not be maintained that the Zamindar had assigned to him any of his rights to recover or enhance the rent reserved in the patta he had granted to the defendant. We are not unmindful that an apparently contrary view was indicated in the case of Jarraw Kumari Saheba v. Hanifuddin Akanda 4 Ind. Cas. 471 : 14 C.W.N. 389 where the earlier decision in Raj Kumar Majumdar v. Probal Chanara Ganguli 9 C.W.N. 656 was not brought to the notice of the Court. But the dictum in that case does not controvert the proposition that when a Zemindar or tenure holder has treated a tenure or under tenure, he is still competent to interpose between himself and his grantee an intermediate tenure or under-tenure, The dictum rather casts doubt upon the applicability of this general rule to the case of patni taluks whose incidents are governed by the special rules formulated in Regulation VIII of 1819; it is also plain that the doubt was expressed, because no authority had been sited to support the view that a Zamindar could lawfully create a permanent tenure between his own interest and a patni taluk of the first degree. In the case before us, the status of the defendant is not that of a patnidar, and consequently we are not pressed by the considerations which carried weight with the Court in the case of Jarraw Kumari Saheba v. Hanifuddin Akanda 4 Ind. Cas. 471 : 14 C.W.N. 389, Apart from this, we find that the decision in Raj Kumar Majumdar v. Probal Chandra Ganguli 9 C.W.N. 656 was accepted as good law by Mr. Justice Sarada Charan Mitra in Madu Sudan v. Debendra Nath 7 C.L.J. 23 (Short Notes) and Ram Kanai v. Fakir Chand 8 C.W.N. 435 and in the case of Nilamber Ghosh v. Mir Mohasanuddin 67 Ind. Cas. 105 : 34 C.L.J. 77 when Carnduff and Richardson, JJ., were pressed by the apparent conflict between the decision in Raj Kumar Majumdar v. Probal Chandra. Ganguli 9 C.W.N. 656 and Jarraw Kumari Saheba v. Hanifuddin Akanda 4 Ind. Cas. 471 : 14 C.W.N. 389 they followed the earlier decision as binding on them. The view we take is also supported by the decision in Ram Anant Singh v. Shankar Singh 30 A. 369; A.W.N. (1903) 152 : 5 A.L.J. 423. In that case, Sir John Stanley, Chief Justice, held that where a lessor executes two concurrent leases of the same property, that is to say, two leases in which the term of the second commences before the term of the first has expired, the second lessee is to be taken as the assignee of the lessor's interest daring the concurrent portion of the terms, and the lessor, after the execution of the second lease, tan recover rent only from the second and not from the first lessee. The Chief Justice referred to the decision of Baron Parke in Harmer v. Bean (1853) 3 C. & K. 307 which shows that the operation of a concurrent lease of the kind is to transfer part of the reversion of the landlord to the lessee, co that after the execution of such concurrent lease, the landlord cannot recover as against the first lessee any rent due thereafter. To the game effect is the decision in Burrows v. Gradin (1843) 1 Dowl. & L. 213 : 12 L.J.Q.B. 333 : 67 R.R. 853 where Wightman, J., ruled that a mortgagee may maintain an action for use and occupation against a party who was tenant to the mortgagor before the mortgage, although subsequently to the mortgage, the mortgagor had made an alteration in the promises mortgaged and in the amount of rent. The same principle was recognised by Lord Alverstone, C.J. in Wordsley Brewery Co. v. Halford (1901) 90 L.T. 89 when he ruled that a landlord who, during the currency of a yearly tenancy, grants a lease of the premises to a third person; cannot, during the term granted by such lease, give the yearly tenant notice to quit; in support of this principle, reliance was plated upon Doe d. Agar v. Brown (1853) 2 El. & Bl. 331 : 95 R.R. 580: 22 L.J.Q.B. 432 : 17 Jur. 1161 : 118 M.E. 791 in which Lord Campbell, C. J., had held that where a party entitled to a remainder in tail expectant upon the determination of a life estate, grants a term of years to commence immediately, the grantee, without entry, takes an immediate vested estate carved out of the remainder, so that the conveyance is as effectual as if attornment had been made by the tenant of the particular estate. This was overlooked by Page wood, V.C., in Edwards v. Wickwar (1866) 1 Eg. 408: 35 L.J. Ch. 309 : 12 Jur. (N.S)158 : 14 W.R. 363 but was re-affirmed by Ridley and Lush, JJ. in Horn v. Beard (1912) 3 K.B. 181 : 31 L.J.K.B. 936 : 107 L.T. 87. Indeed it is now settled law that if, after a lease has been granted, another lease of the same premises is granted, the term being concurrent with that of the existing lease, the concurrent lease, provided it is made by deed, operates as a grant of the reversion upon the existing term. If the concurrent term is equal to or exceeds the residue of the existing term, the concurrent lessee is entitled to the rent for the whole of such residue and afterwards to possession for the remainder, if any, of his own term; if the concurrent term is less than the existing term, the concurrent lessee is entitled to the rent during his own term; Neale v. Mackenzie (1836) 1 M. & W. 747 : 46 R.R. 478 : 3 Gale 174 : 6 L.J. (N.S ) Ex. 263 : 150 E.R. 635, The principles thus expounded and applied justify the inference that a landlord who has created a tenancy is still competent to carve out another tenancy from the interest he has reserved and interpose the same between himself and his first tenant, subject to the qualification that he cannot thereby prejudice the position of the first tenant, take away or destroy the value or effect of the prior interest transferred, or, limit its extent or restrain its operation, for the maxim applies that no man can derogate from his own grant, which has sometimes been regarded as in essence of a formulation of a principle of estoppel. This may be illustrated by a concrete example- A, a Zemindar, settles a tract of vacant land with 5, an agriculturist, with a view to enable him to bring it under cultivation, A cannot thereafter settle the same parcel with C, so as to entitle C to enter into actual occupation and cultivate the land. But there is no reason why A should not grant a settlement to C, and thereby enable C to realise from B the rent which would otherwise be payable by B to A. Tested from this point of view, how do the parties to this litigation stand? The defendants were originally tenants directly under the Santras; assume for the purpose of argument, and for that purpose alone, that their tenancy was held at a fixed rate of rent from generation to generation. On the 15th February 1907, the Santras granted to the plaintiffs a permanent lease of all their lands in the village, including the lands covered by the tenancy of the defendants; this authorised the plaintiffs to realise rent from all tenants who might be in occupation including mourasi mokarari tenants. It is difficult to appreciate on what principle the view can possibly be maintained that the plaintiffs are not competent to realise, as they seek to do by this suit, the rent which would have been otherwise payable to the Santras. It is plainly immaterial that the defendants assert that they themselves, as also the plaintiffs, have mourasi mokarari rights. When the Santras granted a lease to the plaintiffs, they did not derogate from their previous grant, and the plaintiffs do not allege that the lease in their own favour has in any manner operated to the detriment of such rights as might have been actually possessed at the time by the defendants. It is consequently need-less to investigate whether the defendants hold a mourasi mokarari tenancy, for even on the assumption that their allegation is well founded, it does not afford an answer to the claim of the plaintiffs.

5. The result is that this appeal is allowed, the decree of the Subordinate Judge set aside, and that of the Court of first instance restored. The appellants are entitled to all costs in this Court as also in the Court of the Subordinate Judge inclusive of the costs of the review proceedings,

Buckland, J.

6. I agree.


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