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Rup Chand Ghose Vs. Narendra Krishna Ghose - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported inAIR1915Cal764,28Ind.Cas.683
AppellantRup Chand Ghose
RespondentNarendra Krishna Ghose
Cases ReferredCole v. Blake
Excerpt:
bengal tenancy act ( viii of 1885), sections 12, 56 (3) - permanent tenure, transfer of--landlord, statutory receipt demanded from--tender, if vitiated--no condition imposed on landlord--money not to be refused by landlord. - .....in occupation. the transferee declined to accept a receipt in this form. the result was that the money tendered by him was not accepted by the landlord, who subsequently instituted this suit for recovery of arrears of rent with interest and cesses. the substantial question for determination is whether there was a valid tender, as the appellant maintains, or whether, as the landlord contends, the tender was clogged with such conditions as entitled him to refuse the money. this question must be determined with reference to the rights of the parties as they stood at the time when the tender was made. the appellant contends that he was the tenant of the tenure at that time and that under the provisions of the bengal tenancy act he was entitled, on payment of the rent due, to receive a.....
Judgment:

1. This is an appeal by the eighth defendant in a suit for arrears of rent. The only point in controversy between the parties relates to the claim for interest. The defendant contends that he is not liable for the interest, because he made a valid tender of rent to the landlord before the suit was brought and such tender was improperly refused. The Courts below have overruled tins objection and have held him responsible for interest. On the present appeal, the contention has been reiterated that there was a valid tender of rent which was not accepted, because the tenant asked for a receipt in the statutory form. To appreciate the point in controversy, we must refer briefly to the terms of the contract between the parties.

2. On the 24th August 1898, Annoda Prasad Mojumdar, represented in this suit by the first seven defendants, obtained a permanent and transferable tenure from the plaintiff. The tenure-holder gave collateral security, at the same time, to the landlord for the rent as also for the due fulfilment of various obligations which he undertook under the terms of the contract. On the 19th March 1904, Annoda Prasad Mojumdar transferred the tenure to Rup Chand Ghose, now appellant before us. Under this conveyance, Rup Chand Ghose undertook to indemnify his vendor if the latter should be ever called upon by the landlord to fulfil his obligations under the terms of the original lease. It was also expressly stated that if the transferee could get his name registered in the books of the landlord, and on himself furnishing security, could obtain a return of the security bond given by the original tenant, the transferee would stand released from his obligation to his vendor. It is common case of the parties that rent was tendered to the landlord on behalf of the transferee, who claimed a receipt whereon his name should be entered as the tenant. The landlord refused to give a receipt in this form and offered to grant a receipt in which Annoda Prasad Mojumdar was to be named as the original tenant and Rup Chand Ghose was to be described as the person in occupation. The transferee declined to accept a receipt in this form. The result was that the money tendered by him was not accepted by the landlord, who subsequently instituted this suit for recovery of arrears of rent with interest and cesses. The substantial question for determination is whether there was a valid tender, as the appellant maintains, or whether, as the landlord contends, the tender was clogged with such conditions as entitled him to refuse the money. This question must be determined with reference to the rights of the parties as they stood at the time when the tender was made. The appellant contends that he was the tenant of the tenure at that time and that under the provisions of the Bengal Tenancy Act he was entitled, on payment of the rent due, to receive a receipt in which his name was bound to appear as that of the tenant. This view has been controverted on behalf of the landlord. In our opinion, the position assumed by the landlord cannot possibly be supported.

3. It was ruled by this Court in the case of Kristo Bulluv Ghose v. Kristo Lal Singh 16 C. 642 that the transfer of a permanent tenure under Section 12 of the Bengal Tenancy Act is complete as soon as the document is registered, in other words, as stated in Joy Gobind v. Monmotha Nath. 33 C. 580 a valid transfer under Section 12 of the Bengal Tenancy Act operates to discharge the transferor from the liability to pay rent, which thereupon, passes to the transferee. This view has been accepted as incontestable in a long series of dicisions, amongst which may be mentioned Chintamoni Dutt v. Rash Behari Mondul 19 C. 17; Hemendra Nath Mukerjee v. Kumar Nath Roy 12 C.W.N. 478; Kishori Raman v. Ananta Ram 10 C.W.N. 270 and Girish Chandra Guho v. Khagendra Nath Chattopadhyaya 9 Ind. Cas. 101 : 13 C.L.J. 613 : 16 C.W.N. 64. It follows, consequently, that in the case before us, after the registration of the conveyance executed by the original tenant on the 19th March 1904, the transferee became, by operation of law, the tenant of the tenure and as a necessary consequence the transferor ceased to be such tenant. This does not, however, imply that the transferor was absolved from liability under the terms of the contract between him and the landlord, it is conceivable that a person may cease to be tenant and yet continue liable to his landlord under his personal covenant. What then wore the rights of the transferee in this case? Under Section 56, Clause (3), of the Bengal Tenancy Act every tenant who makes a payment on account of rent to his landlord is entitled to obtain forthwith from the landlord a written receipt for the rent paid by him signed by the landlord; and the receipt and counter-foil must specify such of the several particulars shown in the form of receipt given in Schedule II as can be specified by the landlord at the time of payment. The form of receipt given in the Schedule shows that the landlord must specify the name of the tenant, it follows accordingly that the transferee, when he tendered the rent as tenant, was entitled to claim a receipt with his name thereon as that of the tenant. The demand which he made for a receipt in this form was strictly, in accord with the provisions of the Statute, and the landlord had no valid reason, if he accepted the money, to withhold the receipt in this form. But it has been argued on behalf of the landlord that the decision of the Judicial Committee in Naba Kumari Debi v. Behari Lal Sen 34 C. 902 at p. 908 : 11 C.W.N. 865 : 9 Bom. L.R. 846 : 17 M.L.J. 397 : 4 A.L.J. 570 : 6 C.L.J. 122 : 34 I.A. 160 (P.C.) : 2 M.L.T. 433 shows that the transferee would not have been prejudiced if he had accepted a receipt in the form offered by the landlord and should accordingly have accepted such receipt. There are two obvious answers to this contention. In the first place, the landlord did not propose to give the tenant a receipt containing a statement in the terms mentioned in the judgment of the Judicial Committee. In the second place, the landlord proposed to insert in the receipt a statement which would have undoubtedly compromised the position of the transferee: the landlord proposed to describe the original tenant as still the tenant of the tenure and the transferee as merely the person in occupation thereof. This would imply that the original tenant was still the tenant of the tenure, and that the transferee was not the tenant thereof, although he might be in possession of the land under some arrangement with the tenant. In our opinion, the transferee was entirely within his rights when he demanded a receipt in the form prescribed by the Bengal Tenancy Act with a statement therein that he was the tenant. The landlord must consequently be deemed to have improperly declined to accept the money.

4. But it has been argued for the landlord-respondent that the view just indicated is contrary to well-settled principles of English I jaw and that a tender with a condition or icservation is not a valid tender. In support of this contention, reference has been made to judicial decisions to which we may very briefly refer.

5. In Huxham v. Smith (1809) 2 Camp. 19 : 11 R.R. 651 a tender of payment was made upon the condition that a particular document should be given up. It was held that it was not a legal tender. In Griffith v. Hodges 1 C. & P. 419 Abbott, C.J. said, 'no man can insist on a receipt in full of all demands, and if a man makes a tender of money, insisting at the same time on a receipt in full of all demands, I have no doubt that such a tender is bad.' In Cheminant v. Thornton (1825) 2 C. & P. 50 a person called upon his creditor, tendered him ten sovereigns and said he might take those ten sovereigns in full of his demand. It was ruled by Abbott, C.J., that the tender 'was not good, being made in full of the demand.' In Peacock v. Dickerson (1825) 2 C. & P. 51 the debtor offered the creditor three pounds, three shillings and eight pence in cash, which the creditor was willing to take in part, but the debtor said that he owed him no more and took up the money again and would not let the creditor take in part. Abbott, C.J., said: 'This tender is not good, a party tendering money should tender it without making any terms and should have it still open to the one party to say that more was due, and to the other that the sum tendered was sufficient.' In Mitchell v. King (1833) 6 C. & P. 237 : 40 R.R. 810 Vaughan, B. said: 'A tender, to be legal tender, must be unconditional. If the money is put down only on a condition that a party will take it as a settlement, that is not a good tender.... A tender clogged with the terms that the money is to be taken as a settlement is not good.' To the same effect are the decisions in Jennigs v. Major (1837) 8 C. & P. 64; Sutton v. Hawkins (1838) 8 C. & P. 259; Hustings v. Thorley (1838) 8 C. & P. 573 and Robinson v. Ferreday (1839) 8 C. & P. 752. It maybe observed, however, with regard to the case of Hastings v. Thorley (1838) 8 C. & P. 573 that it was subsequently doubted by hopes, J., in Jones v. Bridgman, (1878) 39 L.T. 500 and a more liberal view has sometimes been taken. In Bowen v. Owen (1847) 11 Q.B. 130 : 17 L.J.Q.B. 5 : 11 Jur. 972 : 75 R.R. 306 : 116 E.R. 425 a tenant sent a person to his landlord with a letter saying 'I have sent with the bearer a sum of twenty-six pounds, five shillings and seven pence...to settle one year's rent of Nant-y-pair' and the bearer informed the landlord that he had the money with him to pay; but the latter refused, saying that there was more than that due. The bearer left, but afterwards returned and said that he had a few pounds in his pocket in addition to the sum named in the letter; but the landlord again refused saying there was more due. It was argued on the landlord's behalf that these offers, coupled with the letter, amounted only to a conditional tender and the learned Judge who tried the case ruled that that was so. But the King's Bench hold differently, Earl, J., saying, 'the person making a, tender has the right to exclude presumptions against himself by saying 'I pay this as the whole that is due', but, if he requires the other party to accept it as all that is due, that is imposing a condition; and, when the offer is so made, the creditor may refuse to consider it as a tender.' The cases of Strong V. Harvey (1825) 3 Bing. 304 : 11 Moore 72 : 4 L.J.C.P. (o.s.) 57 : 130 E.R. 530 and Foord v. Noll (1842) 2 Dowl. (N.S.) 617 : 12 L.J.C.P. 2 support the same view. But these cases are of no assistance to the respondent. The fundamental principle which underlies them is that the debtor who made the tender sought to impose a condition on which, it was held, he was not entitled to insist under the law. We need not now consider whether the view taken in these cases should be applied in similar cases in this country as embodying a rule of justice, equity and good conscience. In so far as this Court is concerned, it was ruled in the case of Jagat Tarini Dasi v. Naba Gopal Chaki 5 C.L.J. 270 : 34 C. 305 that a tender is not vitiated because a receipt is asked. This is in accordance with the decision in Jones v. Arthur (1840) 8 Dowl. P.C. 442 : 59 R.R. 583 : 4 Jur. 859 and Richardson v. Jackson (1841) 8 M. & W. 298 : 9 Dowl. P.C. 715 : 10 L.J. Ex. 303 though a different view has sometimes been taken Leung v. Meader (1824) 1 C. & P. 257; Cole v. Blake (1793) 1 Peake 238 : 3 R.R. 681. It is plain, in the case before us, that the transferee as tenant was entitled, under the provisions of the Bengal Tenancy Act, to demand a receipt in a particular form. When he tendered the money with a request for a receipt in the statutory form, he did not seek to impose on the landlord any condition on which he was not entitled to insist and it follows that the money validly tendered was improperly refused by the landlord.

6. The result is that this appeal is allowed, the decree of the District Judge varied and the claim for interest disallowed. The appellant will have his costs in all the Courts, and a self-contained decree will be drawn up in this Court. In view of the conduct of the respondent who has persisted in an obviously unfounded and vexatious claim, we assess the hearing-fee in this Court at live gold mohurs.


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